Does a deputy sheriff have authority in Pennsylvania to make warrantless arrests for Vehicle Code violations occurring in his or her presence? The trial court held that deputy sheriffs did not have such authority and suppressed contraband found in the motorist's vehicle following an
On May 17, 1988, while driving a marked sheriff's vehicle on Route 56 in Armstrong County, Deputy Sheriff Kevin Gibbons observed a vehicle, driven by Marshall Leet, cross double yellow lines and pass several vehicles stopped in a line of traffic. Gibbons shouted to Leet and instructed him to pull to the side of the road. When Gibbons thereafter approached Leet's car, he observed a can of beer on the front seat. Consequently, he asked Leet to exit the vehicle in order to perform a field sobriety test. Leet complied and successfully passed the test administered by Gibbons. When Leet returned to his vehicle, Gibbons asked to see Leet's driver's license, owner's card and insurance card. Leet was unable to produce a driver's license. Gibbons then initiated a call to determine the status of Leet's driving privileges and to summon police assistance. Leet's license, it was learned, was under suspension, and Officer Donald Weber arrived on the scene shortly thereafter to assist. When Gibbons entered Leet's car, with Leet's consent, to move it to a safer parking place, he observed a live "357 shell" on the floor and two paper bags behind the front seat. Subsequently, marijuana was found in one of the paper bags, and methamphetamine was found in the tape deck. Weber thereupon issued citations for driving with an expired license,
70 Am.Jur.2d Sheriffs, Police, and Constables § 3 (1987). In Pennsylvania, the Office of Sheriff is provided for by Article IX, Section 4 of the Constitution. The Constitution, however, does not define the duties of the sheriff. The Act of June 29, 1976, P.L. 475, 16 P.S. § 1216, amending the County Code, provides that sheriffs and deputy sheriffs "shall perform all those duties authorized or imposed on them by statute." The Judicial Code, at 42 Pa.C.S. § 2921, in a section entitled, "powers and duties of the sheriff," provides that the "sheriff, either personally or by deputy, shall serve process and execute orders directed to him pursuant to law." There is nowhere to be found any statutory provision authorizing sheriffs or deputy sheriffs to stop vehicles and issue citations for motor vehicle violations.
"It is well settled that `[w]hen vesting a group with police powers and duties, the Legislature does so with specificity.'" Allegheny County Deputy Sheriff's Association v. Pennsylvania Labor Relations Board, 95 Pa.Commw. 132, 135, 504 A.2d 437, 439 (1986), quoting Commonwealth v. Pennsylvania Labor Relations Board, 64 Pa.Commw. 525, 532, 441 A.2d 470, 475 (1982). That the legislature intended to vest police, not sheriffs, with authority to enforce the provisions of the Vehicle Code is clear from the numerous provisions granting police powers to police officers without any corresponding authority to sheriffs or deputy sheriffs. The authority to arrest without
The corresponding duty on motorists to exhibit a vehicle registration and driver's license upon request exists only where a signal or request therefor is made by a "police officer." 75 Pa.C.S. § 6308(a).
There is no corresponding provision in the Vehicle Code, or in any other statute, which authorizes sheriffs or deputy sheriffs to arrest motorists without a warrant and request from such motorists their operator's license, vehicle registration, or insurance card.
The language of the statute in this case is explicit. Enforcement of the Vehicle Code has been vested by the legislature in police officers. Sheriffs and deputy sheriffs are not police officers. Cf. Venneri v. County of Allegheny, 12 Pa.Commw. 517, 316 A.2d 120 (1974). A deputy sheriff has not been authorized to stop a motorist and make an arrest for a Vehicle Code violation, whether or not the violation has been committed in the deputy sheriff's presence.
A review of the history of the Vehicle Code confirms this interpretation. Both section 1203 of the Motor Vehicle Code of May 1, 1929, P.L. 905, and section 1204 of the Motor Vehicle Code of April 29, 1959, P.L. 58, authorized "peace officers, when in uniform and displaying a badge or other sign of authority [to] arrest, upon view, any person violating any of the provisions of [the Motor Vehicle Code], where the offense [was] designated a felony or a misdemeanor,
This intent was carried over into the present Vehicle Code. At 75 Pa.C.S. § 6308, the legislature authorized "police officers" to stop vehicles for any violations of the Vehicle Code.
The Commonwealth would nevertheless have us revert to the common law to find general peacekeeping duties in the sheriff. Based on authority vested in sheriffs and deputy sheriffs by the common law, the Commonwealth argues that sheriffs and deputy sheriffs have inherent power and authority to arrest without a warrant for all crimes, however defined, committed in their presence, including Vehicle Code violations. We are unable to accept this reasoning. In the first place, an attempt to imply power where the same has not been granted by statute would be in direct violation of the legislature's mandate that sheriffs and deputy sheriffs shall perform the duties imposed by statute.
Moreover, although "the sheriff's power at early common law was indeed formidable,  it is not tenable to
Finally, common law crimes have been abolished in Pennsylvania. "No conduct constitutes a crime unless it is a crime under this title or another statute of this Commonwealth." 18 Pa.C.S. § 107(b). The crime for which Leet was stopped was made an offense by the Vehicle Code. The legislature has vested the authority and the duty to arrest for violations thereof in police officers. To expand the authority of sheriffs and deputy sheriffs by implication to make such arrests is to violate the tenet that when the legislature intends to vest a group with police powers it will do so with specificity. Allegheny County Deputy Sheriff's Association v. Pennsylvania Labor Relations Board, supra.
As has been argued by Amicus, "[t]here is a comprehensive regulatory scheme governing police training, arms certification and other areas which are vital to [the] critical public service [of enforcing the Vehicle Code]. The same regulations are generally not applicable to sheriffs' employes. While no one can doubt the importance of the office of sheriff and the vital role it plays [in] the functioning of the court[s], these officials are not police [officers] by legislative design. . . ." Whether sheriffs and deputy sheriffs continue to have general peace keeping duties is not now before this Court, and with respect thereto we express no opinion. It is quite clear, however, that they have not been entrusted with authority to enforce the Vehicle Code.
When Deputy Sheriff Gibbons stopped Marshall Leet for an alleged violation of the Vehicle Code, he was acting in his capacity as "deputy sheriff" and not as a "private citizen." His conduct, therefore, implicated "state action." See and compare: Commonwealth v. Eschelman, 477 Pa. 93, 383 A.2d 838 (1978). Because Gibbons did not have authority to arrest Leet for an alleged violation of the Vehicle Code, suppression of evidence seized as a result of his unlawful arrest was an appropriate remedy. To hold otherwise would be to vest in deputy sheriffs by indirection the right to effect warrantless arrests for Motor Vehicle Code violations by holding motorists at gunpoint or otherwise until a "police officer" arrives on the scene to make a lawful arrest. Because the trial court properly suppressed the contraband seized following Leet's unlawful arrest by a deputy sheriff, its order will be affirmed.
MONTEMURO, J., files a concurring and dissenting opinion.
CIRILLO, President Judge, files a dissenting opinion joined by FORD ELLIOTT, J.
KELLY, J., did not participate in the consideration or decision of this case.
MONTEMURO, Judge, concurring and dissenting:
While I am in total agreement with the majority's disposition of this case as to the sheriff's authority to arrest, and join to that extent, I would respectfully point out that the proper remedy may not necessarily be suppression of evidence seized as a result of the unlawful arrest. I believe that, instead, the Supreme Court's holdings in Commonwealth
The Superior Court affirmed, holding that although the exclusionary rule theoretically applied in instances of citizen's arrest, the arrest under consideration was legal, and the rule therefore remained dormant. The rationale advanced was that because the state became involved after effectuation of a citizen's arrest, that is, ratified the arrest, the arresting person's conduct became chargeable to the state, and the results of that conduct became liable to suppression. The court further reasoned that despite dicta to the contrary, a citizen could arrest for breaches of the peace he had personally observed, merely by extension of the common law rule permitting such arrests after the occurrence and observation of a felony, thus lending legitimacy to the arrest in question, and insulating it from application of the exclusionary rule.
On further appeal, the supreme court, while affirming, found this court to have misapprehended the concept of state action. It distinguished between the situation in which the state bears responsibility for the results of actions performed by a private person specifically in the capacity of an instrument or agent of the state, and the situation in which the state merely uses the results of that individual's actions. The former is subject to application of the exclusionary rule since the conduct involved is not subject to criminal or civil liability, having been caused by the exercise of some state right or privilege. Suppression
Although the majority argues that the sheriff as a constitutional officer cannot be covered by the rubric "private citizen," he has no more power to arrest under the circumstances of this case than does such a citizen. If he does not have the authority to act on behalf of the state, his conduct cannot, by definition, be posited as state action. Therefore, state action is not implicated by Gibbons' "acting in his capacity as deputy sheriff" (majority Opinion at 1038), since that office never provided him with the capacity to arrest for summary offenses.
In Commonwealth v. Eschelman, 477 Pa. 93, 383 A.2d 838 (1978), our supreme court found an arrest made by off-duty auxiliary policeman to have been "ratified" by the state, where the searcher was acting as a policeman, and was treated by other officers as such. These acts of ratification followed naturally upon the authority of the officer to arrest which would have been operative otherwise than during his off-duty hours. In other situations where the power to arrest exists but has been limited by factors such as jurisdictional boundaries, see, Commonwealth v. Mason, supra, the rule of exclusion is not automatically applied to provide redress from "real or imagined transgressions of a defendant's right to be free from unreasonable searches and seizures." Corley, supra 507 Pa. at 552, 491 A.2d at 834. In Mason, our supreme court declined to apply the exclusionary rule to the fruits of a search conducted in apparent violation of Pa.R.Crim.P. 2004, which
Id., 486 Pa. at 115, 404 A.2d at 383.
As the concurrence in Corley points out, the Supreme Courts of the United States and of the Commonwealth of Pennsylvania have made clear that "the exclusionary rule will not be extended to areas where its application would not tend to achieve its primary purpose of deterring unlawful police conduct." Id. 507 Pa. at 552, 491 A.2d at 835 (emphasis in original). "It is only where the violation also implicates fundamental, constitutional concerns, is conducted in bad faith or has substantially prejudiced the defendant that exclusion may be an appropriate remedy." Mason at 407, 490 A.2d at 426 (emphasis in original). Since it has been concluded that a deputy sheriff is not a police officer regardless of his having erroneously attempted to act as one, none of the conditions specified in Mason is present, and no other factor exists which compels suppression of the evidence as a remedy.
Accordingly, I would find that the arrest was illegal, but would decline to suppress its fruits.
CIRILLO, President Judge, dissenting:
Because I am firmly convinced that a sheriff and his or her deputies are vested by the Pennsylvania constitution with all the powers and duties of a peace officer, including the authority to arrest for a summary traffic violation committed in his or her presence, I would reverse the trial court's order suppressing the evidence obtained from Leet as a result of the roadside stop conducted by Deputy Sheriff Gibbons. This conclusion is based upon a careful study of the history of the powers and duties of the sheriff and his traditional role in the enforcement of our criminal laws.
The word sheriff evolved from the Saxon word "scyre" meaning shire or county, and the word "reve" meaning guardian or keeper. The Compact Edition of the Oxford English Dictionary, Volume II, 2783-2784 (1971); A.E. Gwynne, Practical Treatise on the Law of Sheriff and
In Pennsylvania, the office of sheriff is constitutionally created: "[c]ounty officers shall consist of ... sheriffs...." Pa. Const. art. IX, § 4. While our constitution created the sheriff's office, it did not define his powers.
Sheriffs and deputy sheriffs, in their capacity as peace officers, "shall perform all those duties authorized or imposed on them by statute." 16 P.S. § 1216. Section 1216, which took effect in 1976, was an unnamed act intended to clarify the powers of sheriffs and deputy sheriffs. See Act of June 29, 1976, P.L. 475, No. 121 § 1. The act clearly contemplates legislative action to define those duties further. It does not, however, abolish the common-law duties of the sheriff. That it was not intended to do so was made clear later that same year, when the legislature enacted the Judiciary Act of 1976 amending Title 42 of the Pennsylvania Consolidated Statutes. In section 27(a) of the Judiciary Act, the legislature carefully articulated how the Title 42 amendments would affect certain officers:
Act of July 9, 1976, P.L. 586, No. 142 § 27(a) (emphasis added). Section 27(a) unmistakably emphasizes the legislature's intent that sheriffs retain the powers they already possessed.
From this history it is apparent that the portion of section 27(a) which addresses sheriffs' powers and duties has not been repealed. Nothing in section 27(a) of the Judiciary Act contradicts any provision of JARA and therefore, JARA 2(a) does not affect section 27(a). JARA 10(27) is not inconsistent with section 27(a), but simply enumerates the sheriff's duty to serve process and execute court orders. JARA 10(27) does not purport to be an all-inclusive list of a sheriff's powers and duties and should not be interpreted as one. It is not inconsistent to statutorily define one common law duty of a sheriff while leaving others basically intact.
The conclusion that section 27(a) is still viable and that JARA 10(27) does not enumerate all of the sheriff's powers is also supported by the principle that neither JARA nor JARACA could constitutionally divest a sheriff of his common law duties. Where the sheriff is a constitutional officer, he is vested with the powers and duties possessed by sheriffs at common law. W. Anderson, A Treatise on the Law of Sheriffs, Coroners and Constables with Forms, Volume 1, § 43 at 37 (1941) (hereinafter Anderson, Sheriffs); W. Murfree, Sr., A Treatise on the Law of Sheriffs and other Ministerial Officers, § 41 at 22 (1884) (hereinafter
The notion that a statute cannot limit the sheriff's common law powers and duties is reflected in the deferential language of section 27(a) of the Judiciary Act; subsequent amendments to that Act did not, and could not, alter that constitutionally required deference. Consequently, today, the sheriff possesses the power and the obligation to perform all the duties of a common law sheriff, except so far as those powers and duties may have been modified by our state constitution or enlarged by statute. Anderson, Sheriffs, § 43 at 37; see also Murfree, Sheriffs, § 41 at 22 ("[i]t is competent for the state legislature to impose upon [the sheriff] new duties growing out of public policy or convenience, but it cannot strip him of his time-honored and common-law functions, and devolve them upon the incumbents of other offices created by legislative authority"); 80 C.J.S. Sheriffs and Constables, § 35 at 203-204 (1953) (hereinafter Sheriffs and Constables) (in addition to express constitutional and statutory grants of power, sheriffs also have "such implied authority as is necessary to carry out such express authority").
Since JARA 10(27) cannot be read as an exclusive list of the modern sheriff's powers and duties, the scope of those duties must be determined with reference to the powers of
1 Pa.C.S. § 1503(a).
"The office of sheriff is one of the oldest offices known to the common law system of jurisprudence. It is an office of great dignity and greater antiquity." Anderson, Sheriffs, § 1 at 2.
Gwynne, Sheriff and Coroner at 57-58. In his role as peace keeper, the sheriff is "the principal conservator of the peace within his bailiwick." Commonwealth v. Vandyke, 57 Pa. 34, 39 (1868); see also Anderson, Sheriffs, § 42 at 36-37 (the sheriff is "responsible as conservator of the peace and protector of society against vice and crime").
Under the common law of England, the sheriff's powers and duties as keeper of the queen's peace required him to
H. Broom and E. Hadley, Commentaries on the Laws of England, Volume I at 410 (1869); see also E. Jenks, Stephen's Commentaries on the Laws of England, Volume I
Commonwealth v. Pincavitch, 206 Pa.Super. 539, 544, 214 A.2d 280, 282 (1965) (citation omitted). It is apparent from the discussion above that the common law powers of the sheriff included those of a peace officer. As these common law powers have been retained by the sheriff under the Pennsylvania constitution, it follows that the modern sheriff, in accordance with the general rule stated in Pincavitch, retains the common law authority to arrest for breaches of the peace committed in his presence.
This court has stated:
Commonwealth v. Magaro, 175 Pa.Super. 79, 82, 103 A.2d 449, 451 (1954), quoting Williamson v. United States, 207 U.S. 425, 444, 28 S.Ct. 163, 169, 52 L.Ed. 278 (1908). It appears then, that any criminal offense constitutes a breach of the peace.
Because the sheriff had, at common law, the authority to make a warrantless arrest for any breach of the peace that was committed in his presence, an authority which was given constitutional dimension when the office of sheriff was incorporated in each of Pennsylvania's constitutions, it necessarily follows that the office retains identical arrest powers today. Additionally, there is no doubt that any criminal violation constitutes a breach of the peace. Consequently, the modern sheriff is authorized to stop and arrest, without a warrant, someone who violates the Motor Vehicle Code in his presence. See Anderson, Sheriffs, § 153 at 149; see also 69 Op.Ga.Att'y Gen. 385 (1969) ("[t]he enforcement of the criminal law, which include[s] traffic regulations, is logically comprehended by the phrase `preserving the peace'").
In my opinion, since Deputy Sheriff Gibbons had the authority to stop Leet for the Motor Vehicle Code violation committed in his presence, it is clear that suppression of the evidence based on the illegality of the stop was improper. However, because this court may affirm the trial court's order, if correct, on any basis, Soloski v. Hetrick, 396 Pa.Super. 140, 154 n. 8, 578 A.2d 445, 453 n. 8 (1990), further review of the suppression court's ruling is warranted here. Should the evidence have been suppressed as the result of an illegal search of Leet's car? A careful review of the record and applicable case law can only lead to the conclusion that the methamphetamine found in the tape deck of Leet's car was procured during a valid consensual search of Leet's car and that the evidence seized should have been admitted.
After moving Leet's car to a safe parking space, Deputy Sheriff Gibbons asked Leet if he would mind opening the paper bags that were in Leet's car. Following each request, Leet voluntarily opened a bag, eventually opening a bag containing marijuana. The voluntariness of Leet's consent must be determined by the totality of the circumstances. Commonwealth v. Elliott, 376 Pa.Super. 536, 553, 546 A.2d 654, 663 (1988). Further, the record must disclose that consent was not obtained through the use of duress or coercion. Commonwealth v. Smagala, 383 Pa.Super. 466, 474, 557 A.2d 347, 350 (1989). None of the testimony from the suppression hearing even remotely suggests the existence
After discovering the marijuana and arresting Leet, the officers began to search Leet's car.
Commonwealth v. Lewis, 442 Pa. 98, 101, 275 A.2d 51, 52 (1971) (emphasis added); Commonwealth v. Rodriguez, 379 Pa.Super. 24, 28-29, 549 A.2d 578, 580 (1988) allocatur granted, 523 Pa. 649, 567 A.2d 652 (1989); see also Commonwealth v. Milyak, 508 Pa. 2, 8, 493 A.2d 1346, 1349 (1985) ("where there exists probable cause related to the vehicle or its occupants, a search of the vehicle is permissible"); Commonwealth v. York, 381 Pa.Super. 55, 63, 552 A.2d 1092, 1096 (1989) ("[w]here police officers have probable cause to believe a vehicle is carrying contraband, they may conduct a search of the vehicle as thorough as a district justice could authorize in a warrant"). Probable cause to believe that an automobile contains the fruits or instrumentalities of crime exists when the facts available to the officer would warrant such a belief in a man of reasonable caution. Rodriguez, 379 Pa.Super. at 28, 549 A.2d at 580. Here, the smell of marijuana and beer emanating from Leet's car and the subsequent lawful discovery of both substances inside the car gave rise to probable cause to believe that the car contained additional contraband. Commonwealth v. Duell, 305 Pa.Super. 431, 433, 451 A.2d 724, 725 (1982) ("probable cause to believe that the car might contain further contraband in the form of marijuana or alcohol" arose after police, during a roadside traffic stop, observed an open bottle of wine in the car and smelled marijuana); see also Commonwealth v. Bailey, 376 Pa.Super. 291,
Thus, it was during the course of a valid search that Leet yelled to the officers that more drugs were hidden in the tape deck, leading to the discovery of the methamphetamine. The only conceivable motivation for Leet's behavior was his belief that the drugs would inevitably be discovered in the course of the search. I would not characterize a legal search based on probable cause to be a source of duress or coercion or to constitute a threat that would vitiate the voluntariness of Leet's behavior. Accordingly, it is clear that Leet voluntarily instructed the officers of the location of the methamphetamine. Smagala, supra. Consequently, I would find that the methamphetamine, the drug on which the charges against Leet were based, is admissible at trial.
The foregoing discussion may be summarized as follows: first, that Deputy Sheriff Gibbons possessed the authority to stop Leet for a traffic violation committed in his presence; and second, since Leet voluntarily disclosed during the course of a valid automobile search information leading to the discovery of methamphetamine, the drugs should not have been suppressed. For these reasons, I would reverse the suppression order and remand the case for trial.
FORD ELLIOTT, J., joins.
Quite candidly . . . we are somewhat dismayed by our research disclosure that the Legislature has never chosen to enact legislation delineating the general powers, duties, and responsibilities of the sheriff.
Venneri v. County of Allegheny, 12 Pa.Commw. 517, 529, 316 A.2d 120, 126 (1974).
Most jurisdictions have statutorily defined the duties of a sheriff. Moreover, the majority of those statutes have expressly granted sheriffs the authority to arrest without a warrant. See, e.g., Arizona, (Ariz.Rev.Stat.Ann. §§ 1-215(23), 11-441(A)(2), and 13-3883 (1989)); California, (Cal.Penal Code §§ 830.1 and 836 (West 1985 & Supp. 1990)); Colorado, (Colo.Rev.Stat.Ann. §§ 16-3-102 and 18-1-901 (West 1990)); Connecticut, (Conn.Gen.Stat.Ann. §§ 54-1f and 53a-3(9) (1985 & Supp.1990)); Hawaii, (Haw.Rev.Stat. § 601-33 (1985 & Supp.1989)); Illinois, (Ill.Stat.Ann. ch. 125, para. 17 (Smith-Hurd 1967 & Supp.1989)); Indiana, (Ind.Code Ann. § 36-2-13-5 (Burns 1981 & Supp.1989)); Iowa, (Iowa Code §§ 801.4(7)(a) and 804.7 (1979 & Supp.1990)); Kentucky, (Ky.Rev.Stat. §§ 446.010(24) and 431.005 (1985 & Supp.1988)); Maine, (Me.Rev.Stat.Ann. tit. 15 § 704 (1980)); Maryland, (Md.Ann.Code art. 27, §§ 594B(a) and 594B(g)(9) (1988 & Supp.1989)); Missouri, (Mo.Ann.Stat. § 544.216 (Vernon 1987)); Nevada, (Nev.Rev.Stat. §§ 169.125(2) and 171.124 (1987)); New Hampshire (N.H.Rev.Stat.Ann. §§ 594:10 and 594:1(III) (1986 & Supp. 1989)); New Jersey, (N.J.Rev.Stat. § 2A:157-2.1 (1985)); New York, (N.Y.Crim.Proc.Law §§ 1.20(34)(b), 140.10, 140.25 and 2.10(2) (McKinney 1981 & Supp.1990)); North Dakota, (N.D.Cent.Code §§ 29-05-10 and 29-06-02 (1974 & Supp.1989)); Ohio, (Ohio Rev. Code Ann. § 2935.03(A) (1975 & Supp.1989)); Oklahoma, (Okla.Stat. Ann. tit. 22, § 196 (1969 & Supp.1990), Okla.Stat.Ann. tit. 21, § 99 (1983)); South Carolina (S.C.Code Ann. § 23-13-60 (Law.Co-op. 1977)); South Dakota, (S.D.Codified Laws Ann. § 7-12-1 (1981), S.D. Codified Laws Ann. §§ 23A-3-2 and 23A-45-9(9) (1988)); Texas, (Tex. Code Crim.Proc.Ann. arts. 2.12 and 2.13 (Vernon 1977 & Supp.1990)); Utah, (Utah Code Ann. §§ 77-1a-1(1)(a)(i) and 77-7-2 (1990), Utah Code Ann. § 17-22-2(1)(b) (1987 & Supp.1989)); Vermont, (Vt.R. Crim.P. 3(a) and 54(c)(6)); Virginia, (Va.Code Ann. § 19.2-81 (1983 & Supp.1989)); West Virginia (W.Va.Code § 62-10-9 (1989)); Wisconsin, (Wis.Stat.Ann. §§ 967.02(5) and 968.07(1)(d) (West 1985), Wis. Stat.Ann. § 59.24 (West 1988)); Wyoming, (Wyo.Stat.Ann. §§ 7-2-101(a)(iv)(A) and 7-2-103 (1987).
Several other jurisdictions, while not granting express authority to make warrantless arrests, have interpreted their arrest statutes as allowing sheriffs to make such arrests. See, e.g., Florida, (Fl.Stat.Ann. §§ 30.07 and 30.15 (West 1988), Fl.Stat.Ann. § 901.15 (West 1985 & Supp.1990), Fields v. State, 160 Fla. 877, 878, 36 So.2d 919, 920 (1948) (court justified a deputy sheriff's warrantless arrest by stating that "[t]he law of [Florida] by statute makes the sheriff and the deputy sheriff officers to conserve the peace and authorizes them to make arrests"), 72 Fl. Att'y Gen.Op. 381 (1972)); Louisiana, (La.Code Crim. Proc.Ann. art. 213 (West 1967 & Supp.1990), Castriotta v. Cronvich, 277 So.2d 744, 746 (La.Ct.App.1973) (warrantless arrest for a misdemeanor committed in the presence of the deputy sheriff was "authorized by virtue of Article 213 of the Code of Criminal Procedure")); Michigan, (Mich.Comp.Laws § 764.15 (1982 & Supp.1990), People v. Robinson, 344 Mich. 353, 364, 74 N.W.2d 41, 42 (1955) ("[a]uthority of a deputy sheriff of the county to arrest or stop defendant for a misdemeanor committed in the officer's presence cannot be questioned")); Minnesota, (Minn.Stat.Ann. § 387.03 (West 1968), Minn. Stat.Ann. §§ 626.84 and 629.34 (West 1983 & Supp.1990), Bielejeski v. Commissioner of Public Safety, 351 N.W.2d 664, 666 (Minn.Ct.App. 1984) (deputy sheriff, who was also a policeman, effectuated a warrantless arrest outside of the police's jurisdiction but the court held that "the officer had the power to arrest as a Crow Wing County Sheriff")); North Carolina, (N.C.Gen.Stat. § 15A-401(b) (1988) State v. Gray, 55 N.C. App. 568, 286 S.E.2d 357 (1982) (warrantless arrest by a deputy sheriff was valid under N.C.Gen.Stat. § 15A-401(b)).
Many other state statutes authorize the sheriff to arrest criminals as part of his duties without indicating whether the sheriff may make warrantless arrests for all crimes committed in the sheriff's presence. See, e.g., Alabama, (Ala.Code § 36-22-3(4) (1977); Arkansas, (Ark. Stat.Ann. § 14-15-503(b) (1987)); Idaho, (Idaho Code § 31-2202(2) (1983 & Supp.1989)); Massachusetts (Mass.Gen.L. ch. 37 § 11 (1985) and ch. 276 § 28 (1972 & Supp.1990); Mississippi, (Miss.Code Ann. § 99-3-1 (1973 & Supp.1989)); Montana, (Mont.Code Ann. § 7-32-2121(2) (1989)); Nebraska (Neb.Rev.Stat. § 23-1710 (1987)); Oregon, (Or.Rev.Stat. § 206.010(1) (1989)); Tennessee, (Tenn.Code Ann. § 8-8-213 (1988)); Washington, (Wash.Rev.Code Ann. § 36.28.010 (West 1964 & Supp.1990)).
However, I believe that the sheriff is a "peace officer" as defined by the Crimes Code. A "peace officer" is "[a]ny person who by virtue of his office or public employment is vested by law with the duty to maintain public order or to make arrests for offenses whether that duty extends to all offenses or is limited to specific offenses. . . ." 18 Pa.C.S. § 501 (emphasis added). As I have discussed, the office of the sheriff has always been charged with the duty to maintain public order.
As previously noted, a statute cannot extinguish the common law powers and duties of a constitutional officer. See supra at p. 496-497. Moreover, "[t]he powers of arrest conferred by [section 6304] are in addition to any other powers of arrest conferred by law." 75 Pa.C.S. § 6304(c). This clearly evidences the legislature's intent that section 6304 is not, as the majority states, an exclusive list of those officers authorized to make warrantless arrests. Because, as outlined above, the common law and our constitution confer upon the sheriff the power to arrest for any violation of a criminal statute occurring in his presence, 75 Pa.C.S. § 6304(a) and (b) should not be construed to limit the power to make warrantless arrests to state and local policemen.
In Commonwealth v. Galloway, 525 Pa. 12, 574 A.2d 1045 (1990), the Commonwealth argued that an investigator for the Attorney General's Office possessed the power to stop and arrest a motorist violating the Motor Vehicle Code. Our supreme court disagreed. The Commonwealth Attorney's Act, 71 P.S. § 732-101 et seq., grants members of the Attorney General's Office the power to arrest but restricts that power to arrests made in connection with the investigation and prosecution of offenses enumerated in 71 P.S. § 732-205. 525 Pa. at 18, 574 A.2d at 1048. The court acknowledged that if enforcement of the Motor Vehicle Code was listed as a duty in section 732-205, by virtue of 75 Pa.C.S. § 6304(c), the investigator would possess the power to arrest for violations of that Code. However, section 732-205 does not mention enforcement of the Motor Vehicle Code. Hence, the power to stop for a Motor Vehicle Code violation was not otherwise "conferred by law" as required by 75 Pa.C.S. § 6304(c) and accordingly, the investigator had no authority to arrest for Motor Vehicle Code violations. See Galloway, 525 Pa. at 14-15, 574 A.2d at 1046.
Galloway's holding that members of the Attorney General's Office cannot stop motorists for Motor Vehicle Code violations does not affect the conclusion that the sheriff does possess such power. Galloway is easily distinguished because it is based wholly on the supreme court's interpretation of the scope of power conferred on the Attorney General by the Commonwealth Attorney's Act. This Act does not purport to regulate the powers and duties of a sheriff and therefore the Act, and the Galloway decision, are not dispositive of the issue before this court. However, the Galloway court expressly recognized that arrest powers can arise from sources other than section 6304. 525 Pa. at 18-19 n. 2, 574 A.2d at 1048 n. 2. Thus, our statutes do not preclude this court from looking to the common law as the origin of the sheriff's arrest powers.