Kopko v. Miller
| Decision Date | 20 February 2004 |
| Citation | 842 A.2d 1028 |
| 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, Michael Van Kuren, Deputy Sheriff of Bradford County, Chris Burgert, Deputy 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, Petitioners v. Jeffrey B. MILLER, in his official capacity as Commissioner of the Pennsylvania State Police of the Commonwealth of Pennsylvania, Respondent. |
| Court | Pennsylvania Commonwealth Court |
Vincent J. Grogan, Pittsburgh and Thomas W. King, III, Butler, for petitioners.
Barbara L. Christie, Harrisburg, and Leslie Ann Miller, Philadelphia, for respondent.
BEFORE: COLINS, President Judge, and McGINLEY, Judge, SMITH-RIBNE R, Judge, PELLEGRINI, Judge, FRIEDMAN, Judge, COHN, Judge, and SIMPSON, Judge.
OPINION BY Judge SIMPSON.
Before the Court in our original jurisdiction are cross-motions for summary relief filed by sheriffs, deputy sheriffs and district attorneys of Warren, Mercer, Bradford and Cumberland counties (collectively Sheriffs), and Jeffrey B. Miller, Commissioner (Commissioner) of the Pennsylvania State Police (PSP). We are asked whether sheriffs are "investigative or law enforcement officers" under the Wiretapping and Electronic Surveillance Control Act1 (Wiretap Act) so they may receive training and certification from the PSP to conduct wiretap investigations.
For several reasons more fully discussed below, we conclude sheriffs are not authorized officers under the Act. First, although sheriffs possessed broad common law power, the authority to conduct wiretap investigations does not emanate from common law; rather, the authority to use wiretaps is statutory and does not extend to sheriffs. Second, our courts only endorse limited law enforcement functions for sheriffs, such as effectuating warrantless arrests for offenses committed in their presence and filing citations for summary offenses. Finally, modern sheriffs are primarily charged with court-related functions rather than peace keeping duties.
This case began when five deputy sheriffs applied to the PSP for admission to the "Legal and Technical Aspects of Wiretapping and Electronic Surveillance" four-day training course (Course).2 The applications were rejected because of uncertainty over the deputy sheriffs' authority under the Wiretap Act. Seeking reversal, Sheriffs contacted the Commissioner. The Commissioner declined to revisit the issue.
Sheriffs filed a petition for review in the nature of a complaint in equity seeking an injunction to compel the deputy sheriffs' admittance into the Course. Sheriffs also sought a permanent injunction precluding the Commissioner from rejecting applicants on the basis of their status as deputy sheriffs.3 Thereafter, the parties filed cross-motions for summary relief.4 Under certain circumstances, the Wiretap Act allows judicial authorization of the interception of wire, electronic or oral communications. 18 Pa.C.S. § 5708. Because the statute authorizes electronic surveillance, which infringes upon the right to privacy, it must be strictly construed. Boettger v. Miklich, 534 Pa. 581, 633 A.2d 1146 (1993); Dance v. Pennsylvania State Police, 726 A.2d 4 (Pa.Cmwlth.1999); Commonwealth v. Doty, 345 Pa.Super. 374, 498 A.2d 870 (1985).
18 Pa.C.S. § 5708 (emphasis added).
The Act defines an "investigative or law enforcement officer" as:
[a]ny 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....
18 Pa.C.S. § 5702 (emphasis added). Thus, the definition of "investigative or law enforcement officer" includes only those officers who are (i) empowered by law (ii) to conduct investigations of or to make arrests for (iii) offenses enumerated under the Wiretap Act. Id.
Wiretap investigations are restricted to certain serious predicate offenses. The "listed crimes" include violations of the Crimes Code;5 the Tax Reform Code of 1971;6 the Controlled Substance, Drug, Device and Cosmetic Act;7 and Motor Vehicle Chop Shop and Illegally Obtained and Altered Property Act.8
There is no clear precedent that authorizes sheriffs to investigate or arrest for any of the serious predicate offenses listed in the Wiretap Act. Nevertheless, Sheriffs contend they are "investigative or law enforcement officers" within the meaning of the Act. Relying on a trilogy of Supreme Court cases, Sheriffs assert we should search for statutory language abrogating their broad common law power. Because the Wiretap Act contains no abrogating language, Sheriffs argue, they may enforce it based on their broad power at common law.
The Commissioner counters there is no authority, statutory or otherwise, to support Sheriffs' claim they are "investigative or law enforcement officers" as defined by the Wiretap Act. The Commissioner asserts Sheriffs lack authority to investigate or make arrests for the Act's predicate offenses.
Through a trilogy of cases, the Pennsylvania Supreme Court sanctioned a sheriff's power to enforce the Vehicle Code9 and file citations for summary offenses. Commonwealth v. Lockridge, 570 Pa. 510, 810 A.2d 1191 (2002); Dep't of Transp., Bureau of Driver Licensing v. Kline, 559 Pa. 646, 741 A.2d 1281 (1999); and Commonwealth v. Leet, 537 Pa. 89, 641 A.2d 299 (1994). Our careful review of this authority reveals the narrow approval granted to sheriffs to enforce the law.
In Leet, the Court considered "whether a deputy sheriff has authority in Pennsylvania to make a warrantless arrest for motor vehicle violations committed in his presence." Leet, 537 Pa. at 91, 641 A.2d at 300. Concluding the power to enforce the Vehicle Code was rooted in common law, and was not abrogated by statute or otherwise, the Court held the deputy sheriff had authority. After an extensive discussion of the broad law enforcement power of sheriffs at common law, the Court stated:
Though it may be unnecessary to cite additional authority, Blackstone confirms the common law power of the sheriff to make arrests without warrant for felonies and for breaches of the peace committed in his presence. Indeed, such powers are so widely known and so universally recognized that it is hardly necessary to cite authority for the proposition. To make the point, how few children would question that the infamous Sheriff of Nottingham had at least the authority to arrest Robin Hood.
Id. at 95, 641 A.2d at 303 (emphasis added) (citation omitted). Significantly, the Court narrowly tailored its holding to the facts presented, stating:
Unless the sheriff's common law power to make warrantless arrests for breaches of the peace committed in his presence has been abrogated, it is clear that a sheriff (and his deputies) may make arrests for motor vehicle violations which amount to breaches of the peace committed in their presence.
Id. at 93, 641 A.2d at 301 (emphasis added). The Court also expected sheriffs enforcing the Vehicle Code to undergo the same training required of police officers.
In light of Leet's training requirement, the Court in Kline was asked whether a deputy sheriff, who completed the deputy sheriff's basic training course, the driving while under the influence modules given to municipal police officers under Act 120, and training in field sobriety testing, qualified as a "police officer" for purposes of enforcing the Vehicle Code. The Court held, because the deputy completed the type of training contemplated by Leet, he was authorized to enforce the Vehicle Code and request a blood alcohol test. The Court concluded training other than Act 120 certification could suffice so as to permit Vehicle Code enforcement under Leet.
More recently, in Lockridge, our Supreme Court considered whether a deputy sheriff could file a citation against a motorist for driving with a suspended license when the deputy did not witness the offense. The Court concluded Leet was inapplicable as the issue was governed by the Pennsylvania Rules of Criminal Procedure. Because the Rules of Criminal Procedure authorized a sheriff to file a citation for a summary offense based on information received from a witness, the Court approved the deputy sheriff's action.10
Taken together, Leet, Kline and Lockridge only approve two narrow law enforcement functions. Thus, although the Court in Leet recognized a sheriff's broad authority at common law, it only sanctioned his authority to effectuate a warrantless arrest for a Vehicle Code violation that amounted to a breach of the peace committed in the deputy's presence. Neither Kline nor Lockridge expanded a sheriff's authority to effectuate warrantless arrests for offenses committed in their presence. Indeed, the only additional law enforcement function approved in Kline was an activity expressly sanctioned by the Rules of Criminal Procedure. The Court did not approve a sheriff's power to...
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