State v. Henry

Robert H. Dudley, Justice,

dissenting. Ark. Code Ann. § 12-9-108(a) (1987) provides that any action taken by a police officer who fails to meet the minimum standards required by the Arkansas Commission on Law Enforcement Standards and Training “shall be held as invalid.” None of the police officers involved in this case met the minimum standards and, just as the statute mandates, I would hold their seizure of evidence was “invalid.”

The majority opinion, in circumventing the unmistakable language of the statute, cites our recent case of Moore v. State, 303 Ark. 514, 798 S.W.2d 87 (1990). In that case a non-qualified officer arrested the defendant for a traffic violation. He did nothing else. All subsequent actions were taken by qualified officers. Those subsequent actions by qualified officers resulted in obtaining evidence of five felonies. The trial court admitted the evidence in the trial for those felonies. Appellant appealed and argued that the evidence gathered by the qualified officers should be excluded under the Wong Sun or “fruit of the poisonous tree” doctrine. We refused to apply the exclusionary rule to the action of the qualified officers because (1) there had not been a violation of the Fourth Amendment and (2) the statute neither states nor implies that subsequent actions taken by qualified officers should be held “invalid.”

In this case all actions were taken by non-qualified officers. There were no subsequent actions taken by qualified officers. There is no Wong Sun or “fruit of the poisonous tree” argument. The citation of Moore is wholly inapposite. The result of the inapposite citing of Moore results in the majority’s holding that a non-qualified officer’s actions are valid. That is in direct contravention of the statute. Accordingly, I dissent.

Holt, C.J., and Brown, J., join in this dissent.