Amelia McIntyre, Legal Counsel Kansas Department of Wildlife and Parks 900 S.W. Jackson, Suite 502 Topeka, Kansas 66612
Dear Ms. McIntyre:
As legal counsel for the Kansas department of wildlife and parks, you pose two related questions which pertain to the territorial limits of a department conservation officer's law enforcement authority. You first ask whether conservation officers employed by the department have statutory authority based upon K.S.A.
You indicate that your questions are prompted by several unreported Kansas district court decisions granting defense motions to dismiss driving under the influence charges because the arrests were made by department conservation officers outside department controlled lands.
L. 1985, ch. 252, § 1 also provided that upon request, properly trained wildlife conservation officers were authorized to assist any law enforcement officer in making an arrest. In addition the wildlife conservation officers were granted the power of arrest when the conservation officer had (1) an arrest warrant, (2) probable cause to believe a person was committing or had committed a felony, (3) probable cause to believe a person was committing or had committed a misdemeanor under the circumstances specified in K.S.A.
Beginning in 1977 the director of the state park and resources authority was mandated to appoint park managers and rangers "to maintain order within the state parks." L. 1977, ch. 270, § 1. These managers and rangers were authorized to "enforce all the laws of the state" as well as the park and resource authority rules and regulations. L. 1977, ch. 270, § 1. Read together these two statutes authorized park managers and rangers to enforce traffic violations and criminal laws within state parks.
In 1989 the Kansas department of fish and game was consolidated with the state park and resources authority to form the Kansas department of wildlife and parks. At that time the arrest authority of wildlife and parks conservation officers (formerly wildlife conservation officers and park and resources managers and rangers) was altered to reflect modification necessitated by the consolidation, i.e. to enforce all thewildlife and park laws of the state. L. 1989, ch. 118, § 10. The procedural statute, (L. 1976, ch. 145, § 156) was also amended, authorizing the wildlife conservation officers "to arrest, at any place in the state of Kansas, any person or persons found violating any of the wildlife and parks laws of this state, or the rules and regulations adopted thereunder." L. 1989, ch. 118, § 134.
Additional arrest authority of the wildlife and parks conservation officers for non-wildlife and parks laws mirrored that of the former wildlife conservation officers by identifying the same four circumstances in which a conservation officer could make an arrest, but again without specification of the territorial limits of their arrest authority. L. 1989, ch. 118, § 10. The specific power, formerly given park managers and rangers, to enforce all the laws of the state within state parks was not included within the consolidation statutes.
In 1993 the enforcement statute (L. 1989, ch. 118, § 10) was amended, authorizing conservation officers to enforce not only all the wildlife and parks laws and regulations but also "other laws of the state, including but not limited to chapter 8 of the Kansas Statutes Annotated." L. 1993, ch. 150, § 1, now K.S.A.
In addition, the 1993 amendment deleted the former four circumstances in which a conservation officer could make an arrest and replaced them with the following:
"Such officers shall also have the powers of arrest set forth in K.S.A.
22-2401 , and amendments thereto, and are empowered to make arrests, pursuant to K.S.A. 22-3307, and amendments thereto, as required by any policy adopted by the secretary." L. 1993, ch. 150, § 1, now K.S.A.32-808 (b)(1).
K.S.A.
In relation to the jurisdiction of law enforcement officers, the territorial limits and exceptions to those limits are statutorily specified. (See K.S.A.
Given the absence of a statute which specifies the territorial limits of a wildlife conservation officer's authority to arrest for violation of "other laws of the state," we must reach a conclusion based on general principles derived from what little applicable case law exists. We are thus led through the annals of Kansas jurisprudence to the case ofMorrell v. Ingle,
"[t]he powers of any officer are limited to the territory of which he is an officer. He who affirms the existence of powers beyond such limits must show a grant of such powers; it is not enough to show that there is no express denial of them." 23 Kan at 36.
This general principle expressed in Morrell was cited and followed inTorson v. Baehni,
The territorial extent of the authority of wildlife conservation officers to arrest persons found violating wildlife and parks laws is state-wide. In contrast, the territorial authority of wildlife conservation officers to arrest person found violating other laws of the state is not statutorily specified. Given such an absence, a wildlife conservation officer's arrest authority for other laws of the state must be understood to be limited to the territories of which he is an officer, i.e. the territories operated and controlled by the secretary of wildlife and parks. The territories which the secretary of wildlife and parks is authorized to "operate and control" are the "state parks, state lakes, recreational grounds, wildlife areas and sanctuaries, fish hatcheries, natural areas, historic sites and other lands, waters and facilities under the jurisdiction and control of the secretary. . . ." K.S.A.
The current version of the conservation officers enforcement statute, K.S.A.
"Existing law does not allow for the enforcement of traffic infractions on Wildlife and Parks managed properties. . . . Total enforcement of laws on department managed lands is necessary to provide public safety. . . . Arrests for crimes other than Chapter 32 violations on department managed lands must be turned over to other law enforcement organizations under current law. . . . The Department is charged with management of certain lands and waters for the public use and enjoyment. Public safety while using and enjoying those areas must be a primary concern of the Department." (Emphasis added.) Testimony presented to House judiciary subcommittee by Kansas department of wildlife and parks, February 23, 1993 and to Senate committee on energy and natural resources, March 19, 1993.
"The recodification process overlooked an important point of law which is needed by the Kansas Department of Wildlife and Parks. Traffic crimes had been reclassified as `infractions' prior to 1989. This meant traffic enforcement on state parks and wildlife areas could not longer be conducted since the Wildlife Conservation Officers only had authority to enforce violations of criminal law, not traffic infractions. This has caused a safety problem for the public who use these areas and placed an undo [sic] burden on other law enforcement agencies. Other law enforcement agencies such as county sheriff departments and the Kansas Highway Patrol have been responsible for the traffic enforcement on the parks and wildlife areas because Conservation Officers no longer had legal authority for this responsibility." (Emphasis added.) Testimony presented to House judiciary subcommittee by Kansas peace officers' association, February 23, 1993 and to Senate committee on energy and natural resources, March 19, 1993.
Additionally, minutes of the senate committee on energy and natural resources for March 24, 1993, which indicate that there were "questions concerning the enforcement of criminal law and it was noted this would be only on park land" support our conclusion.
"Traffic laws and infractions may be enforced on Department managed properties. Such enforcement shall be a duty of all department law enforcement personnel who are certified through the Kansas Law Enforcement Training Center.
Department Law Enforcement Personnel shall not enforce traffic laws or infractions on non-department lands, except: when there is a clear and present danger to life."
You next ask whether this policy limits the broader statutory authority otherwise vested in conservation officers. As seen from the above discussion and conclusion, in our opinion department conservation officers do not have any authority to enforce traffic infractions on non-department lands. As with other law enforcement officers, once outside the territorial limits of their jurisdiction, absent application of the fresh pursuit doctrine or a call for assistance from another officer, such law enforcement officer's authority to arrest is that of a private citizen. His actions will be considered lawful if the circumstances attending would authorize a private person to make the arrest. State v. Shienle,
"(1) a felony has been or is being committed and the person making the arrest has probably cause to believe that the arrested person is guilty thereof; or
"(2) any crime, other than a traffic infraction, has been or is being committed by the arrested person in the view of the person making the arrest." (Emphasis added.)
Thus in response to your question, in relation to traffic infractions the policy does not "limit the broader statutory authority otherwise vested in conservation officers," but rather impermissibly expands such officers authority beyond statutory limits. In relation to "traffic laws" which are not traffic infractions (such as driving under the influence), the policy is flawed because it is premised on the erroneous assumption that conservation officers have authority as law enforcement officers to arrest persons instead of the more limited arrest authority granted to private persons.
Very truly yours,
CARLA J. STOVALL Attorney General of Kansas
Camille Nohe Assistant Attorney General
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