[1995/oagheade.htm]

OAG 95-30

July 24, 1995

Subject: Scope of state criminal law enforcement authority of U. S. Fish and Wildlife Special Agents and Refuge Officers, and of Wildlife (Conservation) Officers of the Kentucky Department of Fish and Wildlife Resources.

Written by: Gerard Gerhard

Requested by: George M. Elkins, Senior Resident Agent, U. S. Fish and Wildlife Service

Syllabus: Special agents and refuge officers of the U. S. Fish and Wildlife Service are not "peace officers" within the meaning of Kentucky law for purposes of making arrests or issuing citations for violations of Kentucky law. Such officers can make a "citizen's arrest" where such is made in strict conformity with Kentucky law. Conservation officers of the Kentucky Department of Fish and Wildlife have the the status of "peace officers" for purposes of enforcing non-wildlife crimes under Kentucky law.

OAGs cited: 90-3, 92-140

Statutes construed: KRS 61.365; 150.090(1); 189A.010; 431.005 (1), (2), (3), and (4); 431.015; 446.010(24)

OPINION OF THE ATTORNEY GENERAL

The following questions, in substance, have been presented:

1. May Special Agents and Refuge Officers of the U. S. Fish and Wildlife Service in Kentucky take enforcement action concerning state offenses (assault, driving under the influence, escaped prisoners, possession of narcotics, robbery, stolen vehicles), either as "peace officers" under Kentucky law, or under "citizen's arrest" authority?

2. Do Wildlife Officers of the Kentucky Department of Fish and Wildlife Resources have "peace officer" status for purposes of enforcing non-wildlife crimes?

In our view, based upon the reasoning set forth below, agents and refuge officers of the U. S. Fish and Wildlife Service are not "peace officers" within the meaning of Kentucky law so as to be authorized to make arrests or issue citations as "peace officers" for violations of state laws. On the other hand, agents and refuge officers of the Service may make a "citizen's arrest" where there is strict conformity with the Kentucky statute authorizing such an arrest. Wildlife officers (Conservation Officers) of the Kentucky Department of Fish and Wildlife Resources have the status of "peace officers" under Kentucky law, and thus have the authority to enforce non-wildlife crimes under Kentucky law in accordance with the statutes of this state.

I. General Authority for Enforcement of State Criminal Law Provisions

Authority to take "enforcement action," via arrest or citation of local or state criminal law provisions in Kentucky, is provided for by statute.

An arrest may be made by a peace officer as provided in KRS 431.005(1) through (3). An arrest may be made by a private person under the conditions described in KRS 431.005(4). A peace officer may issue a citation instead of making an arrest for a misdemeanor, in accordance with the terms of KRS 431.015.

II. U. S. Fish and Wildlife Service Special Agents

and Refuge Officers Do Not Have Status as

Kentucky "Peace Officers"

"Peace officer," within the meaning of Kentucky law, is generally defined in KRS 446.010, which provides, in part pertinent here:

As used in the statute laws of this state, unless the context requires otherwise:

* * *

(24) 'Peace Officer' includes sheriffs, constables, coroners, jailers, metropolitan and urban-county government correctional officers, marshals, policemen, and other persons with similar authority to make arrests[.]

(Emphasis added.)

At the same time that KRS 446.010(24) provides a "general definition" of the phrase "peace officer," KRS 61.365 provides:

The following persons who are employed by the federal government as law enforcement or investigative officers who have the power of arrest and who are residents of the Commonwealth of Kentucky shall be deemed peace officers and shall have the same powers and duties of any other peace officer in the Commonwealth, except that they shall not be required to serve process unless permitted to do so by their respective agencies:

(1) Federal Bureau of Investigation special agents;

(2) United States Secret Service special agents;

(3) United States Marshal's service deputies;

(4) Drug Enforcement Administration special agents;

(5) Bureau of Alcohol, Tobacco, and Fire- arms special agents;

(6) United States Forest Service special agents and law enforcement officers.

It will be noticed that special agents and refuge officers of the U. S. Fish and Wildlife Service are not among the federal officers designated as peace officers by KRS 61.365.

In Smith v. Wedding, Ky., 303 S.W.2d 322, 323 (1957), the Court indicated:

It is a primary rule of statutory construction that the enumeration of particular things excludes the idea of something else not mentioned. Bloemer v. Turner, 281 Ky. 832, 137 S.W.2d 387.

In our view, the principle articulated in Smith governs evaluation of the status of officers and agents of the U. S. Fish and Wildlife Service under Kentucky law. Since such agents are not listed among the particular federal authorities designated as peace officers under Kentucky law (KRS 61.365), they do not have such status for the purpose of making an arrest or issuing a citation for violation of Kentucky law.

For the same reason, officers or agents of the U. S. Fish and Wildlife Service cannot be considered as "peace officers" on the basis of being among "others with similar authority to make arrests" (KRS 446.010(24) (above)). It might also be noted that if officers or agents of the U. S. Fish and Wildlife Service were deemed peace officers as "other persons with similar authority to make arrests" as provided in KRS 446.010(24), there would be no need for KRS 61.365. For analogous reasoning, see United States v. Viale, 312 F.2d 595, 599 (1963).

III.

Federal Fish and Wildlife Officers May Make a "Citizen's Arrest" Under Kentucky Law

KRS 431.005(4) is the Kentucky Statute providing for the making of an arrest by a "private person." Such action is commonly known as a "citizen's arrest." The statute provides:

A private person may make an arrest when a felony has been committed in fact and he has probable cause to believe that the person being arrested has committed it.

The question of whether a federal officer (as for example, an officer or agent of the U. S. Fish and Wildlife Service) may make an arrest in Kentucky, in such officer's capacity as a private person, for an alleged violation of Kentucky law, apparently has not been addressed by the courts in this state.

In State v. Goldberg, 540 P.2d 674 (1975), the Supreme Court of Arizona held that federal agents of the Fish and Wildlife Service had the power to make an arrest for violation of a state law making it a felony to possess marijuana for sale. The Court indicated:

Although while enforcing the federal fish and wildlife laws the federal statutes must be strictly adhered to, Aiuppa v. United States, 338 F. 2d 146 (10th Cir. 1964), federal agents still have the power to make arrests for violations of state laws as private citizens. It was held that federal postal agents with limited arrest authority could make an arrest under a state's private citizen arrest statute. United States v. DeCatur, 430 F.2d 365 (9th Cir. 1970; see also, Wion v. United States, 325 F.2d 420 (10th Cir. 1963).

A.R.S. � 13-1404 provides:

'A private person may make an arrest:

* * * * * *

2. When a felony has been in fact committed and he has reasonable ground to believe that the person to be arrested has committed it.'

Id., 676.

Thus in Arizona, under a state "citizen's arrest" provision with language substantially the same as that in Kentucky's statute (KRS 431.005(4)) (above), federal fish and wildlife agents were found to have "citizen's arrest" authority to make arrests for violations of state laws.

In United States v. Montos, 421 F.2d 215 (1970), cert. denied, 397 U.S. 1022, 25 L.Ed.2d 532, 90 S.Ct. 1262 (1970), the United States Court of Appeals for the Fifth Circuit upheld an arrest by postal inspectors in Florida, observing with regard to the defendant:

His arrest was illegal . . . unless it constituted a valid citizen's arrest under Florida Law. United States v. Chapman, 5 Cir., 1969, 420 F.2d 925; Alexander v. United States, 5 Cir., 1968, 390 F.2d 101. See also United States v. Di Re, 332 U.S. 581, 68 S.Ct. 222, 92 L.Ed. 210 (1948).

Id., 224.

We see no reason why Kentucky law should differ from the views in Goldberg, and Montos, that a federal agent has the same authority as a citizen to make a citizen's arrest under a state statute authorizing such an arrest under statutorily prescribed circumstances. Why would it be said that a citizen who is employed as a federal law enforcement agent, who has authority and presumably training to make an arrest under federal law, should have less authority than a non-federal agent citizen to make an arrest that is authorized by statute? As former Kentucky Chief Justice John Palmore wrote in Cantrell v. Kentucky Unemployment Insurance Commission, Ky., 450 S.W.2d 235, 237 (1970): "When all else is said and done, common sense must not be a stranger in the house of the law."

Careful attention should be paid to the fact that a federal agent who makes a "citizen's arrest" may lawfully make such an arrest only where there is strict conformity with the state "citizen's arrest" statute under which the arrest is to be made. See United States v. Di Re, 332 U.S. 581, 68 S.Ct. 222, 92 L.Ed. 210 (1948), and see, Alexander v. United States, 390 F.2d 101, 106-108 (1968), and, United States v. Moderacki, 280 F.Supp. 633, 637-638 (1968).

IV. Kentucky Conservation Officers, Subject to Particulars Noted, Have "Peace Officer" Status for Purposes of Enforcing Non-Wildlife Crimes

For purposes of this opinion, "Wildlife Officers of the Kentucky Department of Fish and Wildlife Resources" are "conservation officers" whose "peace officer" powers are provided for by KRS 150.090(1), which states:

Conservation officers appointed by the commissioner shall have full powers as peace officers for the enforcement of all of the laws of the Commonwealth, except that they shall not enforce laws other than this chapter and the administrative regulations issued thereunder or to serve process unless so directed by the commissioner in life threatening situations or when assistance is requested by another law enforcement agency.

(Emphasis added.)

In Mercer v. Com., Ky.App., 880 S.W.2d 899 (1994), discretionary review denied, Aug. 24, 1994, citing Opinion of the Attorney General (OAG) 90-3, the Kentucky Court of Appeals, affirmed a conviction for driving under the influence arising from a stop and arrest by an officer of the Kentucky Department of Fish and Wildlife Resources. The Court indicated, in part pertinent here:

In 1989, the Department of Fish and Wildlife Resources, seeking a clarification of their policing powers, requested the Attorney General to answer the following questions:

1) Can the Commissioner of Fish and Wild-life issue a comprehensive directive authorizing Conservation Officers to exercise full powers as peace officers to enforce all laws of the Commonwealth in life threatening situations? (Who defines life threatening situation as it pertains to KRS 150.090(1)?)

2) Can another law enforcement agency make a comprehensive request to the Commissioner of Fish and Wildlife for Conservation Officers to assist them with full powers as peace officers to enforce all laws of the Commonwealth?

The Answer to these questions is contained in an opinion issued in January 1990, OAG 90-3, in which the Attorney General reasoned that the legislature had expanded the arrest power of the Fish and Wildlife Officers. His next finding was that case-by-case requests would be impractical. Hence, he concluded that '[T]he only answer that can be given to both questions here put to this officer is: yes . . . .' The Attorney General, through his opinion, approved comprehensive requests from law enforcement agencies for the assistance of Conservation Officers in the enforcement of all laws of the Commonwealth.

Thereafter in July 1990, Commissioner Michael Troop of the Kentucky State Police requested Fish and Wildlife Officers to enforce all criminal laws of the Commonwealth. The Department of Natural Resources also requested the assistance of Fish and Wildlife officers at the same time. As a result, the Department of Fish and Wildlife developed a policy in November 1992 which ordered its officers to arrest drunk drivers when they present a substantial risk of imminent danger to themselves or others, when they observe criminal offenses in which an officer or the public is in danger, or in any instance in which an officer feels action is needed in their sound judgment.

* * *

It appears to this Court that there is no ambiguity in the wording of KRS 150.090(1) and statutes are to be construed according to the plain meaning of the words contained therein. See Reda Pump Co., a Div. of TRW, Inc. v. Finck, Ky., 713 S.W.2d 818, 820 (1986). Since the Kentucky State Police requested the assistance of the Conservation Officers in the en- forcement of all criminal laws of the Commonwealth, and the Commissioner issued specific regulations for the officers to follow, as were done in the case sub judice, we believe the Conservation Officer had the authority to stop and arrest appellant for DUI.

Although Mercer specifically determined only the status of a Kentucky Conservation Officer as a "peace officer" in relation to a stop and arrest for driving under the influence (DUI) (KRS 189A.010), in our view the overall discussion and reasoning of the Court in the case indicates that Kentucky Conservation Officers are "peace officers" generally, and thus have jurisdiction to enforce all the criminal laws of the Commonwealth, where they act in conformity with Department of Fish and Wildlife policy in such regard, except where a specific statute would direct otherwise. See for example, OAG 92-140, addressing the "limited definition" of "peace officer" for purposes of a "domestic violence" related arrest pursuant to KRS 435.005(2). Mercer, above, OAG 90-3.

Copies of certain of the items cited above are enclosed.

CHRIS GORMAN

ATTORNEY GENERAL

Gerard R. Gerhard

Assistant Attorney General