Lead Opinion
For the fifth time in the past fifteen years, this Court is called upon to clarify the breadth of county sheriffs’
I.
Because this Opinion effectively adds a new link to a well-defined chain of cases considering sheriffs’ law enforcement authority, and because the courts below and the parties now before us argue substantially from our earlier decisions, it is both beneficial and necessary to review these cases before recounting this case’s procedural history.
In Leet we considered “whether a deputy sheriff has authority ... to make a warrantless arrest for motor vehicle violations committed in his presence.”
On the Commonwealth’s appeal to this Court, we rejected the lower courts’ determinations that the Vehicle Code’s pervasive references to “police officers” necessarily precluded deputy sheriffs from enforcing the code, turning instead to the common law to determine sheriffs’ authority
In Commonwealth v. Lockridge,
We granted allowance of appeal to addrеss the deputy sheriffs authority to file a citation against defendant for a violation that was not committed in the deputy’s presence. We began by distinguishing Leet, which established only the “general proposition” that the deputy sheriff “was authorized to enforce the law,” from the question presented, “whether [the sheriff] was authorized to enforce the Vehicle Code by filing the Citation” at issue. Lockridge,
Proceeding from this principle, we noted that Rule 410 granted authority to file a citatiоn to a “law enforcement officer,” defined in Pa.R.Crim.P. 103 as “any person who is by law given the power to enforce the law when acting within the scope of that person’s employment.” Vie held that sheriffs “enforce the law,” Lockridge,
Most recently, in Kopko v. Miller,
Thus, as we will develop more fully below, in the decisions preceding Kopko II, we resisted calls to curtail sheriffs’ law enforcement power by identifying a combination of common-law and rules-based spheres in which sheriffs are authorized to enforce the law. In Kopko II, howevеr, faced with the prospect of sheriffs who sought training in the intrusive investigatory techniques authorized by the Wiretapping Act, we held that sheriffs’ authority, in the absence of legislative action to the contrary, was substantially narrower than that of municipal police officers.
II.
With this legal background in mind, we turn to the instant case. On July 10, 2008, Bradford County Sheriffs Deputies Christopher Burgert and David Hart visited a residence in Troy, Pennsylvania, to locate and question one April Harris, whose name had come up in connection with a prior methamphetamine-centered investigation in Bradford County. The deputies did not find Harris at her mobile home, but as they moved deeper into the property they detected what they believed to be an odor of ether, a chemical deputies knew to be used in the manufacture of methamphetamine, emanating from a nearby barn. The deputies observed a man nearby on the property. They approached the man, whom Deputy Hart recognized as Appellant Cory Dobbins, and identified themselves as sheriffs deputies. At the deputies’ approach Appellant fled into the woods. Deputies gave chase in vain.
Returning to the barn, deputies observed items consistent with methamphetamine manufacture, including tanks that could be used to contain anhydrous ammonia,
Based on their observations and the information provided by Officer McKee, deputies sought and obtained a search warrant from a district magistrate. They then returned to the property with one or morе additional deputies and executed the warrant. Inside the barn, deputies recovered methamphetamine and substantial evidence of methamphetamine manufacture. They also encountered one Robert Jordan, who confirmed that methamphetamine had been manufactured in the barn and implicated Appellant in the criminal enterprise.
The next day, on July 11, 2003, Deputy Hart filed with the same district magistrate a criminal complaint against Appellant based solely on evidence recovered during the prior day’s search. The complaint asserted various violations of the Controlled Substance, Drug, Device and Cosmetic Act (hereinafter Controlled Substance Act or Act),
Prior to the commencement of trial, in a Supplemental Omnibus Motion, Appellant sought dismissal of the charges based upon his contention that sheriffs deputies lacked the authority independently to investigate and prosecute drug offenses. In support of this claim, Appellant cited the Commonwealth Court’s then-newly minted decision in Kopko I,
At the conclusion of the trial that followed, a jury convicted Petitioner for manufacturing methamphetamine, possession with intent to deliver methamphetamine, and attempt and conspiracy to manufacture methamphetamine. On July 28, 2004, the court sentenced Appellant to an aggregate term of no fewer than forty-seven months and no more than twenty-three years of incarceration in state prison, and imposed a fine of $300.00.
Although the trial court’s two rulings that sheriffs deputies acted within the scope of their authority in investigating and filing a criminal complaint against Appellant differed in their articulation, the substantive thrust of the court’s rationale for denying Appellant’s challenges lay in its determination that this case more closely resembled Lockridge than it did Leet or Kopko I. Distinguishing the instant case from the latter two cases, the court determined that the investigation conducted in this case “had prior judicial authorization” — i.e., the putative arrest warrant for April Harris, or, alternatively, the simple authority to enter the property to question her
On direct appeal to the Superior Court, Appellant challenged the trial court’s rulings that sheriffs deputies had such authority. A divided panel of the Superior Court, then-President Judge Del Sole dissenting, ruled that a sheriff, “when properly trained under the Municipal Police Education and Training Law (Act 120), [is a] law enforcement officer [ ] and as such [has] a broad common law power to enforce the law, including the ability to arrest for felony drug violations.” Dobbins,
Applying this Leei-derived approach to the instant case, the court turned to the Controlled Substance Act in an effort to discern whether it abrogates sheriffs’ commonlaw authority. Noting that the Act does not define “law enforcement officer” or “law enforcement agency,”
From there, the court, citing Lockridge, relied on the definition of “law enforcement officer” provided by Pa.R.Crim.P. 103, which defines “law enforcement officer” as “any person who is by law given the power to enforce the law when acting within the scope of that persons employment.” The court noted that the Pennsylvania Rules of Criminal Procedure govern law enforcement practice for the seeking and execution of search warrants, see Pa.R.Crim.P. 200-211, and ruled that this rendered the case apposite to Lockridge, inasmuch as, in that case, we found the sheriffs authority at issue to reside in those rules. Thus, the court held that sheriffs deputies in this case acted within the scope of their authority. Accordingly, the court affirmed, and this appeal followed.
III.
Turning to the instant question concerning sheriffs’ authority to investigate and arrest for violations of the Controlled Substances Act,
In Kopko II, this Court considered the Commonwealth’s contention that sheriffs should be permitted to attend a four-day course providing training and certification in the utilization of wiretapping and electronic surveillance pursuant to the Wiretapping Act. The Pennsylvania State Police, tasked by that act with providing the
Much as the Commonwealth argues and the Superior Court ruled in this case, the Commonwealth in Kopko II contended that Leet furnished the requisite authority by affirming sheriffs’ power to arrest for felonies unless restrained from doing so by statute. We unequivocally rejected this reading, however, emphasizing that, “although the Court in Leet and Kline recognized the common law authority of deputy sheriffs to make arrests, it did not discover any legislative authority empowering them to act as police officers.” Kopko II,
Thus, we examined whether the Wiretapping Act or another statute authorized sheriffs “to conduct investigations of or to make arrests for the [act’s] predicate offenses.” Kopko II,
Turning to the Wiretapping Act’s language, we found in 18 Pa.C.S. § 5708 that communications could be intercepted under the act “by the investigative or law enforcement officers or agency having responsibility for an investigation involving suspected criminal activities when such interception may provide evidence of the commission” of the predicate offenses. Kopko II,
In an effort to reconcile its position with this decision— which the parties did not have until they briefed this issue before this Court, see supra n. 5 — the Commonwealth reads our holding in Kopko II more narrowly than its express terms allow, and would have us restrict that ruling such that, even if sheriffs are not investigative or law enforcement officers for purposes of the Wiretapping Act, they are law enforcement officers for essentially any other purpose. Thus, the Commonwealth returns to the proposition that Leet extends investigative authority to all sheriffs who are trained comparably to municipal police officers that is as broad as the authority granted to those police officers, unless the legislaturе expressly limits that authority.
The Commonwealth’s argument, however, neglects to account for two critical aspects of our decision in Kopko II: first, that we specifically found that sheriffs’ lacked authority to investigate violations of the Controlled Substance Act, a predicate offense under the Wiretapping Act; and second, that our holding in Kopko II specifically underscored our duty to strictly construe any statute that grants authority to invade individuals’ constitutional right to privacy. To read Kopko II as narrowly as the Commonwealth urges would require us to focus on the language of our conclusion in that case while disregarding practically everything we wrote in reaching it. Specifically, we observed that no legal authority whаtsoever supported treating sheriffs as comparable to police officers. We further emphasized that nothing “authorizes sheriffs to investigate or arrest” for any of the Wiretapping Act’s predicate offenses, among which are counted offenses under the Controlled Substance Act, precisely the family of violations that includes those charged in the instant case. Faced with sheriffs’ assertion of much more investigative authority than this Court previously had faced, we clarified that Leet acknowledged nothing more than sheriffs’ circumscribed authority to arrest for breaches of the peace and felonies committed in their presence, power “no different from that of a private citizen.”
Nor does Lockridge govern to the contrary. In that case, we held only that the Pennsylvania Rules of Criminal Procedure reposed authority in sheriffs to seek citations for summary offenses. Just as Leet vindiсated little more than an arrest authority held by any citizen for felonies and
The facts of this case clearly invoke concerns similar to those this Court expressed in Kopko II, insofar as sheriffs deputies conducted an unwarranted investigation of private property based on suspicion rather than the commission of any felony or breach of the peace in their presence. Relying exclusively upon the observations they made while doing so, they sought, secured, and executed a search warrant, a process that implicates precisely the same privacy concerns that the Wiretapping Act does. Thus, the arrest warrant was predicated on evidence secured only by the execution of a search warrant that never should have issued, inasmuch as sheriff’s deputies had no legal authority to obtain that warrant in the first instance. We hold that, absent specific statutory authorization, sheriffs lack authority to conduct independent investigations under the Controlled Substances Act, including the seeking of search warrants where no breach of the peace or felony has occurred in their presence.
Finally, we arrive at the question of remedy. As noted, supra n. 20, Appellant has consistently argued that the proper remedy in this circumstance is dismissal of the charges. Appellee and the trial court, however, have observed that the proper remedy where evidence has been discovered by an illegal search and/or incident to an illegal arrest is suppression, not dismissal. We agree. See Commonwealth v. Gibson,
Notes
. In this Opinion and in the prior decisions discussed herein, county sheriffs are referred to variously as sheriffs, deputy sheriffs, sheriff's deputies, and deputies. We use these terms interchangeably to refer to officers with the relevant county sheriffs' offices, and the choice of one title over another should not be construed to reflect any material distinction.
. We qualified our ruling, however, by holding that the training requirements the legislаture imposed on municipal police officers applied equally to sheriffs.
Policemen, to whom the legislature has given primary responsibility for enforcement of the motor vehicle code, are required by statute to undergo formal training prior to enforcing the law. * * * * Thus a sheriff or deputy sheriff would be required to complete the same type of training that is required of police officers throughout the Commonwealth.
Leet,
That training requirement came to the fore in Commonwealth, Dep't of Transp. v. Kline,
. Pa.R.Crim.P. 410 provides, in relevant part, that “[wjhen it is not feasible to issue the citation to the defendant ..., a law enforcement officer shall institute a criminal proceeding in a summary case by filing a citation with the proper issuing authority.”
. See Pennsylvania Const. Art. V, § 10(c).
. The lower courts and the parties did not have the benefit of our decision in Kopko II until shortly before they filed their briefs with this Court, hence in the lower courts they argued from the Commonwealth Court decision that we affirmed in Kopko II. Because the lower courts had occasion to discuss the Commonwealth Court's decision in thаt case, we find it useful in analyzing this case to refer both to that court's Kopko decision and our decision affirming it. We refer hereinafter to the Commonwealth Court's decision,
. See Act of October 4, 1978, Pub.L. 861, No. 124, § 2, as amended, 18 Pa.C.S. §§ 5701, etseq.
. Anhydrous ammonia is a methamphetamine precursor. Sheriff's deputies acknowledged that the same container could be used to contain propane.
. Act of April 14, 1972, Pub.L. 233, No. 64, as amended, 35 P.S. §§ 780-101, et seq.
. Specifically, for manufacturing methamphetamine, the trial court sentenced Appellant to pay a $300.00 fine and serve two to fifteen years’ imprisonment; for conspiracy to manufacture methamphetamine, the court imposed a sentence of seventeen months' to seven years' imprisonment; and for possession with intent to deliver of methamphetamine, the court imposed a sentence of six months' to one year’s incarceration, sentences to run consecutively. On the fourth count of conviction, attempt to manufacture methamphetamine, the court imposеd no sentence, ruling that it merged for sentencing purposes with the manufacturing charge. See Sentencing Order, 7/28/04.
. The trial court initially indicated that deputies entered the property "pursuant to a warrant they had for the arrest of April Harris.” PreTrial Mem. & Ord. at 6. Later, the court acknowledged that this statement was erroneous because deputies had no arrest warrant for Harris, and merely sought to question her, but found the distinction immaterial. Post-Sent. Mem. & Ord. at 1-2 ("[I]t actually does not matter whether the Deputies had a warrant to arrest April Harris.... They, at a minimum, wanted to speak to her and they went onto the premises to do so. Anyone could have done the same."). Because, in either event, we hold that the sheriff’s deputies lacked authority to seek a search warrant, the distinction does not bear on our decision.
. Pa.R.Crim.P. 103 defines “law enforcement officer” as “any person who is by law given the power to enforce the law when acting within the scope of that person's employment."
. Notably, although Deputy Burgert was affiant for the search warrant, Deputy Hart was affiant on the criminal complaint. The record does not indicate whether Deputy Hart had completed Act 120 training or its equivalent at the relevant time, a deficiency that might require a remand were we not to find that the investigation exceeded deputies’ authority on another basis. See Leet,
. In so ruling, the court notably omitted our language in Leet restricting sheriffs’ arrest authority to breaches of the peace and felonies committed in the sheriff's presence. Compare Leet,
. The court also noted that, following our decision in Leet, the General Assembly amended the Crimes Code to define “police officer” to include "the sheriff of a county of the second class and deputy sheriffs of a county of the second class who have successfully completed the requirements [of Act 120].” 18 Pa.C.S. § 103. Observing that, presently, Allegheny County is the only "second class” county in Pennsylvania, Dobbins,
Then-President Judge Del Sole disputed this aspect of the court's holding, contending that the sorts of investigatory actions here at issue "are exclusivеly the province of police officers” as defined by the General Assembly in its 1995, post-Leei amendment to 18 Pa.C.S. § 103. Dobbins,
. The plain language of the provision in question merely emphasizes that the Act does not limit any existing authority that lies with a given "law enforcement agency.” It does not repose, or allude to, any affirmative authority in sheriffs. Thus, relying on this alone in support of the lower court's ruling is fundamentally circular, as the effective scope of sheriffs' authority in this context is precisely the question we seek to resolve.
. Then-President Judge Del Sole found the majority's reasoning flawed in its account of the common law. Observing that this Court’s decision in Leet vindicated only a sheriff’s traffic stop of a person who breached the peace in his presence, President Judge Del Sole asserted that "[ijn this case, the sheriffs were conducting an investigation, thus looking for a breach of the peace, not witnessing one.” Dobbins,
. Because this presents a question of law, our standard of review is de novo and the scope of our review plenary. Kopko II,
. See 18 Pa.C.S. § 5724.
. The suggestion that sheriffs, by default, have authority identical to that of municipal police officers is belied by the recent legislative action modifying 18 Pa.C.S. § 103 to add only sheriffs of second-class counties to the definition of police officer. This qualified modification, in the wake of Leet, bespeaks at a minimum a legislative intent to distinguish for certain law enforcement purposes not only certain sheriffs from municipal police officers, but also sheriffs of certain counties from sheriffs of others. See supra n. 14.
. The Commonwealth argues in the alternative that Appellant has waived any right to relief in this case because he consistently has sought the remedy of dismissal rather than mere suppression of the evidence that is the fruit of the allegedly unauthorized investigation, a point the trial court raised in rejecting Appellant's post-sentence motion. The Commonwealth is correct that suppression is the appropriate remedy in a case such as this. See Commonwealth v. Gibson,
Although our law is unequivocal regarding the nearly universally preclusive effect of a party's failure to preserve issues at each stage of litigation, see Pa.R.A.P. 302(a), the relevant rules are designed to ensure that еach court that addresses a case has the opportunity to consider the possibility of its own error or that of a lower court. The Commonwealth does not argue that Appellant has, in any way, failed to preserve his challenge to sheriffs' authority at each stage of this litigation, and the record plainly reveals that Appellant has consistently raised these issues in the appropriate ways at the appropriate times. The trial court was entirely aware of the proper remedy in this case, as it expressly noted in its ruling denying Appellant's post-trial motions, and it couched its pre-trial ruling in substantive rather than formal grounds. Under these circumstances, we find no basis to deem Appellant’s argument waived.
. Nothing in this Opinion, however, should be construed to limit sheriffs’ well-documented and salutary role in support of those law enforcement agencies so authorized, nor should our ruling be read to suggest that the General Assembly lаcks authority to grant broader investigatory power to sheriffs in this or other contexts. Those questions simply are not before us.
Dissenting Opinion
dissenting.
Finding no authority to investigate drug cases, the majority deems the acts of these deputies “illegal” ab initio and orders suppression. The majority, in my estimation, mistakenly focuses on the scope of employment of a sheriffs deputy, rather than evaluating their actual conduct under the Rules of Criminal Procedure and the Constitution. I find the issue of statutory investigative authority to be a red herring,
If the actions of the sheriffs deputies, to be “legal,” required specific authority to enforce drug laws, the majority may be correct. Conversely, if their actions were not made “illegal” by a lack of specific drug law authority, the majority is incorrect. In fact, appellant does not argue specific wrongdoing beyond the alleged lack of authority to get involved with drug offenses. "Whatever their relative authority, a seriatim look at the events leads me to conclude there simply was no illegality by these officers.
The initial information that led to the search warrant was not the result of an illegal presence at the scene. The officers came to the property of April Harris, not appellant Cory Dobbins, a place where he claims no expectation of privacy on the record before us. Their reason for their presence is irrelevant — constitutional analysis of their actions does not concern itself with their motive, if the actions were not themselves invasive of appellant’s privacy or otherwise uncоnstitutional. As with any case, what is preliminarily relevant is whether the deputies did anything to invade the privacy of this appellant. The answer is, they did not.
It is nonsensical to suggest their presence at Ms. Harris’s property somehow gave appellant the ability to complain of what they did or found there, based solely on why they were there. The officers committed no entry less “legal” than that of any other citizen coming to her door, regardless of their purpose. Whether they are statutorily authorized to investigate drug matters is irrelevant — as concerns appellant, it does not matter whether they came for a quiet stroll, to distribute religious tracts, or to investigate the Lindbergh kidnapping. They did nothing in seeking Ms. Harris that offends appellant. As such, that which they saw and smelled there, in the air and light accessible to all, and which eventually comprised probable cause for the search warrant, was not learned illegally. To the point apрellant chose to take flight, they did nothing improper, unconstitutional, or illegal.
The officers next sought a search warrant. The majority states, “[S]heriffs deputies had no legal authority to obtain that warrant in the first instance.” Majority Op., at 89,
There is no prohibition in our Rules, or elsewhere for that matter, precluding a deputy sheriff or any other citizen from apрearing before an issuing authority as an affiant. Rule 204 specifically requires execution of the search warrant be accomplished by law enforcement officers — the ability to apply for a warrant, to be an affiant, is not so restricted. Pa. R.Crim.P. 204. Clearly a sheriffs deputy, capable of taking an oath, may be an affiant; to say such an officer “had no legal authority to
Finding probable cause in an affidavit by a properly sworn affiant, the magistrate’s issuance of the search warrant was not illegal. Its execution by the deputies is authorized by Rule 204. Pa.R.Crim.P. 204. Thus, the fruits of the search were not illegally obtained and were properly held by all courts below to be admissible. There simply is no illegality to this point, for any citizen (authorized to enforce the drug laws or not) may act exactly as did the officers here. That they were in fact law enforcement officers only magnifies the incongruity of calling their conduct “illegal.”
The criminal complaint followed the search. Again, the Rules allow deputies and private citizens alike to file a complaint as an “affiant.” Rule 506 makes complaints not filed by law enforcement officers (as defined in Rule 103) subject to approval by the District Attorney, reinforcing the fact that an affiant need not be a law enforcement officer.
Moreover, as no evidence apparently was gained by execution of the arrest warrant, suppression is no remedy even if there had been an illegality. As is no allegation of actual prejudice resulting from the employment of the arresting officers, dismissal is also inappropriate. In sum, the officers acted legally throughout, regardless of specific drug enforcement responsibility.
The majority relies heavily on Kopko v. Miller,
Kopko II stated, “[T]he sole question before us involves the interpretation of statutory language ... in the Wiretapping Act....” Kopko II, at 770. Kopko II only concluded sheriffs were not “investigative or law enforcement officers” as uniquely defined in that act and thus could not obtain wiretap training. Id. Section 5708 of that act looks to whether an officer has the responsibility to investigate a predicate offense — it does not depend on whether officers had the ability to do so. 18 Pa.C.S. § 5708. This distinction is significant, for while deputy sheriffs may not be responsible for investigating drug offenses, (which excludes them from the list of law enforcement officers eligible for wiretap training), Kopko II does not amount to a sweeping preclusion of their ability to participate in all law enforcement procedures just because they involve crimes enumerated in § 5708. One has the legal right to participate in many things that one is not
These officers made no warrantless search; they made no illegal search. They brought no illegal charges, and made no warrantless or illegal arrest. They acted lawfully throughout, followed our Rules, and obtained the appropriate paperwork after review by judicial officers. Whether they had specific statutory authority to enforce drug laws or not,
. In Commonwealth v. Leet,
. The majority holds "sheriffs lack authority to conduct independent investigations under the Coni rolled Substances Act, including the seeking of search warrants where no breach of the peace or felony has occurred in their presence.” Majority Op., at 89,
Regardless, as these officers saw considerable evidence of a felony drug manufacturing operation, they might have taken action on this recognized basis alone. No court below considered this, since the actions of the deputies were deemed appropriate. As the majority now finds the behavior "illegal” for want of statutory authority, the proper remedy should at most be a remand for consideration of their authority to act on probable cause to believe there was a felony, a point understandably not addressed below, and on which we have received no advocacy or authority.