Commonwealth v. Monson

860 S.W.2d 272, 1993 Ky. LEXIS 100, 1993 WL 237868
CourtKentucky Supreme Court
DecidedJuly 1, 1993
DocketNo. 92-SC-616-DG
StatusPublished
Cited by3 cases

This text of 860 S.W.2d 272 (Commonwealth v. Monson) is published on Counsel Stack Legal Research, covering Kentucky Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Monson, 860 S.W.2d 272, 1993 Ky. LEXIS 100, 1993 WL 237868 (Ky. 1993).

Opinion

SPAIN, Justice.

We granted discretionary review in this case to address the issue of whether KRS 95.740(1) confers county-wide arrest powers upon police officers of fourth-class cities. We now answer the question in the affirmative, reversing a panel of the Court of Appeals, which held that said statute was an “... authoritative rather than a geographic grant of power to arrest.”

The case under review arose out of the arrest of the appellee, Jerome J. Monson, during the early morning hours of November 25, 1989, in the fourth-class city of Park Hills, Kenton County, Kentucky. Monson was observed erratically operating a motor vehicle in that city by Rodney Newsom, a police officer of the nearby city of Fort Wright, another fourth-class city located in Kenton County. Officer Newsom radioed Officer Benny Johnson of the Park Hills Police Department, whom he was waiting to meet with anyway, and Officer Johnson arrived on the scene shortly after Officer New-som caught up with Monson just as he entered the parking lot of his apartment building. Officer Jim Decker, also of the Fort Wright department, was called in to make the arrest and to transport Monson to jail, since he was working the Traffic Alcohol Program that night. Appellee Monson failed the field sobriety tests and, after being arrested and taken to jail, blew a 0.16% on the breathalyzer test.

Following his conviction by a Kenton County District Court jury of DUI and reckless driving, Monson appealed to the Kenton Circuit Court. That court reversed the reckless driving conviction for the reason that the arresting officer never saw the appellant operate his vehicle. The court nevertheless affirmed the DUI conviction, finding the arrest in Park Hills by Fort Wright police [273]*273officer Decker to have been legal and the resulting breathalyzer test results admissible. Upon further appeal, the Court of Appeals reversed the conviction for DUI on the grounds that the arrest was illegal and that its fruits; i.e., the breathalyzer results, were inadmissible. The cause was remanded for retrial without such test results.

The statute in question, KRS 95.740(1), states as follows:

The chief of police and every member of the police force in cities of the fourth and fifth classes may, whether directed to them or not, execute warrants of arrest, processes, subpoenas and attachments for witnesses. They may arrest as prescribed by law for offenses against ordinances or municipal regulations of the city, and shall have the same power of arrest for offenses against the state as a sheriff (Emphasis added.)

It is undisputed that sheriffs have countywide arrest powers. Kentucky Constitution, § 101 provides: “Constables shall possess the same qualifications as sheriffs, and their jurisdiction shall be coextensive with the counties in which they reside.” KRS 70.070, which is entitled “Execution and return of process — Territorial jurisdiction,” likewise confers county-wide authority on sheriffs. Because sheriffs have county-wide arrest powers, so do police officers of fourth-class cities by reason of KRS 95.740(1).

In deciding whether the reference in KRS 95.740(1) addresses the jurisdictional power of a sheriff to arrest for particular offenses or the geographic or territorial limits of his arrest power, it is helpful to trace the history of the statute. It was first enacted as § 13 of Chapter 241 of The Acts of 1893, entitled “An Act for the Government of cities of the fourth class,” and was later codified as Kentucky Statutes § 3495, to wit:

§ 13 The chief of police and every policeman shall have power to execute warrants of arrest, processes, subpoenas and attachments for witnesses, whether the same be directed to them or not. They, and each of them, shall have the same power to arrest as is prescribed by the general law for any offense against the ordinances or municipal regulations of the city, and the same power of arrest for any offense against the Commonwealth of Kentucky that the sheriff has. Fees for any services under this section shall be the same allowed by law to the sheriffs and other officers for such services, but shall be paid into the city treasury: Provided, Arrests may be made for drunkenness or disorderly conduct at any time without warrant. (Emphasis added.)

As readily appears, this emphasized language is virtually verbatim to the language of the present KRS 95.740(1); viz., “... the same power of arrest for offenses against the state as a sheriff.” This being so, an interpretation of the 1893 language by this Court only fourteen years later, in 1907, controls the present case. In Earle v. Latonia Agricultural Association, 127 Ky. 578, 106 S.W. 312 (1907), this Court was concerned not only with the territorial power of arrest of police officers of fourth-class cities (Latonia), but also with the power of such cities to enact and enforce ordinances outside the city limits but within the county. Thus § 14 of Chapter 241 of the 1893 Acts was also under consideration. It provided, “[t]he police jurisdiction of the city shall extend to any point in the county within two miles of the boundary of the city.” (Emphasis added.) Codified as Kentucky Statutes § 3496, that section referred not to the arrest power of the city police, but rather to the city’s enforcement authority of municipal ordinances. Carroll’s Kentucky Statutes 1936.

The City of Latonia was attempting to enforce its ordinance beyond its geographic boundaries. The Court observed, “The ordinance in question deals exclusively with offenses committed outside of the corporate limits of Latonia-” 106 S.W. at 313. The Court held that the ordinance and the statute on which it was based (Subsection 27, Section 3490 of Kentucky Statutes 1903) violated § 143 of the Kentucky Constitution by creating “one boundary of a city for taxation and other general purposes, and another boundary for police purposes.” 106 S.W. at 314.

In so holding, however, the Court compared the territorial arrest powers of police officers with the authority of a city to enact [274]*274legislation with extraterritorial application, recognizing the fundamental difference between the two kinds of authority. In 106 S.W. at 314, the Court stated:

By an inspection of the present Constitution it will be observed that the General Assembly is not prohibited from giving police officers of cities and towns authority to make arrest and police territory beyond the limits thereof; and it has given them such authority under section 3495 of the statutes, and this court has construed that section, or one like it, and declared it legal, in the cases of Heather v. Thompson, 78 S.W. 194, 25 Ky.Law Rep. 1554 [(1904) ], and Riley v. Grace, 33 S.W. 207, 17 Ky. Law Rep. 1008 [1007] [(1895)]. Under these authorities the police of cities and towns are not confined in their duties to the boundary of the cities and towns.

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Bluebook (online)
860 S.W.2d 272, 1993 Ky. LEXIS 100, 1993 WL 237868, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-monson-ky-1993.