concurring and dissenting:
While I am in total agreement with the majority’s disposition of this case as to the sheriff’s authority to arrest, and join to that extent, I would respectfully point out that the proper remedy may not necessarily be suppression of evidence seized as a result of the unlawful arrest. I believe that, instead, the Supreme Court’s holdings in Common*500wealth v. Corley, 507 Pa. 540, 491 A.2d 829 (1985), and Commonwealth v. Mason, 507 Pa. 396, 490 A.2d 421 (1985), control. In Corley, appellant was detained for various offenses which had occurred outside the presence of a security guard, who, in the course of arresting appellant removed from appellant’s person a wallet stolen from the victim. The conviction was followed by an appeal premised on the claim that counsel had been effective for withdrawing a meritorious suppression motion related to the wallet. It was argued that the exclusionary rule applied to a citizen’s arrest, and that no private citizen could arrest absent the commission of a felony in his presence.
The Superior Court affirmed, holding that although the exclusionary rule theoretically applied in instances of citizen’s arrest, the arrest under consideration was legal, and the rule therefore remained dormant. The rationale advanced was that because the state became involved after effectuation of a citizen’s arrest, that is, ratified the arrest, the arresting person’s conduct became chargeable to the state, and the results of that conduct became liable to suppression. The court further reasoned that despite dicta to the contrary, a citizen could arrest for breaches of the peace he had personally observed, merely by extension of the common law rule permitting such arrests after the occurrence and observation of a felony, thus lending legitimacy to the arrest in question, and insulating it from application of the exclusionary rule.
On further appeal, the supreme court, while affirming, found this court to have misapprehended the concept of state action. It distinguished between the situation in which the state bears responsibility for the results of actions performed by a private person specifically in the capacity of an instrument or agent of the state, and the situation in which the state merely uses the results of that individual’s actions. The former is subject to application of the exclusionary rule since the conduct involved is not subject to criminal or civil liability, having been caused by the exercise of some state right or privilege. Suppression *501is therefore the penalty to be paid by the state for the improper conduct of someone acting on its behalf. Where the conduct of the arresting person is not chargeable to the state, mere cooperation with state officials is not sufficient to activate the exclusionary rule. Applying this concept to the instant case, since the sheriff could not, given the limitations inherent in his position, have operated under color of law, concomitantly, the arrest herein could not have been performed by him as an instrument or agent of the state, and does not compel application of the exclusionary rule.
Although the majority argues that the sheriff as a constitutional officer cannot be covered by the rubric “private citizen,” he has no more power to arrest under the circumstances of this case than does such a citizen. If he does not have the authority to act on behalf of the state, his conduct cannot, by definition, be posited as state action. Therefore, state action is not implicated by Gibbons’ “acting in his capacity as deputy sheriff” (majority Opinion at 1038), since that office never provided him with the capacity to arrest for summary offenses.
In Commonwealth v. Eschelman, 477 Pa. 93, 383 A.2d 838 (1978), our supreme court found an arrest made by off-duty auxiliary policeman to have been “ratified” by the state, where the searcher was acting as a policeman, and was treated by other officers as such. These acts of ratification followed naturally upon the authority of the officer to arrest which would have been operative otherwise than during his off-duty hours. In other situations where the power to arrest exists but has been limited by factors such as jurisdictional boundaries, see, Commonwealth v. Mason, supra, the rule of exclusion is not automatically applied to provide redress from “real or imagined transgressions of a defendant’s right to be free from unreasonable searches and seizures.” Corley, supra 507 Pa. at 552, 491 A.2d at 834. In Mason, our supreme court declined to apply the exclusionary rule to the fruits of a search conducted in apparent violation of Pa.R.Crim.P. 2004, which *502states merely that warrants of search shall be served “by a law enforcement officer.” The search was conducted by officers who had no jurisdiction at the location of the search, accompanied by local police who did not participate in the search. The presence of the latter was found to fulfill the jurisdictional necessity established by the rule. Citing Commonwealth v. Musi, 486 Pa. 102, 404 A.2d 378 (1979), the court stated,
A rule of exclusion is properly employed where the objection goes to the question of the reliability of the challenged evidence ... or reflects intolerable government conduct which is widespread and cannot otherwise be checked.
Id., 486 Pa. at 115, 404 A.2d at 383.
As the concurrence in Corley points out, the Supreme Courts of the United States and of the Commonwealth of Pennsylvania have made clear that “the exclusionary rule will not be extended to areas where its application would not tend to achieve its primary purpose of deterring unlawful police conduct.” Id. 507 Pa. at 552, 491 A.2d at 835 (emphasis in original). “It is only where the violation also implicates fundamental, constitutional concerns, is conducted in bad faith or has substantially prejudiced the defendant that exclusion may be an appropriate remedy.” Mason at 407, 490 A.2d at 426 (emphasis in original). Since it has been concluded that a deputy sheriff is not a police officer regardless of his having erroneously attempted to act as one, none of the conditions specified in Mason is present, and no other factor exists which compels suppression of the evidence as a remedy.1
*503Finally, the dissent also found that a deputy sheriff is not empowered to arrest for summary offenses. This court has held that the right of a private citizen to arrest does not include summary violations. See, Commonwealth v. Stahl, 296 Pa.Super. 507, 442 A.2d 1166 (1982). This parallel further extends the notion that evidence obtained as the fruits of the arrest herein not be suppressed.
Accordingly, I would find that the arrest was illegal, but would decline to suppress its fruits.
. The majority states that suppression is the appropriate remedy because otherwise deputy sheriffs would merely be given by indirection carte blanche to "hold[ ] motorists at gunpoint or otherwise” until a “valid" arrest could be effected. I would suggest that criminal charges of kidnapping, false imprisonment, aggravated assault, and possible criminal conspiracy, or tort actions for false arrest, false imprisonment, assault and battery, etc., which would inevitably follow upon such a scenario would tend to discourage its repetition. The main point of the exclusionary rule is to punish the state, which is otherwise immune from liability for an actionable detention. However, where a person without "a privilege defined by the law of the *503state” Commonwealth v. Corley, 507 Pa. at 548, 491 A.2d at 832, engages in behavior such as that described, he is not shielded from the civil or criminal repercussions of his acts. Id. The majority definitively deprives deputy sheriffs of the privilege to arrest for summaries. They may not contravene that decision with impunity.