dissenting. I almost neglected to dissent in this case because I didn’t recognize the facts as set forth in the majority opinion as the same case argued in the briefs and considered by this court. The majority opinion appears to concern itself with whether or not a “defect” in the arrest procedure may be “cured” by other hypothetical events, without even deciding whether the arrest was in fact illegal. The question presented in this case is whether the person making the arrest had the authority to do so. The prosecuting attorney and defense counsel stipulated that the only issue before this court is “whether the arresting officer was qualified to make the arrest in this situation.”
The majority opinion recognizes that a non-qualified officer’s arrest cannot be the basis for a conviction. As stated in the majority opinion: “when the non-qualified policeman’s citation is the only charging instrument, it is the same as if no charge was ever filed. Brewer v. State, 286 Ark. 1, 688 S.W.2d 736 (1985).”
The provisions of Ark. Code Ann. § 12-9-108(a) (1987) state:
A person who does not meet the standards and qualifications set forth in this subchapter or any made by the Arkansas Commission on Law Enforcement Standards and Training shall not take any official action as a police officer, and any action taken shall be held as invalid.
The stipulation filed by the parties clearly establishes that the person making the arrest in this case does not meet the provisions of these standards. Therefore, his issuance of the citation was an invalid act, and the arrest itself was void.
It’s puzzling to me that the failure of enforcement officers to comply with the law shifts the burden of proof to the accused to demonstrate that an illegal arrest was in fact illegal, i.e., that an illegal arrest was not “cured” by other events. This is not a case where an arrest warrant was issued with some defect; rather, this is a case where the arrest itself was void. There is no law or precedent which would allow a person to be convicted of an act for which he has never been charged. See Brewer, supra.
In Brewer, the auxiliary officers did not meet the minimum standards and we held that they had no authority to make the arrest. If Brewer could not be held for the offense, nor tried, why should Davis?