Opinion
Delivered November 5, 1998
Our Committee on Criminal Practice has recommended that we amend Ark. R. Crim. P. 5.5. This rule was adopted in 1976 pursuant to an American Bar Association recommendation. See American Bar Association, Standards Relating to Pretrial Release § 1.4 (Approved Draft, 1968). In 1986, the Standard from which our Rule 5.5 was derived was revised. 2 American Bar Association, Standards for Criminal Justice, Standard 10-2.4 (2d ed. Supp. 1986). The committee proposes that we substitute this revision for our current rule. The change is set out below.
We publish this proposal for comments from the bench and bar. Comments should be filed with the Clerk of the Supreme Court by February 1, 1999, and should be addressed to:
Leslie Steen, Clerk Arkansas Supreme Court Justice Building 625 Marshall Street Little Rock, AR 72201
Rule 5.5. Lawful Searches.
The issuance of a citation in lieu of arrest or continued custody does not affect the authority of a law enforcement officer to conduct an otherwise lawful search or any other investigative procedure incident to an arrest.
When an officer makes a lawful arrest, the defendant's subsequent release on citation should not affect the lawfulness of any search incident to the arrest.
Reporter's Notes: See State v. Earl, 333 Ark. 489 (1998).
This rule is derived from Standard 10-2.4 of the American Bar Association's Standards for Criminal Justice. The Commentary to this Standard states in part: "These standards are not intended to affect the officer's right to conduct [a search incident to arrest] when there has, in fact, been a good faith arrest. The fact that the officer may later decide that although a criminal charge is justified the accused will respond to a citation and that continued detention is not necessary will not affect the validity of the initial arrest and search." 2 American Bar Association, Standards for Criminal Justice, Standard 10-2.4 (2d ed. Supp. 1986).