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stating the criminal standard for breach of the peace
Summary of this case from Gonzalez v. VJ Wood Recovery, LLCOpinion
No. 48 MAP 2019
04-22-2020
COMMONWEALTH of Pennsylvania, Appellee v. Victor Lee COPENHAVER, Appellant
OPINION
In this appeal by allowance, we address whether a deputy sheriff may conduct a traffic stop on the basis of an expired registration sticker, on the theory that such a violation amounts to a breach of the peace.
In August 2015, a deputy sheriff conducted a vehicle stop of Appellant's pickup truck. Upon approaching the truck, the deputy noticed an odor of alcohol and marijuana emanating from the passenger compartment. After administering field sobriety tests, he arrested Appellant for suspected driving under the influence of alcohol and controlled substances ("DUI"). See 75 Pa.C.S. § 3802(d). Appellant was ultimately charged with DUI and other offenses.
Appellant challenged the deputy's authority to conduct a traffic stop and sought suppression of all evidence obtained during the encounter. Rather than presenting testimony at a suppression hearing, the parties stipulated that Appellant was driving the vehicle in question and that the deputy had training and qualifications equivalent to that of a police officer. The parties also agreed that:
The vehicle stop occurred as a result of the deputy ... observing the tailgate to the pickup truck operated by ... [Appellant] being in a down position. This caught his attention. He further observed that the registration on the pickup truck was expired, and additionally, the registration number was identified as belonging to a vehicle other than the one on which it was attached[.]
Order of Stipulated Facts 1, ¶2, Jan. 12, 2016. In connection with the motion to suppress, Appellant argued that an expired registration tag does not give rise to a breach of the peace for purposes of a deputy's residual common law authority to make arrests. See Commonwealth v. Copenhaver , No. CP-01-CR-0001070-2015 (C.P. Adams), Brief for Defendant at 3. See generally Commonwealth v. Leet , 537 Pa. 89, 96, 641 A.2d 299, 303 (1994) (concluding that appropriately trained sheriffs and their deputies retain authority at common law to enforce the motor vehicle code whenever an offense involving a breach of the peace occurs in their presence).
Both parties acknowledged that the deputy was aware that the truck's tailgate was down at the time of the stop. That factor, however, does not give rise to a Vehicle Code violation, and the parties’ present advocacy does not elaborate on what, if any, significance should be attributed to it. In any event, it is beyond the scope of the question presented to this Court. As such, we do not consider it material to this appeal.
By contrast, the Commonwealth apparently interpreted the above-quoted portion of the stipulation as signifying that the deputy was aware, before the stop, not only that the sticker had expired, but that it belonged to another vehicle. Thus, positing that Appellant's actions were indicative of public risk, namely, a possible vehicle theft, the Commonwealth argued that the factors described in the stipulation, taken together, gave rise to a breach of the peace. See Copenhaver , No. CP-01-CR-0001070-2015 (C.P. Adams), Brief for Commonwealth at 4-5.
The common pleas court denied suppression. In its reasoning, the court relied on a line of this Court's cases reinforcing that duly-trained sheriffs’ deputies – that is, deputies who have received the same training required of police officers – have residual common law authority to enforce the Vehicle Code when they witness a violation that comprises a breach of the peace. See, e.g. , Commonwealth v. Marconi , 619 Pa. 401, 413-14, 64 A.3d 1036, 1043-44 (2013) ; Commonwealth v. Lockridge , 570 Pa. 510, 516, 810 A.2d 1191, 1194 (2002) ; Leet , 537 Pa. at 96, 641 A.2d at 303. Because the deputy who stopped Appellant's truck had received the same training required of police officers, the court determined that he was authorized to conduct a stop if the violation he witnessed amounted to a breach of the peace. Seemingly in agreement with the Commonwealth's understanding of the stipulation, the court concluded that, because the deputy observed Appellant operating the truck with an expired registration tag, which also belonged to a different vehicle, the truck could have been stolen, which would "certainly [be] a breach of the peace." Commonwealth v. Copenhaver , No. CP-01-CR-1070-2015, slip op. at 6 (C.P. Adams Nov. 20, 2017).
Although Appellant's Rule 1925(b) statement expressly challenged the deputy's authority to stop his vehicle on the sole basis of an expired registration sticker, the trial court, as noted, proceeded from the premise that the deputy was aware, before making the stop, that the registration was associated with a different vehicle. However, it did not explain why it read the stipulation in this way, nor did it address whether a registration tag's expired status, without more, involves a breach of the peace.
After a bench trial, Appellant was convicted of DUI and other offenses, and he was sentenced to a term of partial confinement. Appellant lodged an appeal, arguing that his suppression motion should have been granted because operating a vehicle with an expired registration sticker does not by itself constitute a breach of the peace.
The Superior Court affirmed in a published decision. See Commonwealth v. Copenhaver , 200 A.3d 956 (Pa. Super. 2018). The court relied on this Court's decisional law, noted above, affirming that appropriately trained deputies are permitted to make arrests for Vehicle Code violations amounting to an in-presence breach of the peace. The court highlighted that, aside from concluding that not all Vehicle Code violations comprise a breach of the peace, see Marconi , 619 Pa. at 411 n.6, 64 A.3d at 1042 n.6 (suggesting that the failure to use a seatbelt is not a breach of the peace), this Court has yet to expound upon which offenses rise to that level.
Although the Commonwealth maintained that the totality of Petitioner's actions amounted to a breach of the peace, the Superior Court nonetheless chose to limit its discussion to whether driving with an expired registration tag, in and of itself, involved a breach of the peace, without considering the other stipulated facts. As a means of resolving that limited question, the court relied on its decision in Commonwealth v. Lockridge , 781 A.2d 168 (Pa. Super. 2001), aff'd on other grounds , 570 Pa. 510, 810 A.2d 1191 (2002).
Notably, in its brief to the Superior Court, the Commonwealth conceded that operating a vehicle with an expired registration sticker, without more, may not constitute a breach of the peace. See Commonwealth v. Copenhaver , 200 A.3d 956 (Pa.Super. 2018), Brief for Commonwealth at 12.
For his part, Appellant criticized the trial court's failure to consider whether operating a vehicle with an expired registration tag amounted to such a breach. Appellant expressed confusion as to how the deputy could have been able to determine whether Appellant's expired registration sticker belonged to a different vehicle, reasoning that, "[w]hen registration stickers were required, they only showed the date it expired, and no further identifying information." Id. , Brief for Appellant at 19 n.9. Appellant claimed that, in an attempt to elevate a minor Vehicle Code violation to a breach of the peace, the trial court improperly stated that the registration on Appellant's truck belonging to a different vehicle evidenced a possible theft.
In Lockridge , the intermediate court rejected the defendant's contention that deputy sheriffs should only be permitted to issue citations for Vehicle Code violations where the actions involved are comparable to disorderly conduct as defined by the Crimes Code. See 18 Pa.C.S. § 5503. Lockridge reasoned that such an interpretation of Leet would illogically limit the authority of a trained deputy. Ultimately, the Lockridge court held that driving with a suspended license was a breach of the peace. See Lockridge , 781 A.2d at 170. Turning to the facts of the present case, the Superior Court concluded that, in light of Lockridge , Appellant's action in driving the pickup truck with an expired registration tag involved a breach of the peace, thus authorizing the deputy to conduct the traffic stop. See Copenhaver , 200 A.3d at 963.
Appellant sought further review in this Court, and framed the issue for resolution as follows:
Did the Superior Court err in finding that an expired vehicle registration tag constitutes a "breach of the peace", thus granting sheriffs and citizens a common law power to arrest on that basis alone?
Commonwealth v. Copenhaver , ––– Pa. ––––, 215 A.3d 970 (2019) (per curiam ).
Appellant maintains that operating a vehicle with an expired registration tag does not entail a breach of the peace as understood at common law. Specifically, Appellant observes that, prior to the enactment of the Crimes Code, such a breach was defined as an "outward, visible, audible or violent demonstration; not from quiet orderly and peaceable acts secretly done ...." Commonwealth v. Sherman , 14 Pa. D.&C. 4, 8 (C.P. Phila. 1930). Although Appellant acknowledges the Superior Court's previous determination that all indictable misdemeanors amount to breaches of the peace, see Commonwealth v. Magaro , 175 Pa. Super. 79, 83-84, 103 A.2d 449, 452 (1954), he stresses that summary offenses, which were recognized at common law, are considered to be "of a petty nature or of lesser gravity than an indictable offense." Commonwealth v. Cano , 389 Pa. 639, 650, 133 A.2d 800, 805 (1957) (citing Duke v. United States , 301 U.S. 492, 495, 57 S. Ct. 835, 836-37, 81 L.Ed. 1243 (1937) ). Because operating a vehicle with an expired registration is a summary offense, see 75 Pa.C.S. § 1301(d), Appellant posits that the violation is of a petty nature. As such, Appellant advances that the offense does not constitute a breach of the peace empowering a deputy sheriff to conduct a traffic stop pursuant to any residual common law authority. The Commonwealth concedes that operating a vehicle with an expired registration sticker, in and of itself, may not comprise a breach of the peace. Because the expired registration belonged to a different vehicle, however, the Commonwealth argues (as it did before the Superior Court) that a reasonable possibility existed that the truck may have been stolen. Thus, the Commonwealth submits that Appellant's Vehicle Code violations, when considered together, gave rise to a breach of the peace.
Appellant also argues that deputy sheriffs should not be authorized to effectuate traffic stops based on supposed common law powers. His claim in this regard amounts to a contention that the Leet line of cases should be overruled. Any issue along those lines is beyond the scope of the question presently before this Court. See generally Pa.R.A.P. 1115(a)(3) ; Commonwealth v. Metz , 534 Pa. 341, 347 n.4, 633 A.2d 125, 127 n.4 (1993) (observing that "on appeal we are limited to the issues as framed in the petition for allowance of appeal") (citation omitted); Rendell v. Pa. State Ethics Comm'n , 603 Pa. 292, 309, 983 A.2d 708, 718 (2009) (same).
The question before this Court, however, is limited to whether operating a vehicle with an expired registration sticker, standing alone, amounts to a breach of the peace, and hence, that is the only question we will resolve. See supra note 4. As "breach of the peace" was a criminal offense prior to the enactment of the Crimes Code, and as this Court has not yet had occasion to describe the contours of that concept, we begin by turning to the historical definition of the phrase to determine its present application.
As Appellant highlights, before the Crimes Code was enacted, Pennsylvania courts recognized that a breach of the peace "generally manifests [itself] by some outward, visible, audible or violent demonstration; not from quiet, orderly and peaceable acts secretly done ...." Sherman , 14 Pa. D.&C. at 8. Scholarly commentary also indicates that "breach of the peace" has been associated with violent or potentially violent conduct. See, e.g. , Thomas Y. Davies, The Fictional Character of Law-and-Order Originalism: A Case Study of the Distortions and Evasions of Framing-Era Arrest Doctrine in Atwater v. Lago Vista , 37 WAKE FOREST L. REV. 239, 300 (2002) (indicating that "both the major common-law treatises and the immediate post-framing American sources indicated that ‘breach of the peace’ was understood to refer to violent or potentially violent public tumults or disturbances").
Consistent with this understanding, other jurisdictions have equated a breach of the peace with violent or dangerous activities or behavior. See, e.g. , Kansas City v. Thorpe , 499 S.W.2d 454, 458 (Mo. 1973) (" ‘[B]reach of the peace,’ ... refers only to acts or conduct inciting violence or intended to provoke others to violence."); People v. Perry , 265 N.Y. 362, 193 N.E. 175, 177 (1934) ("A breach of the peace is ... a disturbance of public order by an act of violence, or by any act likely to produce violence, or which, by causing consternation and alarm, disturbs the peace and quiet of the community." (internal quotation marks and citations omitted)); accord State v. Randolph , 239 S.C. 79, 121 S.E.2d 349, 350 (1961). To take one example, Wisconsin's Court of Appeals has held that driving under the influence of alcohol comprises a breach of the peace, as the dangerous nature of the offense threatens public safety. See City of Waukesha v. Gorz , 166 Wis.2d 243, 479 N.W.2d 221, 223-24 (Wis. Ct. App. 1991).
We find the thrust of these judicial and scholarly expressions persuasive. Accordingly, we now hold that – for purposes of a deputy sheriff's common law authority to enforce the Vehicle Code – a breach of the peace arises from an act or circumstance that causes harm to persons or property, or has a reasonable potential to cause such harm, or otherwise to provoke violence, danger, or disruption to public order.
In our view, operating a vehicle with an expired registration sticker does not fit within that description, as it is not a violent or dangerous action, nor is it likely to lead to public disorder. Indeed, to the contrary, a vehicle's registration tag expires with the passage of time and, as such, the expiration is passive in nature (although there may be intentionality or knowledge with regard to the decision to drive with an expired registration). Driving a vehicle with such a sticker, moreover, does not tend to incite violence, disorder, public or private insecurity, or the like. That being the case, we conclude that driving a vehicle with an expired registration does not entail a breach of the peace.
In light of the foregoing, we will vacate the order of the Superior Court insofar as it held that operating a vehicle with an expired registration tag involved a breach of the peace, thus alone authorizing the deputy to stop Appellant's vehicle. Notably, and as developed above, in light of its holding, the Superior Court did not proceed to consider other relevant questions, such as whether the parties’ factual stipulation should be read as indicating that the officer's understanding that the registration sticker was associated with a different vehicle arose in the pre-stop timeframe – consistent with the Commonwealth's position throughout this litigation. These issues should be resolved in the first instance by the intermediate court on remand.
Accordingly, the order of the Superior Court is vacated, and the matter is remanded to that court for further proceedings consistent with this opinion.
Justices Baer, Todd, Donohue, Dougherty and Mundy join the opinion.
Justice Wecht files a concurring and dissenting opinion.
CONCURRING AND DISSENTING OPINION
JUSTICE WECHT
I join the Majority's straightforward and important holding "that driving a vehicle with an expired registration does not entail a breach of the peace." Maj. Op. at 247. I write separately to address three topics.
First, whereas the Majority remands this case to the Superior Court, I would instead resolve the matter here. The Majority directs the Superior Court to determine "whether the parties’ factual stipulation should be read as indicating that the officer's understanding that the registration sticker was associated with a different vehicle arose in the pre-stop timeframe ...." Id. Based upon the record before us, I would rule that the stipulation does not create such an understanding.
Second, even assuming that a court should interpret the parties’ stipulation in the manner that the Commonwealth proposes, driving with a registration sticker belonging to another vehicle would not amount to a breach of the peace under the Majority's own definition.
Finally, I believe that our decision in Commonwealth v. Leet , 537 Pa. 89, 641 A.2d 299, 303 (1994) (holding that "a sheriff (and his deputies) may make arrests for motor vehicle violations which amount to breaches of the peace committed in their presence," even in the absence of any authorizing statute), should be overruled, given its flawed logic and this Court's continued struggle to outline the contours of sheriffs’ common law arrest powers.
Below, I take up each point in turn.
I
The Commonwealth maintains that it was before stopping Copenhaver that Deputy Sheriff Timothy Beall discovered that the registration sticker on Copenhaver's vehicle actually belonged to another vehicle. The Majority states that this is "consistent with the Commonwealth's position throughout this litigation." Maj. Op. at 247. While the Commonwealth may have advanced this view consistently, at least at the appellate level, it is a position inconsistent with the actual record facts of the case.
Notably, Deputy Beall, the arresting officer, testified at trial that he pulled over Copenhaver only because the registration sticker had expired, and that he learned that the registration belonged to another vehicle only after stopping Copenhaver. See Notes of Testimony ("N.T."), 7/12/2017, at 14 ("During the traffic stop, we did receive information back from our dispatcher that not only was the tag expired as the sticker displayed, the tag which was on the truck did not even go to the truck, nor was it a truck tag, if I remember correctly."); id. at 20 (responding, "That is correct" to a question asking, "Your report notes that you then pulled [Copenhaver] over for that expired registration sticker; is that correct?"); id. at 24 (stating that "that's the reason we kept following him is we were waiting on the dispatcher to confirm that the tag was in fact expired"). The Assistant District Attorney also argued to the trial court that Deputy Beall pulled over Copenhaver only for an expired registration. See id. at 52 ("[Deputy Beall] testified that ... he did not observe any Vehicle Code violations other than the expired registration").
In the affidavit of probable cause, attached to the initial criminal complaint, Deputy Beall, the arresting officer and only witness at Copenhaver's trial, attested that he and Deputy Sheriff Angel Garcia "were in uniform, operating an unmarked patrol vehicle," when they noticed "a gray Dodge Truck traveling westbound in front of them." Affidavit of Probable Cause, 9/3/2015, at 1 ("Beall Affidavit"). Deputy Beall stated that "[f]urther examination revealed the tag had an expired [registration] sticker." Id. After the truck made another turn, the "Deputies stopped the vehicle for the violation." Id.
The next paragraph of the affidavit establishes that it was only after Deputy Beall "approached the driver," after Deputy Beall "advised [Copenhaver] why he was stopped and asked [him] to produce his license," after Copenhaver told Deputy Beall that he had a suspended license, after Deputy Beall "could smell an odor of marijuana ..., as well as a strong odor of an alcoholic beverage," after Deputy Beall noted Copenhaver's "bloodshot eyes and slurred speech," and after Copenhaver told Deputy Beall that "he had an outstanding arrest warrant," that Deputy Beall did proceed to "check[ ] Mr. Copenhaver's information via the dispatcher" and then learned that "the registration displayed on the truck came back to a 2001 Pontiac," not the Dodge truck that Copenhaver was driving. Id.
Copenhaver filed a motion to suppress the evidence resulting from the search of his vehicle, arguing that he had not committed a breach of the peace and that Deputy Beall thus could not have made the stop under a sheriff's common law authority. Copenhaver asserted only that Deputies Beall and Garcia "noticed that [Copenhaver's] vehicle registration tag had expired," citing the Incident Report which contained language identical to that in the Beall Affidavit. Copenhaver's Motion to Suppress at ¶ 2. Copenhaver went on to write that "[a]s a result of the expired tag, the sheriffs effectuated a traffic stop." Id.
But then a funny thing happened on the way to the (judicial) forum. The suppression court issued an order reporting that the parties agreed to a set of stipulated facts, including the following:
The vehicle stop occurred as a result of the deputy sheriff observing the tailgate to the pickup truck operated by [Copenhaver] being in a down position. This caught his attention. He further observed that the registration on the pickup truck was expired, and additionally, the registration number was identified as belonging to a vehicle other than the one on which it was attached.
Order of Stipulated Facts, 1/12/2016, at ¶ 2 (emphasis added).
Our standard of review for an order denying suppression is well-settled:
When we review the ruling of a suppression court we must determine whether the factual findings are supported by the record. When it is a defendant who has appealed, we must consider only the evidence of the prosecution and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted. Assuming that there is support in the record, we are bound by the facts as are found and we may reverse the suppression court only if the legal conclusions drawn from those facts are in error.
Commonwealth v. Hicks , ––– Pa. ––––, 208 A.3d 916, 925 (2019) (citation omitted). Additionally, for the purpose of reviewing the suppression court's determination, we restrict ourselves—correctly so—to the record at the time of that ruling. Commonwealth v. Frein , ––– Pa. ––––, 206 A.3d 1049, 1064 (2019) (citing In re L.J. , 622 Pa. 126, 79 A.3d 1073, 1085 (2013) ).
Less established, however, is how a reviewing court must assess a situation in which the parties dispute the meaning of a stipulated fact. The very definition of "stipulation" opposes the notion of a dispute. See Stipulation , BLACK'S LAW DICTIONARY (11th ed. 2019) ("A voluntary agreement between opposing parties concerning some relevant point; esp., an agreement relating to a proceeding, made by attorneys representing adverse parties to the proceeding."). However, as the Majority notes, the parties disagree here as to whether the set of stipulated facts meant only that Deputy Beall, before stopping Copenhaver's vehicle, had observed that the registration sticker was expired, or, rather, that Deputy Beall additionally observed at that juncture that the registration belonged to a different vehicle. See Maj. Op. at 243-44.
When the parties dispute the meaning of a "stipulated" fact, it is prudent to read that fact in the light most favorable to the party who prevailed in the suppression court, "[a]ssuming that there is support in the record" at the time of the suppression hearing for such an interpretation. Hicks , 208 A.3d at 925. Even under such a standard, nothing in the record suggests that Deputy Beall knew—before he stopped Copenhaver—that the registration belonged to another vehicle. The language in Deputy Beall's affidavit, which comprises the totality of the factual record before the court at the time of the suppression motion (aside from the disputed stipulation), is clear. After stopping Copenhaver's vehicle and speaking with Copenhaver,
Deputy Beall checked Mr. Copenhaver's information via the dispatcher and it was learned that Mr. Copenhaver's driver's license had expired (9-30-1993) and the warrant was active. Additionally, the registration displayed on the truck came back to a 2001 Pontiac and was verified as expired.
Beall Affidavit at 1. Thus, there is no "support in the record," Hicks 208 A.3d at 925, as of the time the suppression motion was filed, to allow for the Commonwealth's position. The stipulation cannot be read to indicate that Deputy Beall knew about the registration mismatch before he stopped Copenhaver's vehicle. Thus, there is no need to remand that particular issue to the Superior Court.
Read in isolation, the language of the Order of Stipulated Facts could support either perspective. It is possible to read the phrase "[h]e further observed" in the second sentence as modifying both "that the registration on the pickup truck was expired" and "additionally, the registration was identified as belonging to a vehicle other than the one on which was attached." Conversely, it is possible to read "[h]e further observed" as only modifying the first phrase—the reference to the expired registration. Indeed, the final phrase is written in the passive voice; "the registration number was identified" as belonging to the 2001 Pontiac. Deputy Beall did not necessarily himself identify that the registration belonged to another vehicle. Consistent with the Beall Affidavit, the stipulation should be read as meaning that another party, the dispatcher, identified the registration mismatch. And, as Deputy Beall noted in the affidavit, he did not hear from the dispatcher until after he learned Copenhaver's identity, which did not occur until after Deputy Beall stopped the vehicle.
I do not dispute that it is possible for a law enforcement officer to know that a registration sticker belongs to another vehicle before stopping a driver. While Copenhaver was on bail, pending appeal of this case, he again was stopped for allegedly driving under the influence. On September 21, 2018, Gettysburg Borough Police Department Officer Shannon Hilliard noticed a Jeep parked behind a stop sign. Before stopping the vehicle, Officer Hilliard "ran the registration to find that it was registered to a 2010 Cougar trailer, not a Jeep." Affidavit of Probable Cause, 12/22/2018, at 1. Only after running this registration did Officer Hilliard attest that she attempted to pull over Copenhaver. Id. ; see also Commonwealth's Motion to Revoke Bail at ¶ 5 (noting that Officer Hilliard "was attempting to pull [Copenhaver] over for an improper registration number"). Unlike Officer Hilliard, Deputy Beall never stated that he ran the registration number through a database before attempting to stop Copenhaver's vehicle.
Additionally, the manner in which the Commonwealth ran with those stipulated facts, and the trial court's response, deserve comment. In its brief opposing Copenhaver's motion to suppress, the Commonwealth stated repeatedly that Deputy Beall observed that the registration belonged to another vehicle. See Commonwealth's Memorandum of Law in Support of Sheriff Deputy Authority to Conduct Traffic Stop ("Commonwealth's Suppression Brief"), 1/26/2016, at 1–2 ("Deputy Beall conducted a vehicle stop after observing ... that the registration displayed on the truck was expired and actually belonged on a different vehicle."); id. at 2 ("Deputy Beall had the authority to conduct a traffic stop of [Copenhaver's] vehicle after observing [Copenhaver] ... with a displayed registration that belonged on a vehicle other than the one [Copenhaver] was operating."); id. at 4 ("Here, we have a traffic stop occurring after Deputy Beall noticed that Copenhaver was operating a pick-up truck ... that had an expired registration sticker. Further, Deputy Beall determined that the registration that was displayed on Copenhaver's truck belonged to a different vehicle altogether. Based upon those observations, Deputy Beall conducted a traffic stop of Copenhaver's vehicle."); id. at 5 ("Deputy's Beall's traffic stop ... followed ... the display of a registration that belonged on another vehicle."). At no point did the Commonwealth cite to the factual record, or even to the stipulated facts, for support of any of these statements.
Most stridently, the Commonwealth posited that the registration belonging to another vehicle endangered public safety:
In addition to posing a safety risk to the public by not being properly registered, the display of a registration upon a vehicle to which it does not belong constitutes a breach of the peace because it can hide the true identity of the vehicle and its operator, specifically whether the vehicle is stolen and whether the driver is a fugitive from justice. Displaying a registration upon the wrong vehicle can also serve to conceal other countless acts of criminal activity constituting a breach[ ] of the peace, such as drug trafficking, human trafficking, illegal
transport or possession of firearms, etc. Actions to conceal such behavior, i.e. [,] displaying an improper registration upon a vehicle, disturb public order and amount to breaches of the peace.
Id. at 5–6. The Commonwealth cited nothing from the record that indicated that Copenhaver used a vehicle registration to commit or attempt theft, drug trafficking, human trafficking, or illegal transport or possession of firearms. And the Commonwealth cited no legal authorities, professional publications, or other sources to support its claim that, in general, operating a vehicle with a registration belonging to another vehicle is calculated to facilitate the commission of or increase the likelihood of any such crimes.
The trial court denied the motion to suppress in a one-paragraph order, citing our decisions in Leet and Commonwealth v. Marconi , 619 Pa. 401, 64 A.3d 1036 (2013). However, in its Pa.R.A.P. 1925(a) opinion, the trial court elected to adopt the position that the Commonwealth took in its Suppression Brief. After opining that the stipulated facts meant that "Sheriff Deputy Beall initiated a traffic stop because he observed that the registration on [Copenhaver's] vehicle was not only expired but also belonged to a different vehicle," Trial Court Opinion Pursuant to Pa.R.A.P. 1925(a), 11/20/2017, at 5 ("Trial Ct. Rule 1925(a) Op."), the court wrote that "[a]rguably, the vehicle could have been stolen, which is certainly a breach of the peace. Therefore, Sheriff Deputy Beall had the authority to conduct a vehicle stop for a violation of the Motor Vehicle Code," id. at 5–6. Like the Commonwealth, the trial court cited no facts in the record nor any support from any legal or professional authority in general to support the conclusory assumption that a mismatched registration meant that the vehicle "could have been stolen." Any number of things could have been true, and a great many things are always possible. But adjudication requires proof. It cannot rely upon bootstrapping.
While critiques of our adversarial system abound, " ‘the worst and most unjust system is assuredly ... an adversary system which weighs the scales, contrary to its fundamental premises, in favor of the prosecution.’ " Commonwealth v. Coley , 466 Pa. 53, 351 A.2d 617, 628 n.20 (1976) (Roberts, J., dissenting) (quoting ALEXANDER BICKEL, THE MORALITY OF CONSENT 82 (1975)). Our trial courts, especially when acting as factfinders, have the right, even the duty, to weigh the parties’ arguments. However, a trial court should not adopt wholesale a party's assertion when that assertion is not supported by any legal or factual authority. When a "claim[ ] has [not] been developed beyond ... unsupported assertions," a court "will not develop the claims for" that party. Commonwealth v. Cotto , 562 Pa. 32, 753 A.2d 217, 224 n.6 (2000). This truism is applicable to unsupported arguments advanced by defendants and prosecutors alike. See Commonwealth v. Sherwood , 603 Pa. 92, 982 A.2d 483, 507 n.34 (2009) ; Commonwealth v. Fant , 502 Pa. 268, 465 A.2d 1245, 1247 (1983) (Flaherty, J., dissenting).
It was error here for the trial court to adopt via opinion the Commonwealth's bald assertion that Copenhaver's "vehicle could have been stolen" based upon mismatched registration, Trial Ct. Rule 1925(a) Op. at 5, an assertion that the court then in turn deployed to support its breach of the peace rationale. There is no accusation that the trial court arrived at its conclusion out of ill will towards Copenhaver. Nonetheless, by adopting the Commonwealth's unsupported argument, in a written opinion meant to aid the Superior Court upon appeal, the trial court implicitly "weigh[ed] the scales ... in favor of the prosecution." Coley , 351 A.2d at 628 n.20 (Roberts, J., dissenting) (citation and quotation marks omitted). This transgressed a core tenet at the heart of our adversarial system: the principle that our trial courts act as neutral arbiters, impartially evaluating the parties’ arguments for credibility and persuasiveness in order to arrive at a just outcome. As the Supreme Court of the United States stated recently in the context of administrative law, "[i]f judicial review is to be more than an empty ritual, it must demand something better" than "an explanation for ... [an] action that is incongruent with what the record reveals." Dep't of Commerce v. New York , ––– U.S. ––––, 139 S. Ct. 2551, 2575–76, 204 L.Ed.2d 978 (2019). In this instance, the trial court failed to "demand something better" than the Commonwealth's bald assertions involving a litany of crimes that Copenhaver was never accused of committing.
II
But let us assume for a moment that the stipulated facts could be interpreted as meaning that Deputy Beall somehow knew that the registration belonged to another vehicle before he stopped Copenhaver. Even in such a scenario, the Majority's own definition of "breach of the peace" precludes a finding that a mismatched registration would amount to a breach of the peace.
In its brief to this Court, the Commonwealth, again, without any legal, factual, or record citation, asserted that "[a]s a result" of learning that the registration belonged to another vehicle, "Deputy Beall had information leading to a reasonable conclusion that the vehicle might be stolen at a time prior to the traffic stop." Commonwealth's Brief at 15.
Citing trial court opinions from our own Commonwealth, precedent from our sister states, and a law review article, the Majority determines that "a breach of the peace arises from an act or circumstance that causes harm to persons or property, or has a reasonable potential to cause such harm, or otherwise to provoke violence, danger, or disruption to public order." Maj. Op. at 246. The Majority rightly concludes that, for crimes against persons, the accused conduct must be "a violent or dangerous action" or must "lead to public disorder." Id. at 246.
To extent that the Majority includes harm to property, I believe that it is unnecessary to reach that issue here. While it is conceivable that certain property-related crimes could constitute breaches of the peace, it is also easy to imagine de minimis property violations which would not amount to breaches of the peace. Sweeping in all property crimes could raise constitutional questions about notice and vagueness. Cf. Commonwealth v. Duda , 592 Pa. 164, 923 A.2d 1138, 1147 (2007) ("The due process void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.") (quotation marks omitted); Wright v. Georgia , 373 U.S. 284, 293, 83 S.Ct. 1240, 10 L.Ed.2d 349 (1963) (concluding that the conviction of six defendants, who protested racial discrimination by playing basketball in a segregated public park, violated due process because "it [could] not be maintained that petitioners had adequate notice that their conduct was prohibited by the breach of the peace statute").
It is difficult to imagine how a registration sticker belonging to another vehicle constitutes a "violent or dangerous action" or "lead[s] to public disorder." Just as driving with a registration sticker showing that the vehicle's registration has expired "does not tend to incite violence, disorder, public or private insecurity, or the like," id. , neither does driving with a registration sticker that does not match the vehicle upon which it sits. The average resident driving on our Commonwealth's roads or strolling on our Commonwealth's sidewalks would not believe that a mismatched registration sticker on a nearby vehicle (assuming that the average resident might somehow notice such defect ) is a violent action being committed against other members of the public. It is inconceivable that the act of driving with the wrong sticker, in and of itself, disrupts the public order. If it does, we have opened the door to law enforcement interventions in all manner of circumstances in which no one would claim to discern a breach of the peace.
The Pennsylvania Department of Transportation does not even issue registration stickers anymore. See 75 Pa.C.S. § 1332(d) ("Validating registration stickers shall not be issued or required to be displayed."); Pennsylvania Department of Transportation, Effective 12/31/16, PennDOT will no longer issue Vehicle Registration stickers , Title/Registration, https://www.dmv.pa.gov/VEHICLE-SERVICES/Title-Registration/Pages/Registration-Stickers.aspx (last visited Feb. 24, 2020).
As noted above, while the trial court imagined that a mismatched sticker led to an inference of theft, unless the individual accused of breaching the peace is actually committing that theft in a violent way that harms (or threatens to harm) another person, such speculation is improper in determining that the registration belonging to another vehicle is a breach of the peace.
III
Since our Nation's founding, this Commonwealth's Constitutions have recognized the office of county sheriff. See PA. CONST. of 1776, Frame of Government, §§ 19, 31; PA. CONST . of 1790, art. II, § 8, art. VI §§ 1, 3 ; PA. CONST. of 1838, art. VI, §§ 1, 4 ; PA. CONST. of 1874, art. III, § 7, art. XIV, §§ 1, 4, amend. of Nov. 6, 1945; PA. CONST. art. IX, § 4. Curiously, however, while our Constitution mentions the existence of the county sheriff, its text does not assign or specify any duties of that office. See PA. CONST. art. IX, § 4 ("County officers shall consist of ... sheriffs ...."). Twenty-six years ago, this Court confronted the question of whether a sheriff could, even in the absence of statutory authority, arrest an individual who has committed a breach of the peace. See Leet , 641 A.2d at 300. Though the majority opinion failed to note the aforementioned constitutional provision, the Court, after reviewing the history of the sheriff at common law, simply declared that "[u]nless the sheriff's common law power to make warrantless arrests for breaches of the peace committed in his presence has been abrogated, it is clear that a sheriff (and his deputies) may make arrests for motor vehicle violations which amount to breaches of the peace committed in their presence," as long as the sheriff (or her deputies) "complete[d] the same type of training that is required of police officers throughout the Commonwealth." Id. at 303. And that was that.
Leet was flawed at the time it was decided, and the past twenty-six years have underscored these flaws, revealing that Leet ’s framework is untenable. It is time to overrule that precedent, and it is time for our General Assembly to define the duties of our Commonwealth's sheriffs.
A
As an initial matter, the Majority concludes that overruling Leet "is beyond the scope of the question presently before this Court." Maj. Op. at 245 n.4. The question on which we granted allocatur was limited to determining whether "an expired vehicle registration tag constitutes a ‘breach of the peace.’ " Commonwealth v. Copenhaver , ––– Pa. ––––, 215 A.3d 970 (2019) (per curiam ). However, in his Pa.R.A.P. 1925(b) statement, Copenhaver claimed that "Deputy Beall lacked any authority to detain [Copenhaver] for an expired registration tag in the absence of express legislative authority," without referencing whether the expired registration amounted to a breach of the peace. Copenhaver's Concise Statement, 11/16/2017, at ¶ 1. Citing then-Chief Justice Nix's dissent in Leet , Copenhaver also seemed to argue in his Superior Court brief, see Copenhaver's Brief, 383 MDA 2018, at 12–14, his allocatur petition, see Petition for Allowance of Appeal, 13 MAL 2019, at 9–12, and his Supreme Court brief, see Copenhaver's Brief, 48 MAP 2019, at 10–13, that sheriffs should not have the authority to arrest for any Motor Vehicle Code violations.
It is true that " ‘we are limited to the issues as framed in the petition for allowance of appeal.’ " Maj. Op. at 245 n.4 (quoting Commonwealth v. Metz , 534 Pa. 341, 633 A.2d 125, 127 n.3 (1993) ). However, as we have previously stated:
[W]e cannot look the other way simply because to abrogate prior precedent in the process of resolving this case is more than Petitioners have asked us to do. We would encourage the perpetuation of poorly reasoned precedent were we to permit ourselves to revisit the soundness of our case law only when expressly invited to do so based upon a given party's tactical decision of whether to attack adverse case law frontally (always a gamble against long odds) or to attempt more finely to distinguish the adverse decisions. The scope of our review is not so circumscribed.
William Penn Sch. Dist. v. Pa. Dep't of Educ. , 642 Pa. 236, 170 A.3d 414, 446 n.49 (2017). In this instance, both the allocatur petition and Copenhaver's brief argued that Leet should be overturned, as the Majority acknowledges. See Maj. Op. at 245 n.4 ("[Copenhaver] also argues that deputy sheriffs should not be authorized to effectuate traffic stops based on supposed common law powers."). We can and should reach the issue of whether Leet should be overturned notwithstanding Copenhaver's "tactical decision" not to include Leet in the language of the allocatur question.
B
The Framers of our Commonwealth's and our Nation's Constitutions had a conception of law somewhat different from our own. For them, the common law simply existed, waiting to be revealed by the "brooding omnipresence in the sky." S. Pac. Co. v. Jensen , 244 U.S. 205, 222, 37 S.Ct. 524, 61 L.Ed. 1086 (1917) (Holmes, J., dissenting). But our Framers’ beliefs about "the source of natural justice" made way over time for the view that " ‘law in the sense in which courts speak of it today does not exist without some definite authority behind it,’ " Erie R.R. CO. v. Tompkins , 304 U.S. 64, 79, 58 S.Ct. 817, 82 L.Ed. 1188 (1938) (quoting Black & White Taxicab & Transfer Co. v. Brown & Yellow Taxicab & Transfer Co. , 276 U.S. 518, 533, 48 S.Ct. 404, 72 L.Ed. 681 (1928) (Holmes, J., dissenting)). Today's conception of common law "is rooted in a positivist mindset utterly foreign to the American common-law tradition of the late 18th century." Sosa v. Alvarez-Machain 542 U.S. 692, 745, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004) (Scalia, J., concurring in part and concurring in the judgment).
See Anthony J. Sebok, Misunderstanding Positivism , 93 Mich. L. Rev. 2054, 2062 (1995).
The brooding-omnipresence-versus-positivist-authority debate played out most prominently on the civil side of our common law jurisprudence, especially in the area of general common law and federal diversity jurisdiction. See Erie , 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188. However, when our Commonwealth adopted English common law in 1777, see Commonwealth v. Ladd , 402 Pa. 164, 166 A.2d 501, 502–03 (1960), we not only adopted the common law of torts and contracts and property, but the common law of crime as well, see, e.g. , Respublica v. Newell , 3 Yeates 407, 414–16 (Pa. 1802) (applying the common law of perjury in a criminal case). Into the twentieth century, we continued to adjudicate criminal common law. See Commonwealth v. Mochan , 177 Pa.Super. 454, 110 A.2d 788, 790 (1955) ("In a number of States[,] and especially in the common law State of Pennsylvania[,] the common law of England, as to crimes, is in force except in so far [sic ] as it has been abrogated by statute."). However, in 1972, in line with the modern positivist trend, our General Assembly codified the criminal laws of this Commonwealth. In doing so, the General Assembly decreed: "Common law crimes abolished.--No conduct constitutes a crime unless it is a crime under [Title 18 of Pennsylvania's Consolidated Statutes] or another statute of this Commonwealth." Act of 1972, Pub. L. 1482, No. 334, § 107(b) (effective June 6, 1973) (codified as 18 Pa.C.S. § 107(b) ). Thus, the Commonwealth can no longer bring common law charges against defendants. Rather, Pennsylvania prosecutors must look to the "definite authority," Erie , 304 U.S. at 79, 58 S.Ct. 817 (citation and quotation marks omitted), of a statute duly enacted by our General Assembly.
C
In enacting the criminal code, the General Assembly elected not to codify the common law crime of "breach of the peace." See Commonwealth's Brief at 13 ("As [Copenhaver] aptly highlights, the Common Law crime of Breach of the Peace is no longer viable following the adoption of the Crimes Code."). Additionally, neither the criminal code nor the Motor Vehicle Code ("MVC") empowers sheriffs to enforce their provisions. This is not because the General Assembly is incapable of identifying in legislation which of our law enforcement personnel can enforce our statutes. Police officers have the authority to make warrantless arrests for violations of the criminal code, see 42 Pa.C.S. § 8902, and municipal police officers are specifically empowered to enforce that same code, see 42 Pa.C.S. §§ 8952 – 8953. State police officers and "[o]ther police officers" are empowered to make arrests for violations of the MVC. 75 Pa.C.S. § 6304.
Nor is the General Assembly incapable of defining the sheriff's duties. On the contrary. By my count, the word "sheriff" appears in over 400 statutory provisions. Most importantly, "sheriffs ... shall perform all those duties authorized or imposed on them by statute." 13 P.S. § 40 ; see also 42 Pa.C.S. § 2921 ("The sheriff, either personally or by deputy, shall serve process and execute orders directed to him pursuant to law."). In line with this generic grant of authority, the General Assembly has empowered our Commonwealth's sheriffs to perform all sorts of specific tasks. A sheriff can make an arrest for the violation of a protection from abuse order committed in the sheriff's presence. 23 Pa.C.S. § 6113(a). A sheriff can apprehend an individual who has been charged with an offense under the Uniform Code of Military Justice, pursuant to a court-martial's warrant. 51 Pa.C.S. § 5201(e). A sheriff can investigate disputes about the custody of animals, 3 Pa.C.S. § 2315, search for gunpowder in homes within the City of Philadelphia, 53 P.S. § 16567, serve process on islands between Pennsylvania and New Jersey, 71 P.S. § 1815, remove stocks of illegal fireworks, 72 P.S. § 9415, and issue licenses for dealers of precious metals, 73 P.S. § 1932. Even within the confines of the MVC, a sheriff can direct that a vehicle be impounded for nonpayment of fines, 75 Pa.C.S. § 6309, and conduct public sales for impounded vehicles, 75 Pa.C.S. § 6310(b). Also within the MVC, drivers are ordered to obey a sheriff who is directing traffic, 75 Pa.C.S. § 3102, and a sheriff's vehicle is permitted to have flashing lights, 75 Pa.C.S. § 4571. And yet, with all of these specific provisions giving various duties to sheriffs, including within the MVC itself, never did the General Assembly decree that sheriffs should have the general authority to enforce the laws of our Commonwealth, criminal or motor vehicle in nature.
In contrast to Pennsylvania, where sheriffs rely for their general arrest power only upon common law authority developed and pronounced by this Court, other states specifically empower their sheriffs through statute to make arrests, including for breaches of the peace. See, e.g. , Ariz. Rev. Stat. Ann. § 11-441(A)(2) ("The sheriff shall ... [a]rrest and take before the nearest magistrate for examination all persons who attempt to commit or have committed a public offense."); Cal. Gov't Code § 26601 ("The sheriff shall arrest and take before the nearest magistrate for examination all persons who attempt to commit or who have committed a public offense."); Fla. Stat. § 30.15(1)(g) ("Sheriffs ... shall ... [a]pprehend, without warrant, any person disturbing the peace ...."); Ind. Code § 36-2-13-5 ("The sheriff shall (1) arrest without process persons who commit an offense within the sheriff's view, take them before a court of the county having jurisdiction, and detain them in custody until the cause of the arrest has been investigated; (2) suppress breaches of the peace, calling the power of the county to the sheriff's aid if necessary ...."); Mont. Code Ann. 7-32-2121 ("The sheriff shall ... arrest and take before the nearest magistrate for examination all persons who attempt to commit or have committed a public offense ...."); Ohio Rev. Code Ann. § 311.07(A) ("Each sheriff shall preserve the public peace and cause all persons guilty of any breach of the peace, within the sheriff's knowledge or view, to enter into recognizance with sureties to keep the peace and to appear at the succeeding term of the court of common pleas, and the sheriff shall commit such persons to jail in case they refuse to do so."). I can imagine nothing disabling our own General Assembly from passing similar laws if it chooses to do so.
As a matter of law, this lack of statutory authorization should have been the end of this debate. Then-Chief Justice Nix, the sole dissenter in Leet , thought it was. Citing what is now codified as 13 P.S. § 40 ("[S]heriffs ... shall perform all those duties authorized or imposed on them by statute."), then-Chief Justice Nix wrote, simply, that "[t]he General Assembly has not conferred upon the office of sheriff or his deputies the authorization to make warrantless arrests for violations of the law. In contrast, such authority has been granted to other law enforcement officials[, and t]here is no such authority [for the sheriff] for any arrest under the specific chapter governing the rules of the road," i.e. , the MVC. Leet , 641 A.2d at 304 (Nix, C.J., dissenting). Thus, "because the legislature ha[d] not expressly granted to sheriffs" the power to make arrests for MVC violations that amounted to breaches of the peace, then-Chief Justice Nix was "constrained to conclude that such a decision is not within the province of this Court's authority" and that "the common law powers of the sheriff ha[d] been abrogated by statute." Id. at 305 (Nix, C.J., dissenting). Notwithstanding its unquestionable power to do so, the General Assembly has chosen not to alter our statutory framework with regard to sheriffs since Chief Justice Nix dissented in 1994. The dissent was convincing then, and it is convincing now. It should be the law.
D
While Leet was incorrect when it was decided, the experience of this Court since then in attempting to apply that precedent has shown even more clearly that we should overrule the decision. In 2007, Justice Baer, writing for the Court, declared that "[f]or the fifth time in the past fifteen years, this Court is called upon to clarify the breadth of county sheriffs’ authority to investigate, cite, and arrest those who break the law." Commonwealth v. Dobbins , 594 Pa. 71, 934 A.2d 1170, 1171 (2007) (footnote omitted). Since 2007, we have twice again been called upon to clarify our county sheriffs’ authority. See Maj. Op. at 243; Marconi , 64 A.3d 1036.
This is not the first criticism of Leet since it was decided. See Marconi , 64 A.3d at 1041 (calling Leet "not a fully-reasoned" decision); id. at 1041 n.5 (writing that Leet "offer[s] little account for the derivation of [the difference between English sheriffs and American sheriffs] or developmental and historical nuances associated with the evolving role of peace officers"); but see id. at 1042 n.7 ("We have acknowledged that Leet could have been a better developed opinion ...; however, there is a salutary aspect in that some of the deficiencies are offsetting in relation to others.").
With one exception, see Commonwealth v. Hock , 556 Pa. 409, 728 A.2d 943 (1999) (recognizing that "fighting words" can be prohibited, notwithstanding the First Amendment, if those words constitute a breach of the peace), the only time this Court ever even gives content to the term "breach of the peace" is when we adjudicate our sheriffs’ (or constables’) authority. See Marconi , 64 A.3d 1036 ; Dobbins , 934 A.2d 1170 ; Kopko v. Miller , 586 Pa. 170, 892 A.2d 766 (2006) ; Lockridge , 810 A.2d 1191 ; Commonwealth v. Roose , 551 Pa. 410, 710 A.2d 1129 (1998) ; Leet , 641 A.2d 299. The Majority's own definition of breach of the peace is compelled to rely upon a trial court decision from 1930, a law review article citing early American history, and decisions from sister states, the most recent of which is from 1991. See Maj. Op. at 245.
The Majority strives mightily to create a more precise meaning of breach of the peace, possibly in the forlorn hope that our lower courts will be able to adjudicate future cases without our recurrent intervention. Past experience of this Court suggests that this exercise will prove fruitless. The six cases preceding Copenhaver's appeal have failed to provide authoritative guidance. See Marconi , 64 A.3d at 1041 n.5 (" Leet ’s loose incorporation of undefined peacekeeping powers as the rational litmus for determining sheriffs’ current authority under the Vehicle Code has yielded substantial uncertainties in the jurisprudence."); cf. Atwater v. City of Lago Vista , 532 U.S. 318, 327 n.2, 121 S.Ct. 1536, 149 L.Ed.2d 549 (2001) (avoiding having to define breach of the peace, but writing that "[t]he term apparently meant very different things in different common-law contexts" and "[e]ven when used to describe common-law arrest authority, the term's precise import is not altogether clear"). That we continually have felt bound to grant allocatur on this issue over the past quarter century is a testament to the impossibility of defining the term with precision. The General Assembly clearly is better-suited to such a task.
Our continued failure to squarely define breach of the peace does no favor to either sheriffs or average residents of (and visitors to) Pennsylvania. When a sheriff is traveling in an official vehicle and witnesses an individual disobeying some provision of the MVC, that sheriff will have to decide, on a moment's notice, whether the observed action is a breach of the peace. While we rely upon our law enforcement officers to know the law and their duties in enforcing the law, requiring a sheriff to interpret when a particular action is a breach of a peace (and to know simultaneously whether the sheriff has the necessary training, as judicially-decreed in Leet ) seems beyond the pale, considering that even the judges and justices of this Commonwealth cannot come to an agreement.
Perhaps even more troubling is the lack of notice given to those Pennsylvanians who may violate the MVC. The average resident, who likely has less legal training than a law enforcement officer, will have no idea whether driving over an "unprotected hose of a fire department," 75 Pa.C.S. § 3708, parking forty-nine feet from a railroad crossing, 75 Pa.C.S. § 3353(a)(3)(i), or crossing a highway in a golf cart at a forty-five degree angle, 75 Pa.C.S. § 77A01(b)(1), constitutes a breach of the peace, for which a sheriff passing by could make an arrest. Even if such an action does not constitute a breach of the peace, the sheriff, as an arresting officer who "has probable cause to believe that [the] individual has committed even a very minor criminal offense in his presence," can arrest that individual without violating the Fourth Amendment. Atwater , 532 U.S. at 354, 121 S.Ct. 1536. And while the arrestee, under the Majority's approach, may hope later to have the fruits of that arrest suppressed and the charges thrown out, the arrestee will nonetheless "join the 65 million Americans with an arrest record and experience the ‘civil death’ of discrimination by employers, landlords, and whoever else conducts a background check." Utah v. Strieff , ––– U.S. ––––, 136 S. Ct. 2056, 2070, 195 L.Ed.2d 400 (2016) (Sotomayor, J., dissenting).
A sheriff using these common law powers of arrest granted by this Court has enormous discretion. Because law enforcement resources are not unlimited, discretion is a necessary element in our criminal justice system. But as the law stands, sheriffs have discretion not only in determining who may be arrested and for what crimes they may be arrested, but also in determining (at least until court review following a suppression motion) whether sheriffs themselves have the authority to make the arrest in the first place.
To make matters even worse, the Leet Court granted this authority after reviewing the history of the sheriff's power at common law, tracing that history back to England before the Norman Conquest of 1066. See Leet , 641 A.2d at 301–03. Reading Leet , one could be forgiven for thinking that the distinctly "powerful" role of the sheriff in law enforcement in medieval England, id. at 301, is the reason that Pennsylvania sheriffs today have the ability to make arrests for MVC violations that constitute breaches of the peace. Nonetheless, in Kopko , this Court insisted that "the power of Sheriffs to arrest for crimes committed in their presence is no different from that of a private citizen." Kopko , 892 A.2d at 774. To be sure, older precedent has recognized that private citizens retain a common law arrest power. See Commonwealth v. Chermansky 430 Pa. 170, 242 A.2d 237 (1968) ; see also Commonwealth v. Corley , 316 Pa.Super. 327, 462 A.2d 1374, 1379 (1983) ("[W]e hold that a citizen's arrest can be made for a breach of the peace that is personally observed by the arrestor."); aff'd on other grounds , 507 Pa. 540, 491 A.2d 829, 834 (1985) ("[W]e need not address the propriety of the Superior Court's holding that a citizen may arrest for a misdemeanor breach of the peace committed in his presence."). In an appropriate case, this quaint doctrine may be ripe for reexamination. Cf. Carol S. Steiker, Second Thoughts About First Principles , 107 HARV. L. REV. 820, 830–33 (1994) (noting that because professional police forces did not exist at the Founding, "ordinary citizens" served in law enforcement roles). For present purposes, suffice it is to say that there is in practice a fundamental difference between a citizen's arrest and a sheriff's arrest, even if the two seizures rely theoretically upon the same legal source.
See also Leet , 641 A.2d at 303 ("Indeed, such powers are so widely known and so universally recognized that it is hardly necessary to cite authority for the proposition. To make the point, how few children would question that the infamous Sheriff of Nottingham had at least the authority to arrest Robin Hood.").
Let us imagine that an average driver failed to yield to an emergency vehicle leaving a garage. 75 Pa.C.S. § 3346. Another individual notices this action, pulls up next to the driver, and tells the driver that he or she is under arrest. Under Leet and Kopko , if failing to yield to an emergency vehicle exiting a garage were to constitute a breach of the peace, this individual (though a private citizen) legally could arrest the driver. The driver would likely laugh (or fight) at this notion, and would no doubt refuse to submit to such an "arrest."
Pursuant to Leet and its troubled progeny, when a sheriff makes an arrest for a MVC violation constituting a breach of the peace, the reaction from the driver should, in theory, be the same. But this is almost farcical. Where the sheriff is making the arrest, does anyone really believe that a rational driver would refuse to submit? Any answer but "no" is a legal fiction. "[N]o reasonable person[ ] would feel free to leave under such circumstances." Commonwealth v. Cost , ––– Pa. ––––, 224 A.3d 641, 657–58 (2020) (Wecht, J., concurring). A sheriff has a state-issued vehicle, a badge, a uniform, and a firearm. In other words, the sheriff is imbued with all the power of the state, a power that law-abiding citizens are bound to respect. And yet our law stubbornly pretends, per Kopko , that the sheriff is making an arrest legally indistinct from one that could be made by any private citizen. This is of course a sheer absurdity. Such dissonance only further epitomizes the underlying weakness of Leet and its progeny.
Cf. Commonwealth v. Price , 543 Pa. 403, 672 A.2d 280, 284 (1996) (rejecting that a citizen's arrest had occurred when an FBI agent attempted to arrest an individual for driving under the influence because it was "convincingly clear that" the agent "displayed conduct which can fairly be attributable to the state") (quotation marks omitted).
E
Leet was incorrect when it was decided, and it should be overruled. Since Leet , this Court's inability to give guidance to our lower courts, to our sheriffs, and to our residents has only further eroded the efficacy of that decision. This Court's fitful, episodic case-by-case common law approach to defining breach of the peace—an approach the General Assembly already had rejected when it abolished common law crimes—can never prove equal to the task of providing the necessary guidance. That is why we elect lawmakers.
I do not express an opinion on the ultimate question of whether it would be beneficial to have our Commonwealth's sheriffs enforce our criminal or motor vehicle laws. That is a policy question beyond my role as a jurist. To supply the answer to this question, we should look to that branch of government whose duty it is to define crimes, and whose processes allow for comprehensive regimes regarding enforcement of our laws: the General Assembly. The General Assembly could pass a statute empowering sheriffs to enforce specific provisions of the MVC or the criminal code, or the entirety of those codes. The General Assembly could define the exact training sheriffs must possess in order to enforce our criminal or motor vehicle laws. We should stop beseeching the "brooding omnipresence," Jensen , 244 U.S. at 222, 37 S.Ct. 524 (Holmes, J., dissenting), as we labor serially to define our sheriffs’ role. We should rely instead upon that tried and true method for crafting the laws of our Commonwealth: bicameralism and presentment. Such a process not only conforms to the mandates of our Constitution but also would ensure legitimacy, precision, and finality in defining the important role that sheriffs are to play in our justice system.
In Leet , we noted that police officers "are required by statute to undergo formal training prior to enforcing the law." Leet , 641 A.2d at 303 (citing 42 Pa.C.S. § 8951 et seq. ). "We deem[ed] this requirement to apply equally to sheriffs who enforce motor vehicle laws." Id. ; see also Marconi , 64 A.3d at 1046 (McCaffery, J., dissenting) ("[W]e also emphasized in Leet the need for appropriate training for sheriffs who are engaged in such law enforcement activities."). We have struggled to determine what constitutes appropriate training. See Pa., Dep't of Transp., Bureau of Driver Licensing v. Kline , 559 Pa. 646, 741 A.2d 1281, 1285–86 (1999) (finding "that training other than Act 120 certification may be sufficient for purposes of Vehicle Code enforcement under our holding in Leet ," but not declaring what exact training is required). The General Assembly has shown itself capable of creating comprehensive training requirements for sheriffs and their deputies. See Sheriff and Deputy Sheriff Education and Training Act, 71 P.S. §§ 2101 –09. The legislature also could create necessary requirements if sheriffs were statutorily empowered to enforce the MVC.
Because I would resolve the dispute about the stipulated facts in this Court, I dissent from the Majority's decision to remand the case to the Superior Court. And while I agree that an expired registration tag does not amount to a breach of the peace, I would find that sheriffs do not possess the authority to stop drivers who violate the Motor Vehicle Code, absent a directive from the General Assembly.