Kopko v. Miller
| Decision Date | 28 February 2006 |
| Citation | 892 A.2d 766 |
| Parties | Larry E. KOPKO, Sheriff of Warren County, Jacob Sack, Deputy Sheriff of Warren County, Rick Hernan, District Attorney of Warren County, William H. Romine, Sheriff of Mercer County, Mark D. Yassem, Deputy Sheriff of Mercer County, James Epstein, District Attorney of Mercer County, Steven A. Evans, Sheriff of Bradford County, R. Thomas Kline, Sheriff of Cumberland County, Dawn L. Kell, Deputy Sheriff of Cumberland County, M.L. Ebert, District Attorney of Cumberland County, Appellants v. Jeffrey B. MILLER, in his Official Capacity as Commissioner of the Pennsylvania State Police of the Commonwealth of Pennsylvania, Appellee. |
| Court | Pennsylvania Supreme Court |
Andrea C. Parenti, Thomas W. King, III, Butler, for Pennsylvania Sheriff's Association.
Gerald J. Rappert, Butler, Richard A. Sheetz, Amy Zapp, Norristown, for Attorney General's Office.
Richard M. Weintraub, Pro Hac Vice, for National Sheriff's Association.
Thomas F. Jakubiak, Barbara L. Christie, Harrisburg, Leslie Anne Miller, for Jeffrey B. Miller.
Allen C. Warshaw, Glen Robert Grell, for PA Chiefs of Police Association.
Witold J. Walczak, Edward David Rogers, Philadelphia Malia N. Brink, Lawrence Evan Frankel, Naomi Mara Wyatt, Jennean Marie Endres, Philadelphia, for ACLU of PA.
Before: CAPPY, C.J., CASTILLE, NIGRO, NEWMAN, SAYLOR, EAKIN, BAER, JJ.
MAJORITY OPINION
In this case, we must determine whether sheriffs are "investigative or law enforcement officers" pursuant to the Wiretapping and Electronic Surveillance Control Act (Wiretapping Act or Act)1 and are thus eligible to receive training and certification from the Pennsylvania State Police (State Police) to conduct wiretap investigations. For the reasons that follow, we hold that sheriffs, while performing vital and necessary duties in the Commonwealth, are not "investigative or law enforcement officers" pursuant to the requirements set forth by statute. Accordingly, we affirm the Order of the Commonwealth Court that granted the Application for Summary Relief filed by the Commissioner and that denied the Application for Summary Relief filed by Appellants.
Appellants are sheriffs, deputy sheriffs (collectively, Sheriffs), and district attorneys in Warren, Mercer, Bradford, and Cumberland Counties. Appellee is the Commissioner of the State Police (Commissioner).
Sheriffs sought to attend a four-day course (the Course) that would have trained them to utilize wiretapping and electronic surveillance technology in their law enforcement activities. However, the State Police rejected their applications for the Course because of uncertainty over the authority of Sheriffs to perform wiretaps under the Wiretapping Act.
The Wiretapping Act specifically provides for training and certification by the State Police:
The Attorney General and the Commissioner of the Pennsylvania State Police shall establish a course of training in the legal and technical aspects of wiretapping and electronic surveillance as allowed or permitted by this subchapter, shall establish such regulations as they find necessary and proper for such training program and shall establish minimum standards for certification and periodic recertification of Commonwealth investigative or law enforcement officers as eligible to conduct wiretapping or electronic surveillance under this chapter.
18 Pa.C.S. § 5724.
An "investigative or law enforcement officer" is:
Any officer of the United States, of another state or political subdivision thereof, or of the Commonwealth or political subdivision thereof, who is empowered by law to conduct investigations of or to make arrests for offenses enumerated in this chapter or an equivalent crime in another jurisdiction, and any attorney authorized by law to prosecute or participate in the prosecution of such offense.
18 Pa.C.S. § 5702 (emphasis added).
There is one additional definition of "law enforcement officer" that is provided in a subsection of the Act related to exceptions at Section 5704:
As used in this paragraph, the following words and phrases shall have the meanings given to them in this subparagraph:
"Law enforcement officer." A member of the Pennsylvania State Police or an individual employed as a police officer who holds a current certificate under 53 Pa.C.S. Ch. 21 Subch. D (relating to municipal police education and training).
18 Pa.C.S. § 5704(16)(iii) (emphasis added and footnote deleted). Although two of the Sheriffs indicate that they have received Act 120 training,2 there is no allegation that any of the Sheriffs are employed as police officers pursuant to the Municipal Police Officers Education and Training Act, 53 Pa.C.S. §§ 2161-2171.3
Section 5702 refers to the "offenses enumerated in this chapter" (the "predicate offenses"), which are set forth at Section 5708, and include the following:
Section 911 ()
Section 2501 ()
Section 2502 (relating to murder)
Section 2503 ()
Section 2702 ()
Section 2706 ()
Section 2709.1 (relating to stalking)
Section 2716 ()
Section 2901 (relating to kidnapping)
Section 3121 (relating to rape)
Section 3123 ()
Section 3125 ()
Section 3301 ()
Section 3302 ()
Section 3502 (relating to burglary)
Section 3701 (relating to robbery)
Section 3921 ()
Section 3922 ()
Section 3923 ()
Section 4701 ()
Section 4702 ()
Section 5512 ()
Section 5513 ()
Section 5514 ()
Section 5516 ()
Section 6318 ()
(2) Under this title, where such offense is dangerous to life, limb or property and punishable by imprisonment for more than one year:
Section 910 ()
Section 2709(a)(4), (5), (6) or (7) (relating to harassment)
Section 3925 () Section 3926 ()
Section 3927 ()
Section 3933 () Section 4108 ()
Section 4109 ()
Section 4117 () Section 4305 () Section 4902 (relating to perjury)
Section 4909 ()
Section 4911 ()
Section 4952 ()
Section 4953 ()
Section 5101 ()
Section 5111 ()
Section 5121 (relating to escape)
Section 5902 ()
Section 5903 ()
Section 7313 ()
(3) Under the act of March 4, 1971 (P.L. 6, No. 2), [FN1] known as the Tax Reform Code of 1971, where such offense is dangerous to life, limb or property and punishable by imprisonment for more than one year:
Section 1272 ()
Section 1273 ()
Section 1274 (relating to counterfeiting)
(4) Any offense set forth under section 13(a) of the act of April 14, 1972 (P.L. 233, No. 64), [FN2] known as The Controlled Substance, Drug, Device and Cosmetic Act, not including the offense described in clause (31) of section 13(a).
(5) Any offense set forth under the act of November 15, 1972 (P.L. 1227, No. 272). [FN3]
(6) Any conspiracy to commit any of the offenses set forth in this section.
(7) Under the act of, 1998 (P.L. 874, No. 110), known as the Motor Vehicle Chop Shop and Illegally Obtained and Altered Property Act.
After the State Police rejected their applications, Sheriffs contacted the Commissioner who refused to overturn the decision. Sheriffs then filed a Petition for Review in the Nature of a Complaint in Equity Seeking Preliminary and Permanent Injunctive Relief in the Commonwealth Court, seeking to compel the State Police to admit them into the Course. They also requested a permanent injunction that would preclude the Commissioner from rejecting applicants on the basis of their status as Deputy Sheriffs. The parties then filed Cross-Motions for Summary Relief.
Prior to the hearing on the injunctive relief, the parties reached an interim agreement that the Commonwealth Court approved permitting the deputy Sheriffs to attend the Course. This agreement also provided that the Commissioner would not certify the deputies under the Wiretapping Act unless the Commonwealth Court determined that they were "investigative or law enforcement officers" pursuant to that Act.
On February 20, 2004, the Commonwealth Court held that Sheriffs were not "investigative...
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