Request By:
Mr. Roger N. Atkinson
Constable, 2nd District
431 S. Broadway Suite 324
Lexington, Kentucky 40508
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You raise questions concerning the serving of warrants of arrest by constables.
Question No. 1:
"Does a district judge, in any county, have the power and jurisdiction to designate who and which peace officers can execute a warrant? Does he have the power and jurisdiction to withhold warrants for execution and service from a constable or any other peace officer? "
It is true that KRS 70.350 provides that "constables may execute warrants," etc. (Emphasis added). However, the word "may" means that it is permissive only, not mandatory. See KRS 446.010(20). A warrant of arrest is required to be directed to "all peace officers" in the Commonwealth. RCr 2.06. RCr 2.10(1) provides in part that "A warrant of arrest may be executed by any peace officer. " A "peace officer" includes sheriffs, constables, coroners, jailers, marshals and policemen. KRS 446.010(24).
In Parrott v. Commonwealth, Ky., 408 S.W.2d 615 (1966) 615, the court held that a warrant of arrest may be served by a person to whom it lawfully could be directed.
The answer to your question is that the district judge, in any county, as the issuing official, has the discretion as to whom (the peace officer) the warrant shall be delivered for execution. Thus your question about the court's authority to withhold is a misstatement. The court does not withhold a warrant from any peace officer. He merely decides the peace officer to whom the warrant will be delivered for execution.
You must remember, however, that you can only execute a warrant if it is delivered to you. There is no law or rule requiring the issuing judge to deliver the warrant to a particular or specific peace officer.
Question No. 2:
"Is such a refusal an infringement on the constable's powers as governed by statutes?"
The answer is "no". The constable has no vested right in being given a warrant for delivery, as explained above.
Your third question, relating to "infringement" of your rights, needs no explanation, since it is academic under the above analysis.