Does an Arkansas sheriff's office have to keep evidence collected during a felony investigation even if it has no evidentiary value, or can a court order it released early?
Plain-English summary
Fourth Judicial District Prosecuting Attorney Matt Durrett asked whether a county sheriff's office can release items collected during a felony case before the statutory retention period runs out, especially when those items have no evidentiary value, like a victim's personal effects. Could a court order shorten the holding period?
Attorney General Tim Griffin answered no. Section 13-4-409 sets minimum retention periods, and a sheriff's office has to hold any "item" in its possession "pursuant to" a felony case or investigation for at least that minimum period. The retention applies regardless of whether the item ends up having evidentiary weight at trial. The statute does not have an opt-out for "stuff we no longer need," and the AG found no other Arkansas law that lets a court alter the retention periods.
Once the retention period has expired, noncontraband items can be returned to the owner and contraband can be destroyed. Until then, they stay in custody.
The retention periods are:
- General felony investigation: until the statute of limitations for the most serious possible crime to which the item could be connected has lapsed.
- General felony case: 2 years after final judgment if not appealed, or 3 years after final judgment if appealed (and after any post-conviction litigation concludes).
- Capital murder, first-degree murder, second-degree murder, rape, or arson: 99 years.
- DNA: 50 years (separately under § 13-4-409(c)(2)).
If multiple subsections could apply, the longest period controls. The provisions can be read harmoniously as setting floors, not ceilings.
What this means for you
If you are a county sheriff or evidence custodian
This opinion locks in the strict reading: every item collected from a felony case stays in your custody for the full statutory window, no matter how thin its evidentiary value. There is no "we know we will never need this" carve-out and no court order can shorten it. The practical effect is that property rooms keep filling. Plan storage capacity accordingly, and document each item's retention category clearly so you can dispose of it on the earliest legal date.
When in doubt about which subsection applies (general felony investigation under (a), felony court case under (b), or specified felony case under (c)(1)), the AG says use the longest applicable period. Tracking by case number plus crime type lets you compute the right disposal date.
If you are a prosecutor
The opinion confirms that even if you never offer a piece of property at trial, the sheriff cannot release it early. If a victim or owner is asking for their property back, the answer is "after the retention period." If you want a different outcome, you have to ask the legislature, not a judge.
If you are a criminal defense attorney
The retention rule cuts both ways. It preserves potentially exculpatory items long after a conviction. If your client is in post-conviction litigation, the property in the sheriff's possession should still be there for the 3-year window after final judgment (longer if appealed). For convictions of capital murder, murder, rape, or arson, items remain in custody for 99 years, an effective never-disposed window for purposes of any actual-innocence claim.
If you are a crime victim or a property owner
If your personal items were taken as part of a felony investigation, you may have to wait years to get them back, even if they were not actually used as evidence. The minimum is the statute of limitations for the most serious possible crime the item could relate to (for a general felony investigation), or 2 to 3 years post-judgment (for a felony case), or 99 years (for the most serious felonies). Your remedy is patience, not a motion to release.
For lost-and-found or non-criminal items, A.C.A. § 13-4-410 applies a much shorter one-year holding period. If your property was just turned over to the sheriff and was not actually associated with a criminal investigation, that may be the operative rule.
If you are a county commissioner or budget officer
Property storage costs are baked in by this opinion. Sheriff's offices need physical space to hold evidence for years to decades, and any plan to reduce storage costs by releasing low-value items early conflicts with the statute. The legislative path is the only path.
Common questions
Q: A victim wants their cell phone back from a closed felony case. Can the sheriff release it now?
A: Only after the retention period for that case has run. For a general felony with no appeal, that is 2 years after final judgment. For a case that was appealed, it is 3 years after final judgment and after post-conviction litigation ends. The phone has to stay in custody until then, even if the prosecutor never offered it at trial.
Q: What if the item was taken during an investigation that never led to charges?
A: Then the retention rule under § 13-4-409(a) is "the applicable statute of limitations for the most serious possible crime to which it could be connected." The sheriff has to figure out the worst-case crime fit and hold until that statute of limitations expires.
Q: Can a circuit judge order earlier release?
A: No. The AG explicitly found no legal authority for a court to alter or shorten the retention periods. The statute sets a floor by legislative direction.
Q: What about DNA samples?
A: Section 13-4-409(c)(2) requires DNA retention for 50 years.
Q: What if an item could be classified under more than one subsection (e.g., it relates to both a general felony case and a murder investigation)?
A: Use the longest applicable period. The AG explained the subsections can be read harmoniously as setting minimum durations, so retaining for the longest period satisfies all of them.
Q: After the period runs, what happens to contraband versus noncontraband?
A: Under § 13-4-409(d), noncontraband can be returned to its owner; contraband can be disposed of or destroyed.
Q: Does this rule apply to misdemeanor cases?
A: No. Section 13-4-409 by its terms applies only to items "in the possession of a county sheriff's office pursuant to" a felony court case or investigation. Misdemeanors fall outside the statute.
Background and statutory framework
Arkansas Code § 13-4-409 is the principal evidence-retention statute for items held by county sheriffs in felony matters. Its structure:
- Subsection (a): general-felony investigations require retention until the applicable statute of limitations on the most serious possible related crime has lapsed.
- Subsection (b)(1): items held pursuant to a felony court case must be retained for 2 years after final judgment if there is no appeal.
- Subsection (b)(2)(A): if there is an appeal, retention runs 3 years after final judgment and after the conclusion of any post-conviction litigation.
- Subsection (c)(1): for the five most serious felonies (capital murder, first-degree murder, second-degree murder, rape, and arson), retention is 99 years.
- Subsection (c)(2): DNA must be retained for 50 years.
- Subsection (d): after the applicable period lapses, noncontraband items go back to their owner and contraband can be destroyed or disposed of.
The statute uses two key phrases that the AG defined:
- "Item" is read broadly, drawing on Black's Law Dictionary ("a piece of a whole") and American Heritage Dictionary ("a single article or unit; a bit of information; a detail"). It includes any objects, information, or details, not just trial evidence.
- "Pursuant to" means "in accordance with," "as authorized by," or "in carrying out" the case or investigation.
The reach of the statute is therefore broad. Anything collected and held in the course of a felony investigation or case is locked in for the statutory period, evidentiary value is irrelevant, and a court has no power to shorten the period.
A.C.A. § 13-4-410 supplies the rule for items not associated with any criminal investigation or case (lost-and-found, misplaced property): retention for one year or until the rightful owner reclaims them.
Citations and references
Statutes:
- A.C.A. § 13-4-409 (retention of items in possession of county sheriff's office)
- A.C.A. § 13-4-410 (retention of items not associated with criminal investigation)
Source dictionaries cited:
- Black's Law Dictionary (11th ed. 2019), p. 996 (defining "item")
- Black's Law Dictionary (11th ed. 2019), p. 1493 (defining "pursuant to")
- American Heritage Dictionary (5th ed. 2011), p. 932 (defining "item")
Source
Original opinion text
Opinion No. 2024-064
July 19, 2024
Mr. Matt Durrett
Prosecuting Attorney, Fourth Judicial District
280 North College Avenue, Suite 301
Fayetteville, Arkansas 72701
Dear Mr. Durrett:
I am writing in response to your request for my opinion on questions concerning the requirements for county sheriff's offices to retain and dispose of evidence.
Under A.C.A. § 13-4-409, an "item" that is "in the possession of a county sheriff's office pursuant to a felony" court case or investigation must be retained for a period of time set by statute, depending on the type of potential crime. You indicate that a county sheriff's office often collects many "items," such as "a victim's personal effects," that have "no evidentiary value [in a case] at all." You ask whether, under A.C.A. § 13-4-409(a), a sheriff's office must retain these types of items for the statutorily prescribed time, or whether they can be released under a court order.
RESPONSE
Under A.C.A. § 13-4-409, "items" collected and held by the sheriff's office "in accordance with," "as authorized by," or "in carrying out" a felony court case or investigation must be retained and then later disposed of or returned to the owner in compliance with the applicable statutes. Only after the time periods described in A.C.A. § 13-4-409 "have lapsed" may a "noncontraband" item be returned to "its owner" and a "contraband" item be disposed of or destroyed. I have found no law that would allow a court to alter the retention periods in the statute.
DISCUSSION
1. Arkansas Code Annotated § 13-4-409. Section 13-4-409 addresses the retention and disposition requirements for any "item" that is in the "possession of a county sheriff's office pursuant to" felony criminal investigations or court cases. Only after the time periods described in A.C.A. § 13-4-409 "have lapsed" may a "noncontraband" item be returned to "its owner" and a "contraband" item be disposed of or destroyed. I have found no law that would allow a court to alter the retention periods in the statute.
1.1. Specific felony criminal investigations. When any "item" is in the "possession of" a county sheriff's office "pursuant to" an "investigation of" capital murder, murder in the first degree, murder in the second degree, rape, or arson, it must be "retained for ninety-nine (99) years."
1.2. General felony criminal investigations. When any "item" is in the "possession of" a county sheriff's office "pursuant to" a "felony criminal investigation" of a crime different than those listed above, it must be "retained until the applicable statute of limitation for the most serious possible crime to which it could be connected has lapsed."
1.3. Felony court cases.
A. If appealed. When any "item" is in the "possession of" or being held by a county sheriff's office "pursuant to" a "felony court case," it must be "retained for a period of two (2) years after the date of the final judgment if there is no appeal of the conviction."
B. If not appealed. "If there is an appeal of the conviction to an appellate court," the "item" in question must "be retained for three (3) years after the final judgment is entered and after the conclusion of any post-conviction litigation."
2. "Item" and "pursuant to." Although undefined in A.C.A § 13-4-409, the word "item" commonly means "[a] piece of a whole, not necessarily separated," or "[a] single article or unit in a collection, numeration, or series" or "[a] bit of information; a detail." And the phrase "pursuant to" means "in accordance with," "as authorized by," or "in carrying out."
So A.C.A. § 13-4-409 applies not only to evidence but also to any objects, information, or details that are held by a county sheriff's office that were collected and are held "in accordance with," "as authorized by," or "in carrying out" a "felony criminal investigation," "a felony court case," or an "investigation of" capital murder, murder in the first degree, murder in the second degree, rape, or arson. If such an item is being held pursuant to a felony court case or investigation, its evidentiary weight or relevancy is irrelevant under the statute.
The initial step in determining which retention period applies is to ask why a particular "item" is being held: whether it is being held "pursuant to" a (1) "felony criminal investigation," (2) "a felony court case," or (3) an "investigation of" capital murder, murder in the first degree, murder in the second degree, rape, or arson.
3. Application. An answer to whether an item best fits under subsection (a), (b), or (c)(1) may initially appear unclear because many "items" held by a county sheriff's office could readily be classified as arising out of both an investigation and a "felony court case," or as initially being collected for one reason but are now being held for a different one.
One need not resort to the statutory-construction doctrine concerning "broad versus specific" statutes because, in my opinion, A.C.A. § 13-4-409(a), (b), and (c) can be read harmoniously. Those statutory provisions set a minimum duration to retain "items." Thus, a sheriff's office can retain an "item" for the longest applicable period, whether that is under subsection (a), (b), or (c)(1), without violating the shortest applicable period.
If an "item" is being held by a county sheriff's office because of a "felony criminal investigation" that never developed into a case, and the felony is not one specified in § 13-4-409(c)(1), the sheriff's office must retain that item "until the applicable statute of limitations for the most serious possible crime to which it could be connected has lapsed."
If an item is being held by a county sheriff's office because of a "felony court case" the sheriff's office would retain that item for two years after the final judgment, if the case were not appealed, or three years after the final judgment, if the case were appealed, except that:
- For general felonies, one would retain the item until the "applicable statute of limitation for the most serious possible crime to which it could be connected" has not yet lapsed, which means the sheriff's office would wait until that time period (and not the two or three years); or
- For capital murder, murder in the first degree, murder in the second degree, rape, or arson, the sheriff's office would need to retain the item 99 years.
Assistant Attorney General William R. Olson prepared this opinion, which I hereby approve.
Sincerely,
TIM GRIFFIN
Attorney General