Commonwealth v. Leet

NIX, Chief Justice,

dissenting.

I agree with the majority that Leet was in custody when Deputy Sheriff Gibbons stopped him, administered field sobriety tests, and detained him while checking the status of his driver’s license. I also agree that Gibbons, regardless of his authorization to stop Leet, was acting under color of law so that state action is implicated and suppression of evidence is appropriate if the stop is illegal. I cannot, however, accept the conclusion of the majority that the common law powers of the sheriff include the power to enforce the Motor Vehicle Code.

The office of the sheriff has its basis in the Pennsylvania Constitution. Pa. Const, art. 9 § 4 (“County officers shall consist of ... sheriffs ... and such others as may from time to time be provided by law.”). The Constitution neither explains nor provides any duties for the sheriff. The General Assembly, however, has recently enacted legislation that provides some guidance.

Under “[a]n Act clarifying the powers of constables, county detectives, sheriffs, deputy sheriffs, waterways patrolmen and game protectors,” the General Assembly limited the sheriffs powers and duties to those “authorized or imposed upon them by statute.” Act of June 29, 1976, P.L. 475, No. 121, § 1, (codified as amended at 16 P.S. § 1216) (emphasis added). Chapter 29 of the Judicial Code imposes the duty on the county sheriff or his deputy to “serve process and execute orders directed to him pursuant to law.” 42 Pa.C.S. § 2921. The General Assembly has not conferred upon the office of sheriff or his deputies the authorization to make warrantless arrests for violations of the law. In contrast, such authority has been granted to other law enforcement officials.

The Motor Vehicle Code empowers uniformed state police officers to arrest any person who violates the Motor Vehicle Code in the state police officer’s presence. It also permits all other police officers to arrest any non-resident who violates the Motor Vehicle Code in the police officer’s presence. 75 Pa.C.S. § 6304.¹

The initial motor vehicle violation in this case is improper passing which is governed by Chapter 33 and is designated by Chapter 65 of the Motor Vehicle Code as a summary offense. Therefore, the most likely place to find the sheriffs authorization to arrest the defendant is the Motor Vehicle Code. There is no such authority for any arrest under the specific chapter governing the rules of the road. Thus, it is governed by Chapter 63 which expressly authorizes only state police officers and other police officers to make arrests under the Motor Vehicle Code. I am therefore constrained to conclude that sheriffs and their deputies are not authorized to make arrests under the Motor Vehicle Code.

The majority concludes that “a sheriff (and his deputies) may make arrests for motor vehicle violations which amount to breaches of the peace committed in their presence.” Op. at 303. However, our criminal code does not recognize the crime of the breach of peace. Conduct does not constitute a crime unless it is a crime under Title 18 or another statute of this Commonwealth. 18 Pa.C.S. § 107(b). The closest offense to a breach of peace that can be found in the statute is disorderly conduct which is prohibited by section 5503 of the Crimes Code. 18 Pa.C.S. § 5503. The Commonwealth did not establish the elements of disorderly conduct at the suppression hearing. Therefore, at the time that Deputy Sheriff Gibbons first instructed Leet to pull over, Leet had committed no offense other than improper automobile passing. Nonetheless, the majority somehow elevates this summary traffic offense into a breach of the peace.

Accordingly, because the legislature has not expressly granted to sheriffs the power to make warrantless arrests for violations of the Motor Vehicle Code, I am constrained to conclude that such a decision is not within the province of this Court’s authority. In my view, the common law powers of the sheriff have been abrogated by statute and, on that basis, I respectfully dissent.

1 . Section 6304, entitled "Authority to arrest without warrant,” provides:

(a) Pennsylvania State Police.—A member of the Pennsylvania State Police who is in uniform may arrest without a warrant any person who violates any provision of this title in the presence of the police officer making the arrest.

(b) Other police officers.—Any police officer who is in uniform may arrest without a warrant any nonresident who violates any provision of this title in the presence of the police officer in making the arrest.

(c) Other powers preserved.—The powers of arrest conferred by this section are in addition to any other powers of arrest conferred by law. 75 Pa.C.S. § 6304(a)-(c).

The Motor Vehicle Code makes several references to sheriffs and police officers, thus denying the Commonwealth's argument that a sheriff is a police officer for the purposes of the Motor Vehicle Code. See 75 Pa.C.S. § 3102 ("No person shall willfully fail or refuse to comply with any lawful order or direction of any uniformed police officer, sheriff ... authorized to direct, control or regulate traffic.”) (emphasis added); 75 Pa.C.S. § 6309(d) ("The police officer’s, constable and sheriff s costs ... shall be recoverable in addition to costs of prosecution.”) (emphasis added). It cannot be legitimately argued that police officers and sheriffs are different entities in these sections of the Motor Vehicle Code but are identical for the purposes of effectuating arrests under section 6304.