COMMONWEALTH OF KENTUCKY V. JOHNNY C. BISHOP, ET AL.
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2006-SC-000123-DG
COMMONWEALTH OF KENTUCKY
V.
APPELLANT
ON REVIEW FROM COURT OF APPEALS
CASE NUMBER 2004-CA-002432-MR
CLAY CIRCUIT COURT NO. 04-CR-00089-001
JOHNNY C. BISHOP AND
CHRISTOPHER SESTER
APPELLEES
OPINION OF THE COURT BY JUSTICE ABRAMSON
REVERSING . REINSTATING AND REMANDING
On March 15, 2004, Detective Patrick Robinson of the Manchester City Police
Department arrested Appellees Johnny Bishop and Christopher Sester for drug-related
offenses at a residence located outside of the Manchester city limits but within Clay
County, Kentucky. After the grand jury returned indictments against both men, Bishop
filed a motion to dismiss, which Sester joined, arguing that the arrest was unlawful
because it was effectuated by a Manchester city policeman and occurred outside of the
Manchester city limits. Bishop based his argument on a 1987 Municipal Order that
amended certain sections of the Manchester Personnel System, the pertinent
amendment being that all Manchester city police were to remain within the city limits
unless an emergency arose . Despite KRS 95.019, which gives city police county-wide
arrest powers, the trial court agreed with Bishop, and on October 13, 2004, entered an
order dismissing Bishop's indictment because it was based on an unlawful arrest. The
Court of Appeals affirmed and, upon the Commonwealth's motion, this Court granted
discretionary review. After reviewing the applicable law, we find that the 1987 Municipal
Order, while valid, does not affect Manchester city police officers' statutorily authorized
county-wide arrest powers . Therefore, we reverse the Court of Appeals decision,
reinstate the indictments against Bishop and Sester, and remand this case for further
proceedings not inconsistent with this opinion .
RELEVANT FACTS
This case began with the arrest of Bishop and Sester, just outside of the fourthclass city of Manchester, Kentucky. On March 15, 2004, members of the Manchester
City Police Department, accompanied by Kentucky State Trooper Joe Lucas, drove to
Bishop's residence, located at 1518 Bray Creek Road in Clay County, Kentucky, to
pursue a drug investigation . Upon arriving, Melinda Adams, who was apparently living
with Bishop at the time, gave the officers consent to search the residence. During their
search, the officers discovered drug paraphernalia inside the house and a
methamphetamine lab outside of the house . Detective Patrick Robinson then arrested
Bishop and Sester, who were both present at the scene. On May 26, 2004, the Clay
County grand jury indicted Bishop on four counts and Sester on three counts of drugrelated offenses . On August 30, 2004, Bishop filed a motion to dismiss the indictment.
The trial court held a hearing on September 1, 2004, during which Sester orally joined
Bishop's dismissal motion.
Bishop argued that due to a municipal order enacted by the City of Manchester
on April 20, 1987, Detective Robinson had no jurisdiction to arrest him outside of the
Manchester city limits and thus, his arrest was unlawful . The 1987 Municipal Order on
which Bishop relies was enacted to amend certain portions of Part 1, the Policies and
Procedures section, of the Manchester Personnel System, which the city adopted on
July 18, 1983. Bishop focused on Section 8 .1(2) of the Personnel System's Policies
and Procedures, which the 1987 Municipal Order amended to include the provision that
"[n]o city policeman or police car is to leave the Manchester City limits while on duty,
unless an emergency arises ." Even though Bishop acknowledged that KRS 95.019
gives city police officers in fourth-class cities the same county-wide arrest powers as
sheriffs, he argued that the City of Manchester nonetheless properly restricted that
arrest power to its own geographical limits by enacting the 1987 Municipal Order. Thus,
Bishop contended, his arrest by a Manchester city police officer outside of the city limits
was invalid .
The trial court agreed, and on October 13, 2004, entered an order granting
Bishop's motion to dismiss his indictment. The Court of Appeals affirmed the trial
court's dismissal, finding that the City of Manchester acted within its authority when it
limited the patrol area of the Manchester city police and that the 1987 order made
Detective Robinson's county-wide arrest unlawful . The Commonwealth petitioned this
Court for discretionary review, which we granted. In reversing the Court of Appeals, we
find that Manchester's 1987 Municipal Order is valid ; does not expressly conflict with
KRS 95.019 ; and does not affect a Manchester city police officer's ability to arrest
offenders outside of the city limits. Rather, the amendment to Section 8.1 simply
modifies an internal, personnel policy for Manchester city police officers, the violation of
which results in internal discipline, not in a declaration that the arrest itself is unlawful .
Therefore, we reinstate Bishop's and Sester's indictments and remand this case to the
Clay Circuit Court .
ANALYSIS
The Clay Circuit Court dismissed the indictments against Bishop and Sester
because it found that the arresting officer lacked the authority and jurisdiction to
effectuate their arrest outside of the Manchester city limits. As a preliminary matter, we
note the strictures imposed by Kentucky law on trial judges who are asked to summarily
dismiss criminal indictments . This Court has consistently held that a trial judge has no
authority to weigh the sufficiency of the evidence prior to trial or to summarily dismiss
indictments in criminal cases. Hayden v. Commonwealth , 489 S .W.2d 513, 516 (Ky.
1972); Commonwealth v . Barth , 80 S .W.3d 390, 404 (Ky. 2001); Flynt v.
Commonwealth , 105 S.W.3d 415, 425 (Ky. 2003). However, there are certain
circumstances where trial judges are permitted to dismiss criminal indictments in the
pre-trial stage . These include the unconstitutionality of the criminal statute, Hayden ,
489 S.W.2d at 514-515 ; prosecutorial misconduct that prejudices the defendant,
Commonwealth v. Hill, 228 S .W.3d 15,17 (Ky. App. 2007); a defect in the grand jury
proceeding, Partin v. Commonwealth,. 168 S.W.3d 23, 30-31 (Ky. 2005) ; an insufficiency
on the face of the indictment, Thomas v. Commonwealth, 931 S .W.2d 446 (Ky. 1996);
or a lack of jurisdiction by the court itself, RCr 8 .18.
In this case, the trial court stated that if was dismissing the indictments against
Bishop and Sester for "want of jurisdiction ." However, the Clay Circuit Court clearly had
jurisdiction over this case because the offense occurred and the arrest was made in
Clay County, Kentucky. Thus, the "want of jurisdiction" referred to by the trial court
appears to be that of the arresting officer, Detective Robinson . Whether an indictment
premised on an arrest by a police officer who acted outside his lawful jurisdiction should
be subject to pre-trial dismissal is an issue of first impression that this Court need not
address at this time. A review of the relevant statutes establishes that Detective
Robinson did not exceed his arrest powers, but rather, acted within the scope of his
authority when he arrested Bishop and Sester within Clay County, Kentucky. Thus, the
trial court erred by dismissing the indictments in this case.
Manchester's 1987 Municipal Order Is Valid and Does Not Conflict with KRS
95.019 .
Neither party in this case disputes that KRS 95.019 and Kentucky case law give
city police officers in fourth-class cities county-wide arrest powers. KRS 95 .019(1)
states that
The chief of police and all members of the police force in
cities of the first through fifth classes shall possess all of
the common law and statutory powers of constables and
sheriffs . They may exercise those powers, including the
power of arrest for offenses against the state, anywhere
in the county in which the city is located, but shall not be
required to police any territory outside of the city limits.
In Commonwealth v. Monson, 860 S .W.2d 272, 273 (Ky. 1993), this Court interpreted
KRS 95 .740(1), which was repealed in 1994 and replaced with KRS 95.019, as clearly
giving police officers of fourth-class cities the same county-wide arrest powers as
sheriffs . Thus, with this matter not in contention, the main issue in this case is the
validity of Manchester's 1987 Municipal Order and its effect, if any, on the arrest powers
conferred on city police officers in KRS 95.019 .
KRS 83A.060(13) states that "[i]n lieu of an ordinance, a municipal order may be
used for matters relating to the internal operation and functions of the municipality . . ."
In addition, KRS 82.082(1) states that "[a] city may exercise any power and perform any
function within its boundaries . . . that is in furtherance of a public purpose of the city
and not in conflict with a constitutional provision or statute ." The 1987 Manchester
Municipal Order both related to an "internal operation" and furthered "a public purpose"
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of the municipality. The 1987 Municipal Order amended certain sections of the
Manchester Personnel System, which, according to the July 1983 Ordinance, was
enacted in order to "have rules and regulations in a single written document delineating
all aspects of employment with the city and available to each of the employees affected
by said rules and regulations ." Some of the sections of the Personnel System that were
amended were entitled "Hours of Work," "Liability Insurance," "Holidays," "Vacation,"
and "Sick Leave." As evident from its subject matter, the 1987 Municipal Order clearly
related to the internal policies and procedures governing Manchester city employees,
including city police officers. Furthermore, by adopting the 1987 order, Manchester
advanced the public purpose of setting forth specific employment regulations and
communicating them to city employees .
The 1987 Municipal Order is also a valid exercise of Manchester's authority
pursuant to the dictates of KRS 82 .082 because it does not conflict with KRS 95 .019.
Subsection (2) of KRS 82.082 states :
A power or function is in conflict with a statute if it is
expressly prohibited by a statute or there is a comprehensive
scheme of legislation on the same general subject embodied
in the Kentucky Revised Statutes including, but not limited
to, the provisions of KRS Chapters 95 and 96 .
Nothing in KRS 95.019 expressly prohibits a city from creating an internal policy that
requires its police officers to remain within the city limits, absent an emergency, while
they are on duty. Similarly, there is no "comprehensive scheme of legislation" in
Kentucky's statutes regarding a fourth-class city's choice to limit the patrol area of its
police officers. If anything, KRS 95 .019(1) envisions the type of policy adopted in
Manchester's 1987 Municipal Order when it states that members of a fourth-class city's
police force "shall not be required to police any territory outside of the city limits."
Therefore, while KRS 95 .019 expressly gives these city police officers the power to
make county-wide arrests, it recognizes that county-wide authority does not mean patrol
responsibility beyond the city limits. In sum, the City of Manchester was within its
authority when it amended Section 8.1 of the Manchester Personnel System policies
and the 1987 Municipal Order does not conflict with KRS 95.019.
The 1987 Municipal Order Amends an Internal Personnel Policy And Does Not
Displace Manchester's City Police Officers' County-Wide Arrest Powers .
The effect of a patrol-area restriction on a city police officer's county-wide arrest
power is a matter of first impression for this Court . However, we find persuasive the
conclusions drawn by the Indiana Court of Appeals in Hart v. Indiana , 671 N.E .2d 420
(Ind . App. 1996). In that case, Clay City Deputy Town Marshal Daniel Wheeler detained
Harry Hart in an area outside of the Clay City limits. Id . at 423. At trial, Hart introduced
a Clay City town document stating that the Deputy Town Marshal's "activity is
PRIMARILY RESTRICTED TO THE TOWN LIMITS," unless the Marshal is giving
assistance to another law enforcement agency, is in hot pursuit, or is involved in an
emergency. Id . at 425 (emphasis in original) . Although none of the listed exceptions
applied in Hart's case, the court nonetheless found that his detention by Marshal
Wheeler was lawful . Id . The Indiana Court of Appeals stated :
As a practical matter, the Town of Clay City wanted to limit
the Deputy Town Marshal's activities outside the town limits.
In other words, even though the town recognized that the
Deputy Town Marshal had the power to make arrests
anywhere in the State, it desired that he spend his time
doing what the town paid him to do, i .e., "to insure the
security and protection of the citizens of Clay City." (R. 370).
The limitations placed upon Deputy Town Marshal by the
Town of Clay City were not meant to, and did not, render
detentions outside the town limits unlawful . Therefore, while
Wheeler's detention of Hart outside the town limits may or
may not have been in violation of the practical terms of his
employment, it was certainly not unlawful . Id .
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Similarly, in Bishop's case, the City of Manchester's purpose in amending
Section 8.1(2) was neither to prevent city police officers from exercising their countywide arrest powers nor to render those arrests unlawful . Rather, it was to keep the
officers within the city limits and ensure that they first and foremost "insure the security
and protection" of the citizens of Manchester. Id . This conclusion is substantiated by
Section 8 .1(2)'s silence with regard to county-wide arrest powers ; it merely states that
city police should remain within, the city limits unless an emergency occurs. This silence
reinforces the fact that this city-limits restriction was not intended to, and does not,
affect the arrest powers set forth in KRS 95 .019. In other words, having a personnel
policy that requires city police officers to remain within city limits does not mean that if
those officers do go out into the county, even absent an emergency, their statutorily
authorized arrest powers somehow dissipate or vanish. At most, the officers may have
violated an employment regulation and be subject to appropriate discipline.
The plain language of the last section of the 1987 Municipal Order even suggests
this interpretation . Section 8.1(6) as amended lists the appropriate punishments that
should be imposed when city police officers violate the aforementioned rules and
regulations . According to this "Violations of Rules and Regulations" provision, after the
first infringement of these terms, the officer shall receive "3 days off without pay;" after
the second offense, he shall have "1 week off without pay;" and after the third offense,
the employee shall be "dismissed ." Thus, even the 1987 Municipal Order itself does not
contemplate that an unauthorized county-wide arrest should result in that arrest being
declared unlawful . The order simply lists the internal penalties that should be imposed
on the officer. Since this amendment to the Policies and Procedures of the Manchester
Personnel System involved an internal employment regulation and did not disturb city
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police officers' county-wide arrest powers, Detective Robinson's arrest of Bishop and
Sester in Clay County was lawful, even though it may have resulted in a violation of the
terms of his employment.'
CONCLUSION
By enacting the 1987 Municipal Order, the City of Manchester validly amended
its internal, personnel system and required its city police officers to remain primarily
within the city limits while they were on duty. However, limiting the officers' patrol area
did not change the fact that KRS 95.019 grants all city police officers of fourth-class
cities county-wide arrest powers. Thus, although effectuating a county-wide arrest in a
non-emergency situation may subject a Manchester police officer to internal discipline,
the arrest itself is lawful pursuant to KRS 95 .019 . Accordingly, we reverse the Court of
Appeals, reinstate Bishop's and Sester's indictments, and remand this case for further
proceedings not inconsistent with this opinion .
All sitting, except Minton, J., not sitting . All concur.
'Having concluded that Detective Robinson's arrest of Bishop and Sester was
lawful because the 1987 order did not change the county-wide arrest powers conferred
in KRS 95 .019, we decline to address the Commonwealth's arguments that the
presence of a Kentucky State Trooper validated the arrest or that the 1987 Municipal
Order was invalid because of the procedural defects in its adoption .
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COUNSEL FOR APPELLANT :
Jack Conway
Attorney General
Bryan D. Morrow
Assistant Attorney General
Office of the Attorney General
1024 Capital Center Drive
Frankfort, KY 40601
COUNSEL FOR APPELLEE
JOHNNY C. BISHOP:
Stephan Charles
304 Bridge Street
Manchester, KY 40962
COUNSEL FOR APPELLEE
CHRISTOPHER SESTER:
Charles Edward Keith
Keith Law Office, PSC
P.O. Box 414
Manchester, KY 40962
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