Do Security Pros Have to Use Miranda Rights?

[Curtis Baillie]

Do you have to "Mirandize" shoplifting suspects and other suspects held for questioning?

Today, I wrote my latest Security2LP blog article titled, Do Security Pros Have to Use Miranda rights? Along with the article I have included a link to a PDF non-redacted copy of the 24-page 1963 Phoenix Police Department report that started it all.

Here's a link to the article where you can then click to read the police report.

[SecTrainer]

Do you have to "Mirandize" shoplifting suspects and other suspects held for questioning?

Today, I wrote my latest Security2LP blog article titled, Do Security Pros Have to Use Miranda rights? Along with the article I have included a link to a PDF non-redacted copy of the 24-page 1963 Phoenix Police Department report that started it all.

Here's a link to the article where you can then click to read the police report.

The short answer is "no". The protections afforded in the Constitution and Bill of Rights apply to the government and its agents. For instance, the right to free speech has nothing to do with whether I, as a private citizen, may instruct you not to express your political views at my kitchen table. But it does constrain whether the government may instruct you to be silent. I can order you not to use a bullhorn to express your views while standing on my front lawn merely because I find them objectionable, but once you step onto the sidewalk it becomes a government matter, and they would have to find some reason of public policy (keeping the peace, inciting to riot, or other established exception to the 1st Amendment) to constrain your speech. THEY could not restrain your speech merely because it was unpopular, but I CAN, if I am exercising my property rights (which includes the right to enjoy my property in peace and without your annoyance).

In general, loss prevention and security people, when employed by private concerns, are not agents of the government, and in certain circumstances private citizens actually enjoy greater latitude of action than the police do. As has been stated, on private property it is the citizen exercising his lawful rights with respect to that property who has the power - not the police.

But, of course, there are exceptions. Under certain circumstances, private citizens might act "under color of law". This means, in essence, that they are acting as agents for the government, and "color of law" almost always implies that the government has prior knowledge of their actions and directs them to some extent. Of course, neither of these is true in the case of the typical shoplifting arrest.

There have been cases, for instance, in which private citizens were asked, in their normal roles such as a minister or teacher, to interrogate people who refused to speak to the police. There have been cases when snitches were instructed and directed to conduct searches of premises to which they had privileged access (but not legal control), when there wasn't enough evidence for the police to obtain a warrant. Any of these is "acting under color of law", and in such cases the Constitutional protections would extend to your actions. (In other words, these confessions and searches have been thrown out under the doctrine of "fruit of the poisoned tree" - a private citizen cannot do, while acting "under color of law", what the police themselves would not be entitled to do).

There is a fair amount of case law also, such as the following case out of Texas - in which the defendant's argument pertained to whether an Old Navy LP agent was acting as an agent of the government in obtaining a written confession:

http://www.7thcoa.courts.state.tx.us...pinionId=14479

The Reader's Digest version of this decision is: No, the LP agent working for Old Navy was NOT acting as a government agent merely because the written confession he obtained was gotten, in part, for the purpose of aiding in the prosecution of the defendant, OR because the police were "familiar" with (had prior knowledge of) Old Navy's practices with respect to shoplifter apprehensions, OR because the confession was subsequently used in convicting the defendant (these were the arguments offered by the defendant). The police did not have prior knowledge of this arrest, nor did they in any way direct the activities of the LP agent in question. They did not instruct him to obtain the confession and, in fact, arrived after it had been obtained. This decision falls in line with most of the case law on this subject, in most states. (State appellate courts do take judicial notice of decisions from other states.)

The case law is much less clear when it comes to police moonlighting in private security. Do they have an obligation to Mirandize shoplifters or others whom they apprehend in the course of those duties?

In some court jurisdictions, there is no time (from a legal standpoint) that a sworn officer is not considered to be a sworn officer - whether on duty or off. If he conducts a search, interrogates a suspect or makes an arrest, he ALWAYS does so as a sworn representative of the government, no matter who is paying him at the moment.

But in other jurisdictions, sworn officers are not considered to be "acting as such" while they are off-duty and moonlighting. In some jurisdictions, it comes down to which uniform they wear (police or security), or whether or not they identify themselves as as a police officer while performing security/LP duties (e.g., displaying police badge, etc.). This can be one of the great disadvantages of hiring off-duty police, because of the added complications, obligations and attendant liabilities that can attach to their employment in some jurisdictions (among numerous other disadvantages regardless of jurisdiction, mainly their lack of reliable availability when the SHTF and they are called in for police duty, but that's another conversation).

Finally, in the US with all of its varied jurisdictions we have a hodge-podge of "hybrid" circumstances in which, for instance, certain people might carry "special commissions" of one sort or another, or might act as "special constables", etc. It would be a good thing to know how the courts will view their status.

...and Curtis tells me recently that there are jurisdictions where merchants have been granted the power to haul people directly (by means of summons) before a magistrate. I don't know how Miranda plays into this!

WHO TO ASK? It is not up to the local police to decide this question, which is a matter of law, not policy. The lawyer who handles the corporate affairs for your company usually won't be the best source either for this kind of question. With any issues respective of the legal authority, constitutional obligations, etc. that may attach to security and loss prevention personnel, if there is no clear guidance from the licensing authority of your state (or there is none), your company should request an opinion from at least the district attorney in your county, and better still would be an opinion from the office of your state Attorney General. In fact, it is possible that this has already been addressed in an opinion letter because it's a fairly common question.

These are among a few of the reasons you want to get an opinion on this from a legal source such as those I have recommended.

[Curtis Baillie]

In case you don't want to get the link to the police report from the blog - Click here to download and read the original "Miranda" Phoenix Police report, DR# 63-0830.

[just joe]

Curtis, Over the years I've seen plenty of security supervisors and a few directors who had absolutely no business being in the position they were in, which (I think) is a key factor in bad decision and policy making.

[Curtis Baillie]

I agree and have found the majority of retail security departments who mandate their LP give shoplifters their Miranda are headed by ex-police officers who just haven't been able to cross the line between police and LP.

Just a note: I used to work in a major state agency in Arizona with one of the Phoenix Officers (retired) who is one of the main investigators named in the Miranda report.