Private Security and Fourth Amendment Implications

Many establishments and retail stores hire private security. Often the private security personnel are the ones that witness an alleged crime and call the cops to the scene. Sometimes, the private security will go so far as detaining the person until the cops arrive. Because private security personnel are not as experienced or trained as cops, they may trample on Fourth Amendment rights when detaining an individual. A recent Court of Appeals decision, though, overlooks this fact in favor of the State. We’ll explain how you can avoid this from happening to you.

In the Court of Appeals case, a noticeably impaired driver parked in the main entrance of a local casino. Before driving, a private security officer noticed his impaired state while walking to his vehicle and then when he walked inside the casino after parking. The security officer approached the driver and noticed the typical indicators of intoxication. He soon called the cops to the scene and advised the driver to stay there – but made no representation about whether the driver was free to leave – until they arrived. The driver later appealed his conviction, arguing that this was an improper seizure.

The Court of Appeals determined that, because the security officer was not acting as an agent of the State and made no such representation to the driver that he was, the private security officer cannot implicate Fourth Amendment rights. The Court concluded that it would be illogical to supplant the State for the actions of a private party, even if said private party is a security personnel.

This conclusion puts individuals facing similar circumstances in a precarious position. The best approach would always be to ask the private security officer – am I free to leave? If they say no, you are making a stronger case that Fourth Amendment rights are in play because the security officer is acting more like a State agent in officially detaining you. If they say yes, well, you may leave then. And if there is hesitancy, you may force the issue and request to leave.

If you find yourself facing a charge stemming from such a situation, be sure to get the right defense team to fight this important Fourth Amendment issue. A successful defense can lead to the suppression of critical evidence that may lead to a dismissal of the charges.