Commonwealth v. Roose

DEL SOLE, Judge: Appellant Robert P. Roose was convicted of driving under the influence and various summary traffic offenses. He was sentenced to a total of thirty to sixty days imprisonment, twenty-three months probation and $700.00 in fines. On appeal, Appellant contends that his arrest by a deputy constable [269] was illegal because the deputy constable lacked the authority to arrest him for violations of the Motor Vehicle Code, the arrest was outside the deputy constable’s jurisdiction, and the deputy constable lacked either reasonable suspicion or probable cause to stop him. We agree that deputy constables do not have the authority to arrest for violations of the Motor Vehicle Code and therefore we vacate the judgment of sentence and discharge Appellant. On January 25, 1994, at 1:15 a.m., Deputy Constable Charles Schweinberg and Constable Elaine Caparelli were waiting at a traffic light when they observed Appellant’s pickup truck pull into the oncoming traffic lane. When the light turned green, Appellant turned left and the two constables followed him. Appellant’s truck twice hit a snow bank and then swerved in front of a bus. Deputy Constable Schweinberg then activated a bubble light on his dashboard, a red and blue light located in the grille, and a siren. Appellant pulled over to the side of the road. Schweinberg asked Appellant for his registration, ordered him out of the vehicle and ultimately arrested him, handcuffed him and placed him in the back of the constable’s car. City police were contacted and arrived approximately fifteen minutes later. The police administered field sobriety tests and an in-toxilyzer, which measured Appellant’s blood alcohol content at .092, less than the legal limit. Blood and urine samples tested at Central Medical Hospital tested at .103 and .139 respectively. Appellant was convicted after a nonjury trial. Appellant first contends that constables and deputy constables in Pennsylvania do not have the authority to stop a motor vehicle and arrest the driver for violations of the Motor Vehicle Code. We agree. Although no case deals with this precise situation, our supreme court has held that a deputy sheriff had the authority to stop a vehicle and arrest the driver for a Motor Vehicle Code violation which was a breach of the peace committed in the presence of the deputy sheriff. Commonwealth v. Leet, 537 Pa. 89, 641 A.2d 299 (1994). There are several important distinctions between constables and deputy constables and sheriffs and deputy sheriffs which dilutes the precedential value of Leet. A constable is elected within an electoral district, i.e., a ward, borough or the like. The elected constable, with the approval of the court, appoints deputy constables. 13 P.S. § 21. Constables and deputy constables are not employees of any municipal subdivision as police and sheriffs are. They are not paid a salary by any municipal subdivision but rather are independent contractors whose pay is on a per job basis. 13 P.S. §§ 63-75. As independent contractors, they are not acting for or under the control of the Commonwealth and cannot be considered Commonwealth employees in order to receive legal representation when sued in connection with their duties. Rosenwald v. Barbieri, 501 Pa. 563, 462 A.2d 644 (1983). No one supervises constables in the way a police chief supervises police officers or a sheriff supervises deputies. No municipality is responsible for their actions in the way a city, borough, or township is responsible for its police or a county is responsible for its sheriffs office. In fact, our supreme court has found unconstitutional legislation which attempted to place constables under the supervisory authority of the courts. In re Act 147 of 1990, 528 Pa. 460, 598 A.2d 985 (1991). These distinctions raise interesting questions both of authority and liability. For example, is a citizen required to stop when signaled to do so by a constable or deputy constable? The offense of fleeing or attempting to elude a police officer by its very terms is limited to police officers who are in a clearly identifiable police vehicle or, if the vehicle is unmarked, the officer must be in uniform and displaying a badge. 75 Pa.C.S. § 3733. Constables and deputy constables do not have uniforms and they are not provided with municipal vehicles but use their own private cars.1 By what means does a [270] constable or deputy constable signal a driver to stop? Under the Motor Vehicle Code, a constable’s private automobile does not fit 'within the definition of an emergency vehicle, 75 Pa.C.S. § 102, and is not within that class of vehicles which may display flashing red or blue lights or use sirens.2 75 Pa.C.S. § 4571. If a constable or deputy constable violates someone’s constitutional rights, is there “state action”? What if a constable or deputy constable is injured or killed while making a traffic stop? Since there is no employer, there would be no workers’ compensation coverage, leaving the injured constable to pay any expenses. A more serious problem with motor vehicle stops is the possibility of pursuit. If the motorist refuses or fails to stop, will the constable feel compelled to instigate a chase which might endanger innocent bystanders? The General Assembly recently passed legislation requiring each municipal police department to establish policies and guidelines to be followed by officers when engaging in motor vehicle pursuits as defined by the Motor Vehicle Code. 75 Pa.C.S. § 6341 et seq. The policies must include criteria for deciding when to initiate a pursuit including the potential for harm to others, the seriousness of the offense, safety factors posing a risk to the general public, responsibilities of the various parties, including officers, supervisors and communications centers, pursuit tactics, roadblock usage, and communications during interjurisdictional pursuit. It is clear that these regulations contemplate that only properly trained and supervised police officers would be involved in such pursuits. This legislation evidences the legislature’s intent to control high speed pursuits to provide for the safety of both the participants and the general public who may simply be in the path of the pursuit. Constables and deputy constables are not part of any municipal police force and are not supervised in the manner that this statute presumes. Yet if we grant constables and deputy constables a common law right to stop vehicles, doesn’t this also include allowing them to pursue a fleeing vehicle or at least allow for the possibility that they will feel authorized to do so? Absent explicit statutory authority from the General Assembly, we hesitate to bestow such unbridled power on someone who is, as discussed below, not trained to handle such a situation. Training for police officers and constables is also vastly different. Constables and deputy constables are required to have only 80 hours of basic training, some of which is devoted to the interpretation and application of the fee schedule. 42 Pa.C.S. § 2945. Conspicuously absent from the curriculum of the basic training course is enforcement of the Motor Vehicle Code.3 Police officers are required to take a course of 520 hours of study, 40 hours of which are devoted to the Motor Vehicle Code. 37 Pa.Code § 201.21. Also mandatory for police officers are minimum physical fitness standards, psychological evaluations and background investigations to determine suitability for employment as a police officer. 53 P.S. § 744. This training must be satisfactorily completed pri- or to actually enforcing criminal laws and moving traffic violations. 53 P.S. § 748. The definition of police officer in the training act notably includes deputy sheriffs of second class counties and housing authority police of first class cities but does not include constables or deputy constables, thus these requirements do not apply to constables or deputy constables. Deputy sheriffs of second class counties who have successfully completed this training are included in the definition of “police officer” in the Crimes Code. 18 Pa. C.S. § 103. Neither constables nor deputy constables are, however, included in this definition. Our decision in Commonwealth v. Taylor, 450 Pa.Super. 583, 677 A.2d 846 (1996), is [271] factually distinguishable. In Taylor, this court upheld a constable’s warrantless arrest for a felony violation of the drug laws which was committed in the constable’s presence, an arrest that a private citizen could effect. It is important that we recognize that a motor vehicle stop is vastly different from a situation like Taylor where the constable merely walked into the house and observed drugs. A vehicle stop involves a seizure with all the constitutional implications. Any time a vehicle is stopped, there is the possibility of danger to other motorists and innocent bystanders as well as the driver and the person stopping the vehicle. In the present case, for example, Appellant was stopped after proceeding through a busy intersection and on a street which was traversed by a Port Authority bus. It was January and there were snow banks along the sides of the road. Furthermore, both Leet and Taylor recognized the need for appropriate training and remanded to the trial court to determine if the constable involved had adequate training.4 That training would include the training necessary to recognize the signs of intoxication and/or perform field sobriety tests. Police officers are trained in these procedures. Constables are not. The Commonwealth’s reliance on 18 P.S. § 45 is similarly unavailing. This section applies only to constables “of the several boroughs ” of the Commonwealth. Presently, the deputy constables involved are not constables of a borough but of wards of the City of Pittsburgh. Although discussion of the common law authority of constables is historically interesting, it is of no legal significance. Since the 19th century the Legislature has defined the duties of the office of constable by statute, even eliminating this office in the city of Philadelphia. Thus, we conclude, given this legislative regulation, that constables possess no common law police or peace officer powers but can only exercise the authority granted by statute. It would set a dangerous precedent to allocate to constables the same police powers which highly trained police officers and deputy sheriffs have. The Legislature has clearly set forth minimum training and other requirements for police officers which are not required of constables. Enforcement of the Motor Vehicle and Crimes Codes and the serious responsibilities and challenges which it entails should not be delegated to those neither trained nor supervised for such work. We find therefore that Appellant’s arrest was invalid because the deputy constable did not have the authority to arrest him for violating the Motor Vehicle Code. We therefore vacate the judgment of sentence, reverse the conviction and discharge Appellant. CIRILLO, J., files a dissenting opinion. Footnotes [1] We recognize that some constables have outfitted themselves in a "uniform" of their own choosing. However, inherent in the concept of a uniform is that all members of the particular organization, be it a police force or a Scout troop, are required by some higher authority to wear identical clothing. This is simply not possible with a constable who is an independent contractor and is not supervised by a higher authority in a particular organization. [2] It is interesting, to say the least, that Deputy Constable Schweinberg was himself in violation of the Motor Vehicle Code for using flashing lights and a siren on a vehicle which was not authorized as an emergency vehicle under the Code. [3] The basic training course consists of the following topics: role of the constable in the justice system, professional development, civil law and process, criminal law and process, use of force, mechanics of arrest, defensive tactics, prisoner transport and custody, court security, and crisis intervention. Constables’ Training Bulletin, No. 13, August 1996. [4] We believe that only certification under the Municipal Police Officers Education and Training Act, 53 P.S. § 740 et seq. is sufficient to comply with this requirement of Leet.