The Honorable Joe Yates State Senator 1812 Clark Bentonville, AR 72712-6829
Dear Senator Yates:
This is in response to your request for an opinion on the following questions:
(1) Under Arkansas Environmental Law, Sections 8-6-401 through 8-6-417, does the officer of the law have to see the person in the act of littering or can a citizen observe the act and file a complaint?
(2) Can evidence found in a pile of litter be used to bring about an arrest when that trash can be traced to a person responsible for properly disposing of the litter?
In my opinion, the answer to both questions is found in the Litter Control Act itself, A.C.A. § 8-6-401 to -417 (1987).
The penalty provision of the Litter Control Act, § 8-6-404, appears to contemplate the participation of citizens in enforcing the Act. This intent is evidenced by § 8-6-404(a)(1)(B), which provides:
Any time any person supplies information to law enforcement officials which leads to the conviction of a person who violates this subchapter, the person giving such information is entitled to a reward of one-half (1/2) the amount imposed by the fine, if any, to the violator.
The same language appears in § 8-6-404(c)(2). Obviously, the Act not only envisions, but encourages citizens to report incidents of littering to law enforcement officials, and, necessarily, convictions under the Act could be based on such reports.
The Act does not so clearly address your second question. Nevertheless, it is my opinion that the Act contemplates the use of any evidence discovered in litter that would assist in identifying the person responsible for its improper disposal.See, e.g., § 8-6-413, which requires notice to owners of junk motor vehicles taken into custody, to the extent the owner is ascertainable. Of course, the use of such evidence in any court proceeding would be subject to the Arkansas Rules of Evidence to the extent that those Rules ordinarily apply to court proceedings. See A.R.E. Rules 101 and 1101.
The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General Catherine Templeton.
Sincerely,
Winston Bryant Attorney General