AGO 1957 No. 115 - Aug 27 1957
STATE PATROL ‑- POWERS ‑- ON COUNTY ROADS ‑- IN COUNTY PARKS ‑- IN CITIES
(1) Officers of the state patrol have the power and duty to enforce state laws having a uniform application to the general public throughout the state, whether within or without the corporate limits of any county or city, but this power does not authorize them to enforce matters exclusively of local concern, including violations of county and city ordinances.
(2) Officers of the state patrol may enforce the state motor vehicle code on county roads and in county parks, but are not authorized to enforce county and city ordinances of local origin and nature.
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August 27, 1957
Honorable Al Henry
State Senator, 16th District
White Salmon, Washington Cite as: AGO 57-58 No. 115
We acknowledge receipt of your request for an opinion on the following questions:
(1) What are the powers, authority and duties of the Washington state patrol?
(2) Do officers of the Washington state patrol have the authority to patrol highways maintained entirely by the county and to enforce the motor vehicle code thereon?
(3) In public parks under the supervision of the county, do the officers of the Washington state patrol have (a) the authority to police the roads within the parks, and (b) does their authority include the "inspection" of parked cars in [[Orig. Op. Page 2]] these parks to ascertain whether a crime has been or is being perpetrated therein?
(4) Do officers of the Washington state patrol have the authority to enforce city ordinances, within the corporate limits of a city?
We answer your questions as follows:
(1) The answer to your first question is contained in the analysis below and RCW 43.43.030 (§ 2, Chapter 25, Laws of 1933) and R.C.S. 6379 (§ 17, Chapter 108, Laws of 1921).
(3) (a) yes, (b) no
(1) The powers and duties of the state patrol are found in RCW 43.43.030, which was derived from § 2, chapter 25, Laws of 1933.
"The chief and the other officers of the Washington state patrol shall have and exercise all such powers and duties as are now vested in the chief and members of the highway patrol and the director of traffic, and in addition thereto shall have and exercise throughout the state, subject to the direction and control of the chief of the Washington state patrol, such police powers and duties as are vested in sheriffs and peace officers generally."
Our present state patrol was created to take over the functions of the original highway patrol. The original enactment (Rem. Comp. Stat. 6379, § 17, chapter 108, Laws of 1921) creating the highway police reads as follows:
"It shall be the duty of the director of efficiency to appoint a sufficient number of highway police who shall have the power of peace officers for the purpose of enforcing all motor vehicle laws, rules and regulations."
This section, it will be noted, authorized the exercise of the powers of peace [[Orig. Op. Page 3]] officers in the enforcement of the motor vehicle laws. It has never been specifically repealed but is incorporated by reference in chapter 25, Laws of 1933 (RCW 43.43.030, supra.) In addition to the original powers vested in the highway patrol, the state patrol is authorized, by the present statute, to exercise "throughout the state . . . such police powers and duties as are vested in sheriffs and peace officers generally." (Chapter 25, Laws of 1933,supra.)
This office had occasion to consider the present statute (RCW 43.43.030) in an opinion dated July 25, 1946, to the chief of the Washington state patrol (1946 AGO 918) interpreting the powers of the patrol to enforce certain provisions of the state law relating to aircraft. A copy of the opinion is enclosed for your information.
In that opinion we stated that if applied literally the statute above quoted "would give the state patrol jurisdiction in the enforcement of all penal laws of this state," and that such "a literal interpretation of that grant of authority would render the statute unconstitutional." The opinion states "that it is necessary to interpret the statute as granting such power only as is not in conflict with the pertinent provisions in the state constitution." (Article XI, § 5.) The opinion then states that
"By virtue of that constitutional provision, as interpreted by our supreme court, any statute which provides for appointive law enforcement officers (such as all members of the state patrol are) is unconstitutional if those officers (1) are county officers, or (2) exercise county functions. State ex rel. Johnston v. Melton (1937), 192 Wash. 379, 73 P. (2d) 1334;State ex rel. Lopas v. Shagren (1916), 91 Wash. 48, 157 Pac. 31."
The opinion reaches the conclusion that
"Accordingly, to paraphrase the language quoted above from theLopas case, the State Patrol has penal jurisdiction as to those matters that 'concern the general public or the state at large,' and not as to the 'matters exclusively of local concern of the particular county.' . . ."
Applying this test to the aeronautics statutes, the opinion concluded that the provisions requiring planes and pilots to be licensed, pilots to keep their licenses in their personal possession, and compliance to air traffic rules, were within the jurisdiction of the state patrol to enforce; while the provisions [[Orig. Op. Page 4]] governing the licensing of airports and the control of airport hazards were not.
The tests set out in the above mentioned opinion form the basis for our answer to your remaining questions. There is no question but that under the rule of the cases cited in that opinion, officers of the state patrol are state, and not county, officers. There only remains the consideration of the extent to which functions of the office concern the state at large or the general public.
(2) Your second question is answered in the affirmative because the provisions of the motor vehicle code (Title 46 RCW) apply alike to the general public in their use of the public highways throughout the state.
A "county road" (RCW 46.04.050) is merely the designation of one type of "public highway" (RCW 46.04.430), and the enforcement of the traffic laws (RCW 46.04) is based on violations occurring on public highways.
On the other hand, the enforcement of particular county ordinances enacted by the board of county commissioners on local or county roads which involve "matters exclusively of local concern of the particular county" would be outside the jurisdiction of officers of the state patrol.
(3) Your third question states two problems: (a) The authority to patrol in county parks, and (b) the power to "inspect" cars to ascertain whether a crime has been or is being perpetrated therein.
We have indicated in our answer to your second question, supra, that the enforcement of state laws which concern the general public, or the state at large, and which would constitute a violation whenever committed anywhere in the state, would be within the jurisdiction of state patrol officers permitting them to enforce state laws in county parks. On the other hand, the enforcement of local regulations and ordinances relating to matters exclusively of local concern to the particular county is not within the jurisdiction of the state patrol.
As to part (b) of your second question relating to the jurisdiction of an officer to inspect a parked car for the purpose of ascertaining whether a crime has been or is being perpetrated therein, we note that an opinion of this office rendered to the chief of the state patrol on October 6, 1950 (AGO 49-51 No. 363) held that an officer of the state patrol has no right to inspect a parked [[Orig. Op. Page 5]] vehicle to ascertain whether or not a crime has been or is being committed, but he may arrest when the conduct of the occupant makes it evident to an observer that a crime is then being committed. (Also cf. 1928 AGO 867 [[to State Patrol on July 31, 1928]]) observer that a crime is then being committed. (Also cf. 1928 AGO 867)
The principle on which this conclusion is based is well stated inTacoma v. Houston, 27 Wn. (2d) 215, 220, involving an illegal search on which an arrest was based, where the court said:
". . . In fact, the purpose of the officers was not to make an immediate arrest for a crime that had been, or was then being, committed, but rather for the purpose of searching the premises and obtaining information upon which an arrest might then be made."
(4) Your fourth question relating to the authority of officers of the Washington State Patrol to enforce city ordinances within the corporate limits of a city has been answered by the above and foregoing analysis. The legislation cited above creating the state patrol was designed to create a police force for the purpose of enforcing only state laws concerning the general public and the state at large. Consequently, officers of the state patrol, in our opinion, are without authority to enforce city ordinances of local origin and nature.
We trust that the foregoing will be of assistance to you. Feel free to call on us at any time we may be of further assistance.
JOHN J. O'CONNELL
Assistant Attorney General