Ark. Code Ann. § 12-9-108 (2026)

Research References

U. Ark. Little Rock L.J.

Survey, Criminal Law, 12 U. Ark. Little Rock L.J. 617.

Case Notes

Note. Some cases noted below were decided under former version of this section before the 1989 amendment.

Constitutionality.

The retroactive application of Acts 1989, No. 44, which amended subsection (a) to provide that action taken by non-qualified officers “shall not be held invalid”, does not violate the ex post facto clause because: 1) it does not punish as a crime an act previously committed, which was innocent when done; 2) it does not make more burdensome the punishment for a crime, after its commission; 3) it does not alter a legal rule of evidence to receive less or different testimony than was required at the time of the commission of the offense; and 4) it does not deprive a defendant of any defense available according to at the time when the act was committed. Ridenhour v. State, 305 Ark. 90, 805 S.W.2d 639 (1991); Mitchell v. State, 306 Ark. 383, 814 S.W.2d 904 (1991).

While this section does not itemize the standards required, the standards are not unconstitutionally vague because they are either set out under § 12-9-106 in particular or as part of the commission rules. McEntire v. State, 305 Ark. 470, 808 S.W.2d 762 (1991).

The retroactive application of Acts 1989, No. 44 was not prohibited by the ex post facto clauses of our federal and state constitutions where defendant was arrested on February 11, 1989, and his motion to dismiss was denied on August 17, 1989, but the trial was held on October 16, 1990, and judgment was entered on October 22, 1990; therefore, the case was pending when Acts 1989, No. 44 was enacted. Ellis v. State, 306 Ark. 461, 816 S.W.2d 164 (1991).

Construction.

This section deals with standards for employment. It does not deal with police conduct. Moore v. State, 303 Ark. 514, 798 S.W.2d 87 (1990).

Subsection (a) applies to “all of the standards,” leaving no room for an interpretation that makes a distinction between employment standards and training standards. Harshaw v. State, 313 Ark. 51, 852 S.W.2d 318 (1993).

Purpose.

The goal of this section and the goal of the exclusionary rule are different. The goal of this section is to compel police department administrators to check the backgrounds of those seeking to become officers, and to hire only psychologically qualified persons to serve as policemen, whereas, the exclusionary rule is designed to deter unlawful police conduct and compels respect for the Fourth Amendment by removing the incentive to disregard it. Moore v. State, 303 Ark. 514, 798 S.W.2d 87 (1990); Collins v. State, 304 Ark. 587, 804 S.W.2d 680 (1991).

Applicability.

Application of section, as amended in 1989, to a case pending at the time of the amendment, was not a violation of the prohibition against ex post facto laws. Harbour v. State, 305 Ark. 316, 807 S.W.2d 663 (1991).

It was proper to apply this section as amended by Acts 1989, No. 44, which removed the strictures previously invalidating actions taken by officers not meeting the commission's qualifications, to cases pending at the time Act 44 was enacted. Barnes v. State, 305 Ark. 428, 810 S.W.2d 909 (1991).

Actions by Others.

This section provides that action taken by an unqualified person “shall be held as invalid.” It does not indicate that actions taken by others should be held invalid or that an exclusionary rule should be applied. Moore v. State, 303 Ark. 514, 798 S.W.2d 87 (1990).

Authority to Arrest.

Section 16-81-106 and this section are repugnant in that § 16-81-106 provides that only certified law enforcement officers have the authority to make arrests, while this section provides that it does not matter whether officers are certified in order to make a valid arrest; however, that limited difference did not repeal the authority of law enforcement officers to make arrests, and a law officer who is vested with the authority to make arrests can issue citations. McDaniel v. State, 309 Ark. 20, 826 S.W.2d 286 (1992).

Bond.

There is no requirement under this section that officers be bonded in order to lawfully execute their duties. Dilday v. State, 300 Ark. 249, 778 S.W.2d 618 (1989).

Competency as Witness.

Law enforcement officers are not disqualified as witnesses based on whether they have met the criteria set forth by regulations promulgated by the Arkansas Commission on Law Enforcement Standards and Training. A person is presumed to be competent to be a witness. Cherry v. State, 302 Ark. 462, 791 S.W.2d 354 (1990).

Date of Compliance.

Subsection (a) does not invalidate any action taken by a police officer if the officer was not hired in compliance with the minimum standards set by the commission, as such an interpretation would place police departments in the impossible position of never being able to rectify an erroneous hiring practice from previous years. Goode v. State, 303 Ark. 609, 798 S.W.2d 430 (1990).

While deputy had not met commission standards when he was hired in 1982 because the results of the federal fingerprint search were not placed in his file as required by regulation of the commission, that deficiency was corrected by 1984 and from that point on, deputy was in compliance with the commission's standards. Goode v. State, 303 Ark. 609, 798 S.W.2d 430 (1990).

Exclusionary Rule.

After the 1989 amendment to subsection (a) of this section, the exclusionary rule no longer applied in cases involving officers who were not qualified. Harshaw v. State, 313 Ark. 51, 852 S.W.2d 318 (1993).

Failure to Be Certified.

Chief of police who was not certified during part of tenure could not validly act as law enforcement officer during that period; however, where he was validly employed by the city, his salary was reasonable, and he acted in good faith, the city was not entitled to a refund of the compensation paid him during the period of noncertification. Allen v. Titsworth, 279 Ark. 138, 649 S.W.2d 185 (1983).

The exclusionary rule should not be applied in a situation involving both qualified and unqualified officers; thus, where several law enforcement officials participated in defendant's arrest and at least one of them was properly qualified to so participate there was a valid arrest. Kittler v. State, 304 Ark. 344, 802 S.W.2d 925 (1991).

Invalid Arrest.

Defendant's conviction was not overturned where arrest was invalid because arresting deputy had not completed the training required by § 12-9-106, because an invalid arrest may call for the suppression of a confession or other evidence, but it does not entitle the defendant to be discharged from responsibility for the offense. Pipes v. State, 22 Ark. App. 235, 738 S.W.2d 423 (1987).

Arrests of the defendants were not invalidated merely because the arresting officers' file failed to contain the specified medical forms required by the commission. Barnes v. State, 305 Ark. 428, 810 S.W.2d 909 (1991).

Police Misconduct.

Where none of the five arresting officers met the minimum employment standards established by the Arkansas Commission on Law Enforcement Standards and Training the exclusionary rule need not be applied where there is no police misconduct. State v. Henry, 304 Ark. 339, 802 S.W.2d 448 (1991).

Proof of Compliance.

Where the trial court denied the defendant's request to examine the arresting officers' personnel files but then held the officers to be properly qualified, there was no prejudice to defendant, and thus no grounds for reversal, since the officer's compliance or noncompliance with the standards was established through testimony. Kittler v. State, 304 Ark. 344, 802 S.W.2d 925 (1991).

Prosecutor's Information.

Where arresting officer's psychological report did not contain recommendations pursuant to Commission on Law Enforcement Standards and Training regulations, his arrest of defendant was invalid. Freeman v. City of DeWitt, 301 Ark. 581, 787 S.W.2d 658 (1990).

Since a fingerprint check to disclose any criminal record pursuant to minimum standards for employment or appointment is mandatory rather than directory and the arresting officer's fingerprint check was completed but lost and he was hired “in the dark,” his arrest of defendant was invalid. Johnson v. City of Kensett, 301 Ark. 592, 787 S.W.2d 651 (1990).

Where the charges asserted against the defendant were by prosecutor's information and not an officer's citation, and even though the officer had made an initial arrest of the defendant on another minor traffic offense, the validity of the charging instrument and the exclusionary rule were not involved. Moore v. State, 304 Ark. 257, 801 S.W.2d 638 (1990).

Valid Arrest.

Pursuant to subsection (a), arrest by campus patrolman was not invalid although the patrolman's FBI fingerprint check had not been completed, and he had therefore not satisfied the minimum law enforcement standards when he arrested the defendant. Smith v. City of Little Rock, 305 Ark. 168, 806 S.W.2d 371 (1991).

Cited: Smith v. State, 278 Ark. 462, 648 S.W.2d 792 (1983); Lamb v. State, 21 Ark. App. 111, 730 S.W.2d 252 (1987); Huls v. State, 301 Ark. 572, 785 S.W.2d 467 (1990); Ellis v. State, 302 Ark. 597, 791 S.W.2d 370 (1990); King v. State, 304 Ark. 592, 804 S.W.2d 360 (1991); Whitaker v. State, 37 Ark. App. 112, 825 S.W.2d 827 (1992).