Kopko v. Miller

842 A.2d 1028, 2004 Pa. Commw. LEXIS 131
CourtCommonwealth Court of Pennsylvania
DecidedFebruary 20, 2004
StatusPublished
Cited by8 cases

This text of 842 A.2d 1028 (Kopko v. Miller) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kopko v. Miller, 842 A.2d 1028, 2004 Pa. Commw. LEXIS 131 (Pa. Ct. App. 2004).

Opinion

*1030 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 Act 1 (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

*1031 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, 584 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).

In order to obtain wiretap authorization: [t]he Attorney General, or ... a deputy attorney general designated in writing by the Attorney General, or the district attorney or ... an assistant district attorney designated in writing by the district attorney of the county wherein the interception is to be made, may make written application to any Superior Court judge for an order authorizing the interception of a wire, electronic or oral communication by the investigative or law enforcement officers or agency having responsibility for an investigation involving suspected criminal activities....

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 emmerated 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 *1032 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.

I. Supreme Court Trilogy

Through a trilogy of cases, the Pennsylvania Supreme Court sanctioned a sheriffs power to enforce the Vehicle Code 9 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:

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Bluebook (online)
842 A.2d 1028, 2004 Pa. Commw. LEXIS 131, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kopko-v-miller-pacommwct-2004.