OFFICIAL OPINION NO. 08-05, States Attorney's Special Investigative Agent

  
OFFICIAL OPINION NO. 08-05, States Attorney's Special Investigative Agent

STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

July 10, 2008

Vincent Owen
Roberts County Sheriff
412 3rd Avenue East
Sisseton, SD 57262

OFFICIAL OPINION NO. 08-05

States Attorney's Special Investigative Agent

Dear Sheriff Owen:

You have requested an opinion from this Office based upon the following factual situation:  

     FACTS:

The Roberts County State's Attorney sought to employ a special agent pursuant to SDCL 7-16-7.  The Roberts County Commission directed you to provide that agent with a patrol car that was currently being used by your office.  The Roberts County States Attorney stated that the agent's use of a patrol car is necessary to allow the agent to effectuate traffic stops and make arrests.   

Based upon the above facts, you have requested an answer to the following questions:

     QUESTIONS:

1.              Whether a special agent, employed by a states attorney pursuant to SDCL 7-16-7, has the authority to make arrests?  

2.              Whether the Sheriff's Office is required to give up a patrol vehicle so the Commission may provide it to the States Attorney for use by the special agent?

IN RE QUESTION 1:

As a general principle, every person in the State of South Dakota has been granted the power to make citizen arrests.  SDCL 23A-3-3.  The citizen arrest power is not limited by virtue of any official position held by an individual.  Any additional law enforcement powers that may be granted to an individual are limited to those powers specifically conferred by statute.  AGO 88-186; AGR 1941-42, p. 109.  

SDCL 7-16-7 states in pertinent part:  

The board of county commissioners may by resolution recorded in their minutes authorize the states attorney to employ one or more special agents either continuously or temporarily to serve upon authorization of the attorney general or his designee whose duty it shall be to assist the states attorney in the investigation of crimes.  The states attorney shall inform the attorney general or his designee when special agents are employed or terminated.  A special agent shall be a certified law enforcement officer and shall be under the control and direction of the state’s attorney. . . .

The purpose of statutory construction is to ascertain the intent of a law from a review of the language expressed in the statute.  Martinmaas v. Engleman, 2000 S.D. 85, ¶ 49, 612 N.W.2d 600, 611.  "Words or phrases in a statute must be given their plain meaning and effect."  Id.  When the language used in a statute is unclear or ambiguous then a person should look beyond the express language to determine the Legislature's intent.  State v. Myrl & Roy's Paving, Inc., 2004 S.D. 98, ¶ 6, 686 N.W.2d 651, 654.  

SDCL 7-16-7 indicates that the only explicit duty a special agent has is to "assist the states attorney in the investigation of crimes." It is unclear, based upon the plain language of the statute, what official arrest power is conferred upon a states attorney special agent.  

The previous version of SDCL 7-16-7 granted a county commission the power to authorize a states attorney to employ special agents to act under the states attorney’s exclusive control and "when so acting [the agents] shall have the same power and authority now granted by law to peace officers."  SDC 1960 Supp. § 12.1305.  At that time peace officers were specified as "sheriffs, constables, marshals, chiefs of police, and policemen."  SDC 1960 Supp. § 34.1618.  By statute, peace officers were granted official authority to arrest. SDC 1960 Supp. §§ 34.1601, 34.1609.  

The prior language of the statute in question specifically granted special agents the official power to arrest.  In 1979 the Legislature amended the statute, and removed the clause that granted special agents the authority to act as peace officers.  1979 S.D. Sess. Laws ch. 44.  In making this change, it is my opinion that the Legislature evinced its intent that states attorney special agents were to no longer have the official authority of a law enforcement officer; including the power to arrest.  Based on this analysis, the answer to your first question is no.    

It should be noted that SDCL 7-16-7 requires that any states attorney special agent must be a certified law enforcement officer.  A law enforcement officer is defined as "any employee or officer of the state or any political subdivision thereof and who is responsible for the prevention and detection of crime and the enforcement of the criminal or highway traffic laws of the state." SDCL 23‑3‑27. Also, SDCL 23A-3-2 states that "[a] law enforcement officer may, without a warrant, arrest a person" that is committing, or has committed, a public offense.  The question naturally arises whether a special agent is thereby granted the official power to arrest by virtue of his or her designation as a law enforcement officer?  

The intent of a statute can be determined from the statute as a whole, as well as enactments relating to the same subject.  Martinmaas, 2000 S.D. 85, ¶ 49.  "But, in construing statutes together it is presumed that the legislature did not intend an absurd or unreasonable result."  Id.

In South Dakota each office individually tasked with law enforcement duties is specifically granted the power of arrest by statute.  County sheriffs are affirmatively tasked with keeping the peace in their county and apprehending all felons.  SDCL 7-12-1.  The agents of the Division of Criminal Investigation are given the same powers as a sheriff, constable, or police officer, and it "shall be [the agent’s] duty to act in all parts of the state in detection, apprehension, arrest, and prosecution of crimes."  SDCL 23‑3‑10.   Similarly, the South Dakota Highway Patrol "shall arrest for violations of law without a warrant."  SDCL 32‑3‑8.  Municipal police officers are specifically granted the power to pursue and arrest anyone guilty of a breach of the peace.  SDCL 9-29-19.  Conservation officers have the authority to arrest any person violating any law the officer is authorized to enforce.  SDCL 41-15-10.   

Reading SDCL 23-3-27 and 23A-3-2 in conjunction with the statutes discussed immediately above, it is my opinion that a law enforcement officer has the same arrest power as any ordinary citizen.  The overall statutory scheme relating to the authority of law enforcement officers, however, does not give enhanced authority to an officer simply by virtue of his having been "certified."  Law enforcement officers receive only the authority that can be statutorily conferred upon them by the office that employs them.  If the employing office has not been statutorily granted the authority to arrest, then that power can not be conferred upon an officer working for that office.  

For example, the Attorney General of South Dakota is not granted the power to arrest by statute or by constitutional provision.  The special agents of the Division of Criminal Investigation, simply by virtue of their employment by my office, would not thereby have the power to arrest beyond that held by an ordinary citizen.  The power and authority that D.C.I. special agents possess is, however, specifically granted to them by statute. The same is true for the various states attorneys of South Dakota; they have not been granted official arrest power by statute or constitutional provision.  Therefore, a states attorney special agent is not granted the authority to arrest.  

The reasoning of the South Dakota Supreme Court in State v. MacDonald, supports this position.  There, the Court noted that a municipal police officer has no official power to arrest beyond the territorial jurisdiction of his municipality.  260 N.W.2d 626, 627 (S.D. 1977).  The limits of an officer's jurisdiction are determined by the officer's position.  Municipal officers have jurisdiction only over their municipalities, sheriffs are granted jurisdiction only over their counties, and the agents of D.C.I. are granted statewide jurisdiction.  Lacking the official power to arrest, the Court held, an officer only holds the same arrest powers that are conferred on a private citizen.  Id.  

States attorney special agents at one time held the official power to arrest.  The Legislature, however, removed this authority.  Currently, a special agent is required to be a certified law enforcement officer.  That designation does not in and of itself grant the officer official arrest power.  Therefore, it is my opinion that a states attorney special agent may only investigate crimes; something a trained law enforcement officer is well equipped to do.  The special agent, however, does not have the power to effectuate anything other than a citizen's arrest.   

The answer to your first question is No.  

IN RE QUESTION 2

SDCL 7-12-12 states: 

Any county may, at the discretion of the board of county commissioners, furnish any motorcycle, automobile, truck or other vehicle, uniforms and other equipment to the sheriff or his deputies, or both, for law enforcement purposes only.

As stated above, "[w]ords or phrases in a statute must be given their plain meaning and effect."  Martinmaas, 2000 S.D. 85, ¶ 14.  According to the plain language of the statute, a county commission has the discretionary authority to provide vehicles and other equipment to the sheriff’s office.  It is my opinion that, under this discretionary authority, a county commission may also choose to no longer provide a patrol vehicle to the sheriff’s office.  Once that decision has been made, the county commission could designate the use of that vehicle for any purpose allowed by state statute.  

It should be noted that if the vehicle is provided by the County to an individual that is not employed by a law enforcement agency the vehicle would no longer meet the definition of an "authorized emergency vehicle."  SDCL 32‑14‑1(2).  The vehicle must then be modified to remove all law enforcement decals, emergency lights, and other emergency response equipment.  SDCL 32‑17‑9, 32‑17‑45, 32‑31‑2.  Also, the operator of the vehicle would not be allowed to exercise the privileges contained in SDCL ch. 32‑31 to disregard the traffic regulations of the State.  Further, the operator of the vehicle would not be allowed to access the state radio network unless authorized by the Sheriff or the Attorney General, and as such, any radio communication receiving sets would need to be removed from the vehicle.  SDCL 1‑13‑6, 23‑4‑3, 23‑4‑4.   

The answer to your second question is Yes, as qualified above.  

Respectfully submitted,

LAWRENCE E. LONG
ATTORNEY GENERAL

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