Request By:
Mr. Michael E. Caudill
Warren County Attorney
431 1/2 East 10th Street
Bowling Green, Kentucky 42101
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You have requested an opinion on the question as to what law enforcement officer is required to serve criminal defendants with warrants and summonses.
Your specific question reads:
"Is it correct that the City Police are responsible for serving both arrest warrants and criminal summons where the defendant resides within the city limits and is it also correct that where the defendant resides outside the city limits but within Warren County the Sheriff's Department is responsible for executing arrest warrants and serving criminal summons? "
KRS 70.070 reads:
"Each sheriff shall execute and make due return of all notices and process which come to him and may be lawfully executed by him against any person or property in his county, or upon any river or creek adjoining his county. He shall return the time of service on each notice and process, and the time of the levy of each execution, what levied on, when he sold the property seized, whom to and what for, and all other matters touching his duty, and shall subscribe his own name to the return, and, if he is a deputy, the name also of his principal."
KRS 70.070 is couched in the general language of "process", so as to include any writ, warrant, summons or other process issuing from a court of justice. The case of Commonwealth v. Illinois Cent. R. Co., 160 Ky. 745, 170 S.W. 171 (1914) 174, quotes from Yeager v. Groves, 78 Ky. 278, in defining "judicial process. "
"Judicial process is but the command of the sovereign by whose authority the tribunal out of which it issues was established, commanding the person or officer to whom it is directed, or who is authorized to execute it, to do certain acts therein specified, and it is therefore appropriate that such process shall run in the name of the government."
Thus KRS 70.070 establishes the territorial limits of the sheriff in serving criminal as well as civil process (i.e., his county boundaries).
Under RCr 2.06(1) (eff. Sept. 1, 1981), "The warrant shall be directed to all peace officers in the Commonwealth and shall direct that the defendant be arrested and brought before the court to which it is returnable. " RCr 2.06(2) provides that "A summons shall be in the same form as a warrant except that it shall summon the defendant to appear at a stated time and place before the court to which it is returnable. "
RCr 2.10 (1) and (2) (eff. Sept. 1, 1981) reads:
"(1) A warrant of arrest may be executed by any peace officer. The officer need not have the warrant in his possession at the time of arrest. In any event, he shall inform the defendant of the offense charged and the fact that a warrant has been issued.
"(2)(a) A summons may be served by any peace officer. It shall be served upon a defendant by delivering a copy to him personally, or by leaving it at his dwelling house or usual place of abode with some person of suitable age and discretion then residing therein."
A "peace officer" specifically includes, under KRS 446.010(24), sheriffs, constables, coroners, jailers, marshals and policemen. See also KRS 431.005 (law of arrest) .
It can be seen from the foregoing rules that it is up to each court to determine the specific peace officer who shall serve the particular criminal process of that court. In Parrott v. Commonwealth, Ky., 408 S.W.2d 614 (1966), the court wrote at page 615:
"No reason is apparent why the technical designation of specific peace officers should deprive other such officers of their authority when such warrant is delivered to them for execution." (Emphasis added).
The additional point is made in Parrott v. Commonwealth, above, concerning process: "If directed to any peace officer, it is directed to all who have authority to act within the jurisdiction involved." (Emphasis added). As pointed out above, a sheriff or deputy can serve judicial process anywhere within his county boundaries. KRS 70.070 and § 99, Kentucky Constitution.
As to policemen of a second class city, the rule is laid down in Brittain v. United States Fidelity and Guaranty Co., 219 Ky. 465, 293 S.W. 956 (1927) 957, that in a second class city the city police officers cannot make arrests outside of their territorial jurisdiction, unless the legislature so authorizes by statute. We can find no statute authorizing city policemen of a second class city to serve criminal process outside of their municipal boundaries. There is nothing in KRS 95.480, relating to the duties of policemen in second class cities, which authorizes such policemen to serve process outside of city boundaries.
There is no statute nor rule requiring automatically city policemen of a second class city to serve all process where the defendant resides in the city, or requiring the sheriff and deputies to serve all process where the defendant resides outside of the city boundaries.
In the special situation treated by KRS 24A.140, where the sessions of district court are held in facilities other than in city facilities, the sheriff is responsible for attending court, serving process etc. Where such sessions are held in city facilities, the city police are responsible for attending court and serving process. However, as relates to serving process, the court would have to take notice of the geographical jurisdictional limitations of the city police of a second class city.
CONCLUSIONS
1. A sheriff and deputies may serve criminal process anywhere within the boundaries of his county.
2. Second class city police may serve criminal process anywhere within the boundaries of their city.
3. Under the criminal rules, generally, it is up to the courts as to determining the particular peace officer required to serve criminal process out of their courts.
4. KRS 24A.140 suggests a responsibility for sheriffs and city police in attending district court and serving process, depending upon who owns the court facility. However, the court, in issuing criminal process will have to keep in mind the geographical jurisdictional limitations of police in second class cities.