Com. v. Carlson

• Decision Date: 13 January 1998
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Brent James CARLSON, Appellant.
• Court: Pennsylvania Superior Court

Page 468

705 A.2d 468

COMMONWEALTH of Pennsylvania, Appellee, v. Brent James CARLSON, Appellant.

Superior Court of Pennsylvania.

Submitted Sept. 29, 1997.

Filed Jan. 13, 1998.

Jack W. Cline, Mercer, for appellant.

David A. Hepting, Asst. Dist. Atty., Butler, for Com., appellee.

Before KELLY, HUDOCK and BROSKY, JJ.

HUDOCK, Judge:

This is an appeal from the judgment of sentence after a jury convicted Appellant of driving under the influence of alcohol. ¹ Appellant was subsequently sentenced to a term of 90 to 180 days incarceration and a fine of $500.00, followed by two years of probation. This direct appeal followed. We reverse and remand.

The pertinent facts may be summarized as follows: Late in the evening on October 13, 1995, Arthur Brunst (Brunst), a wildlife conservation officer with the Pennsylvania Game Commission, and a fellow officer, had retrieved the carcass of a deer that had been shot for causing crop damage. Brunst was transporting the carcass north on Route 308, in Butler County, with the intention of depositing it at the game lands building located just off the highway. Prior to reaching the entrance to the game lands building, Brunst noticed Appellant's vehicle in front of him, and he observed the vehicle weave and cross the center line one time.

Brunst then reached the entrance to the game lands building, but rather than deliver the deer carcass as intended, he decided to follow Appellant's vehicle. He followed Appellant for approximately three-quarters of a mile to a mile, during which time he observed the vehicle cross the center line once more, and drop off the right edge of the road seven times. Appellant then exited Route 308 to a side road, and Brunst executed a stop of his vehicle. After obtaining Appellant's identification, Brunst radioed his dispatcher and requested that the Pennsylvania State Police be contacted. Upon being informed that it would be one hour until the nearest unit was available, Brunst proceeded to personally effect an arrest of Appellant for driving under the influence.

Appellant's sole issue on appeal raises a question of first impression in our Courts: What is the extent of the arrest powers of a wildlife conservation officer of the Pennsylvania Game Commission? The suppression court upheld the legality of Brunst's arrest of Appellant under these facts, and Appellant now challenges this conclusion.

Our standard of review is as follows:

In an appeal from the denial of a motion to suppress our role is to determine whether the record supports the suppression court's factual findings and the legitimacy of the inferences and legal conclusions drawn from those findings. In making this determination, we may consider only the evidence of the prosecution's witnesses and so much of the defense as, fairly read in the context of the record as a whole, remains uncontradicted. When the factual findings of the suppression court are supported by the evidence, we may reverse only if there is an error in the legal conclusions drawn from those factual findings.

Commonwealth v. Rosario, 438 Pa.Super. 241, 652 A.2d 354, 365 (1994) (en banc ) (quoting Commonwealth v. Foster, 425 Pa.Super. 61, 624 A.2d 144, 147 (1993)). The factual findings of the suppression court, which are supported by the record, are not in dispute. Appellant challenges the legal conclusion drawn from those facts.

The pertinent portion of the Game and Wildlife Code reads as follows:

§ 901. Powers and duties of enforcement officers

Powers.--Any officer whose duty it is to enforce this title or any officer investigating any alleged violation of this title shall have the power and duty to:

(1) Enforce all laws of this Commonwealth relating to game or wildlife and arrest any person who has violated any of the provisions of this title while in pursuit of that person immediately following the violation.

* * *

(17) When acting within the scope of the officer's employment, pursue, apprehend or arrest any individual suspected of violating any provision of Title 18 (relating to crimes and offenses) or any other offense classified as a misdemeanor or felony. The officer shall also have the power to serve and execute warrants issued by the proper authorities for offenses referred to in this paragraph and to serve subpoenas issued for examination. All powers as provided for in this paragraph will be limited by such administrative procedure as the director, with the approval of the commission, shall proscribe. The regulations shall be promulgated within 90 days of the effective date of this paragraph.

34 Pa.C.S.A. § 901(a). ²

The Game Commission has further defined the powers of wildlife conservation officers as follows § 131.6. Administration of police powers by wildlife conservation officers.

(a) General policy.

(1) The primary responsibility of a wildlife conservation officer is the enforcement of the act and this part.

(2) Section 901(17) of the act (relating to powers and duties of enforcement officers) confers police powers upon wildlife conservation officers acting within the scope of their employment.

(3) It is the policy of the Commission that general law enforcement activities shall be the responsibility of the appropriate law enforcement agencies empowered to conduct those activities. Complaints or information received shall be forwarded to the enforcement agency having jurisdiction.

(b) Powers and procedures.

(1) A wildlife conservation officer may arrest for offenses enumerated in subsection (c) which constitute misdemeanors or felonies when the offenses occur in the officer's presence and while acting within the scope of the officer's employment.

(2) A wildlife conservation officer shall arrest for offenses enumerated in subsection (c) only when necessary to protect life and property. The officer shall immediately notify the appropriate law enforcement agency. Evidence and information in the possession of the officer shall be transmitted to the law enforcement agency responsible for further investigation or prosecution, or both.

(3) A wildlife conservation officer may institute proceedings for violations listed in subsection (c) that are misdemeanors or felonies which occur on State game lands or arise out of Commission operations.

(c) Violations. A wildlife conservation officer may, subject to the limitations in subsections (a) and (b), act only in cases of violations of the following provisions:

* * *

(3) Title 75 of the Pennsylvania Consolidated Statutes §§ 3731, 3732, 3735 and 3742.

(d) Construction. The administrative procedures in this section are intended to serve as guidelines for wildlife conservation officers in the performance of their duties. The administrative limitations in this subchapter do not invalidate an arrest, prosecution or law enforcement action incident thereto which a wildlife conservation officer may undertake, but which exceeds the limitations of subsections (a)--(c). Whenever wildlife conservation officers are acting within the scope of their employment, the principles of justification that apply to peace officers under 18 Pa.C.S. Chapter 5 (relating to principles of justification) shall apply to their acts.

58 Pa.Code § 131.6.

As a misdemeanor, driving under the influence is clearly one of the offenses for which a wildlife conservation officer is authorized to arrest under subsection 901(a)(17). Moreover, the Game Commission regulations (Regulations) specifically enumerate violations of 75 Pa.C.S.A. section 3731 as one category of offenses for which a wildlife conservation officer may arrest. However, it is also clear that a wildlife conservation officer is authorized to arrest for such an offense only "when acting within the scope of the officer's employment." 34 Pa.C.S.A. § 901(a)(17). Thus, in deciding whether Brunst was authorized to arrest Appellant under these facts, we must determine whether he was acting within the scope of his employment.

Brunst testified that, on the evening in question, his duty was to deposit a deer carcass at the game lands building. ³ While travelling north on Route 308 toward the game lands building, Brunst encountered Appellant's vehicle ahead of him. Brunst testified that Appellant's vehicle had crossed the center line once by the time he came upon the entrance to the game lands building. Brunst also testified that at this point Appellant had not interfered with any traffic as none was approaching from the opposite direction. Based upon this information, Brunst decided to delay the disposition of the deer carcass and to follow Appellant's vehicle. Thereafter, Brunst witnessed the additional instances of erratic driving.

Thus, while acting within the scope of his employment, Brunst witnessed one occasion where Appellant crossed the center line. Such an observance does not constitute sufficient facts for Brunst to articulate a reasonable suspicion or probable cause that Appellant was committing the offense of driving under the influence of alcohol. Compare Commonwealth v. Lawrentz, 453 Pa.Super. 118, 683 A.2d 303 (1996), alloc. den., 548 Pa. 645, 695 A.2d 784 (1997) (where police officer observed defendant's vehicle weaving for a mile to a mile and a half, and vehicle crossed center line twice, legally sufficient basis to stop for unsafe driving existed); and Commonwealth v. Hamme, 400 Pa.Super. 537, 583 A.2d 1245 (1990) (erratic driving provided sufficient reasonable basis to support investigatory stop). We note, moreover, that contrary to the ordinary instance in which a police officer stops a vehicle, under no circumstances was Brunst authorized to conduct a stop of Appellant's vehicle pursuant to a summary offense motor vehicle violation. See 34 Pa.C.S.A. § 901(a)(17), supra. Accordingly, Brunst did not possess sufficient information, while acting within the scope of his employment, to arrest for driving under the influence.

Because Brunst developed the additional information regarding Appellant's driving...