IN RE: RULES OF CRIMINAL PROCEDURE, Rule 11.1 and Form of Summons for Surety
Supreme Court of Arkansas
Opinion delivered November 18, 2004
Per Curiam. Of the proposals which the Supreme Court Committee on Criminal Practice submitted to the court, which were published for comment on July 1, 2004, today, we adopt the amendment to Rule 11.1 of the Rules of Criminal Procedure and republish the rule as set out below. We also adopt the Form of Summons for Surety as set out below and direct that the form be appended to Rule 9.5 of the Rules of Criminal Procedure. We express our gratitude to the members of the Criminal Practice Committee for their work. These amendments are effective January 1, 2005.
1. Arkansas Rule of Criminal Procedure.
Rule 11.1 Authority to search and seize pursuant to consent.
(a) An officer may conduct searches and make seizures without a search warrant or other color of authority if consent is given to the search.
(b) The state has the burden of proving by clear and positive evidence that consent to a search was freely and voluntarily given and that there was no actual or implied duress or coercion.
(c) A search of a dwelling based on consent shall not be valid under this rule unless the person giving the consent was advised of the right to refuse consent. For purposes of this subsection, a "dwelling" means a building or other structure where any person lives or which is customarily used for overnight accommodation of persons. Each unit of a structure divided into separately occupied units is itself a dwelling.
Reporter's Notes to 2004 Amendments: The 2004 amendments added subsections (b) and (c). Subsection (b) codifies the burden of proof imposed on the state beginning with such cases asScroggins v. State, 268 Ark. 261, 595 S.W.2d 219 (1980) and Rodriquez v. State, 262 Ark. 659, 559 S.W.2d 925 (1978). Arkansas Supreme Court jurisprudence on consensual searches requires the state to prove the voluntary character of consent by "clear and positive evidence" or "clear and positive testimony." Subsection (c) incorporates the holding of State v. Brown, ___ Ark. ___, ___ S.W.3d ___ (2004), which requires that a home dweller be advised of his or her right to refuse consent to a search of the dwelling.
2. "Order for Issuance of Arrest Warrant and Summons/Order for Surety to Appear;" Implementing Act 752 of 2003 Arkansas General Assembly; To be appended to Rule 9.5, Rules of Criminal Procedure.
[Order for Issuance of Arrest Warrant and Summons/Order for Surety to Appear]
IN THE CIRCUIT COURT OF _______________ COUNTY, ARKANSAS
__________________DIVISION
STATE OF ARKANSAS PLAINTIFF
VS. NO. CR
________________________ DEFENDANT
ORDER FOR ISSUANCE OF ARREST WARRANT
AND SUMMONS/ORDER FOR SURETY TO APPEAR
On this _________ day of ________________, 20____, comes on for consideration the oral motion of the State of Arkansas, by its Prosecuting Attorney for this County, requesting the forfeiture of the defendant's bail bond and issuance of an alias bench warrant for the immediate arrest of the defendant.
From the statements of the Prosecuting Attorney, a review of the records applicable to this case, and the applicable law, the Court finds that:
(1) The defendant had been directed to appear before the Court on this date at _______
o'clock _____. m. but failed to respond or to appear before the Court as directed.
(2) The defendant has been released from custody, having caused a bail bond to be
executed in favor of ____________ County, Arkansas in the penal sum of $_______________, with said defendant as principal and ______________________ as surety thereon, which bond guaranteed the defendant's appearance on said date and on all dates as directed by the Court in these proceedings.
(3) No reasonable excuse has been advanced to justify the defendant's failure to appear
as directed.
THEREFORE, it is herein considered, ordered and adjudged that the Circuit Clerk be, and hereby is directed to promptly cause an alias bench warrant to be issued for the immediate arrest of the defendant, and to cause the warrant to be delivered to the Sheriff of this Court for service upon the defendant. Upon the apprehension or surrender of the defendant, the initial appearance (bail) bond shall be $_____________________; and
IT IS FURTHER ORDERED that the Circuit Clerk be, and hereby is directed to promptly notify the surety (one or more) that the defendant should be surrendered to the Sheriff of this Court as required by the terms of the bail bond and notify the surety (one or more) to appear before the Circuit Court on the _________ day of ________________, 20_____, at ____________ o'clock ____ m. to show cause why the full amount specified in the bail bond or the money, if any, deposited in lieu of bail should not be forfeited to ____________ County.
If the surety (one or more) does not appear at the hearing scheduled by the Court, each surety on the bond shall be liable, jointly and severally, for payment of the amount forfeited. If the surety desires to be represented by an attorney, such attorney should appear at the hearing.
Entry of the Order of Forfeiture by the Court shall constitute a personal judgment against each surety on the bond, for which execution and other lawful process may issue.
The officer who is responsible for taking the bail bond is also ordered to appear before the Court on the date and at the time noted above, unless (1) the surety is a bail bondsman, or (2) the officer accepted cash in the amount of bail.
IT IS SO ORDERED on this __________ day of ________________, 20_____.
_______________________, CIRCUIT JUDGE
_______________________, CIRCUIT CLERK
BY:_______________________________________
Deputy Circuit Clerk