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Are the Actions of Private Security Subject to Constitutional Restraints?



A security officer, a retired member of the New York City Police Department which the court takes judicial notice of, at the Long Island Jewish Hospital, was instructed by his security supervisor, via radio transmission, to proceed to a Children’s Hospital parking lot. He was told to locate a certain auto reportedly containing a handgun. A New York Criminal Lawyer said he was also informed that the New York City Police Department had been notified and would arrive shortly. When he located the auto, he observed the handgun in a holster on the front seat. He immediately radioed his supervisor who replied that the police will be on the scene. The security officer checked the auto door and found it locked. The defendant himself, a security officer at the Children’s Hospital, arrived on the scene and saw the responding uniformed security officer standing by his auto. Defendant, without prodding, told the security officer that the auto was his. He then opened the auto door and gave the gun to the security officer.

Defendant then left the scene. The New York City police arrived within minutes, and the responding security officer reported his findings and handed the gun to the police. Defendant then returned to the scene. A New York City Police Officer asked the defendant if the auto was his; defendant replied affirmatively. The officer then asked defendant if he had a permit for the gun. Defendant replied he did not. The police officer then placed the defendant under arrest. While in a police car on the way to the police station defendant was read his Miranda warnings. He then told the officer that he had gotten the gun down south.
Defendant was charged with possession of a handgun without a permit (Criminal Possession of a Weapon in the Third Degree), a handgun crime.

Parties’ Arguments:

For the prosecution – that any action by the hospital security officer is not subject to constitutional scrutiny under either the United States or New York State Constitutions; that even if the action of the security officer was subject to constitutional scrutiny, that the result should still be a denial of suppression of the gun and statements made to the private security officer and to the New York City Police (both before and after Miranda warnings).
For the defendant – seeks suppression of that gun seized by the private hospital security officer, and certain inculpatory statements made to the security officer and later to the New York City Police; that the seizure of the gun by the hospital security officer, and the pre-Miranda statements made by him to the security officer, and to the New York City Police were made while he was under custodial restraint; that the post-Miranda statement to the city police was improperly obtained, as it was not preceded by a probable cause to arrest.

The issue here is whether or not the actions of the private security officer are subject to constitutional restraints.


A Westchester County Criminal Lawyer said that in order to determine the propriety of the seizure of the gun by the hospital security officer and the reception of the statements made in connection therewith (in the hospital parking lot), the court must initially address whether the hospital security officer was acting in a private capacity or as an operative of the Police Department. Such preliminary inquiry is necessary as, generally, statements made to private individuals, or an unauthorized search or seizure by such persons, does not render that evidence inadmissible, at a subsequent law enforcement proceeding.

On the Modern Development of Private Security:

Officials of the private security industry say their services save money and get around “red tape.” However, critics of this rapid extension of private security into both the private and public sectors point to less strict training programs for those in private security, as compared to those for official police officers, the general nonexistence of regulation of the private security industry, and the fact that private security officers and personnel are not subject to the same constitutional scrutiny and control as public officers.

The popular press and legal periodicals are now discussing the problems posed by the fear of crime, the proliferation of private forms of security measure to protect against crime, and the fact that society has a legitimate interest in being safeguarded from potential abuses posed by private protectors or enforcers. In spite of this growing interest, very few courts to date have addressed the question whether private security personnel must give Miranda warnings to suspects whom they are questioning, and/or must they observe other constitutional restraints with respect to identification, search and seizure, etc.

On Miranda Safeguards:

No decision more rightly deserves the label “Landmark” than the case of Miranda v. Arizona. Its name echoes daily in almost every criminal courtroom across the United States. It has, without question, drastically impacted law enforcement for the past 20 years.
In summary, it was intended to place realistic teeth into the Fifth Amendment privilege against compulsory self-incrimination. Miranda’s main thrust was directed at the use by law enforcement agencies of statements, whether exculpatory or inculpatory, which stem from the custodial interrogation of a defendant, unless there is a demonstration that effective procedural safeguards were used to secure a defendant’s privilege against self-incrimination.

On the Application of Miranda – to Private Law Enforcement Personnel:

The Fifth Amendment privilege against compulsory self-incrimination, which the Miranda safeguards were designed to protect, has been very cautiously applied to situations not involving interrogation by official law enforcement personnel.

The court has opined on coordinated private-public law enforcement involving the investigation of a crime or felony incident. Here, the parking lot investigation and response by the hospital security officer did accommodate police objectives. It should be contrasted with the traditional role of protecting hospital property or keeping order within the hospital, etc.

On the Application of Miranda – Tests to the parking lot confrontation:

Having found that the encounter constitutes coordinated law enforcement, which accommodated and furthered police objectives, it becomes necessary to apply Miranda standards to this parking lot confrontation.

The following inquiries must be made: Was the parking lot setting that kind of custodial environment proscribed by Miranda? Was the security officer’s single question about the auto’s ownership, and defendant’s verbal and nonverbal response thereto, exempted from the necessity of Miranda safeguards? Were the limited on-the-scene questions by the New York City Police as to auto ownership and gun permit exempted from Miranda? Was the post-Miranda question and response contaminated?

Before such exploration, it would be useful to recall that Miranda was clearly directed at custodial interrogation, that is, on a case-by-case analysis, where one is in custody, where he is deprived of his freedom of action in any significant way. Miranda was not meant to preclude police from carrying out their traditional investigatory function of investigating crime, including general on-the-scene questioning as to the facts surrounding a crime, and Miranda did not in any way bar volunteered statements of any kind.

The sole question asked by the hospital security officer regarding the auto’s ownership was made openly in an on-the-scene setting, i.e., a hospital parking lot open to the public. Such type of confrontation does not approach the custodial environment or atmosphere envisioned by Miranda.

Further, the limited routine questions, although having the potential of producing an incriminating statement from a suspect, does not appear to be an interrogation as that term was addressed in Miranda.

Defendant’s affirmative response concerning the auto’s ownership and his opening of the car and his turning the gun over to the security officer, for whatever assigned reason, whether defendant was naive or trying to curry favor or understanding, etc., appears to have been voluntarily made and thereby exempted from Miranda requirements.

In summary: the parking lot setting was not of a custodial character; the security officer’s inquiry was of a routine investigatory nature; and the defendant’s response was voluntarily made (the court notes that the defendant himself was a security guard at the same hospital). Defendant should have been aware of the lack of custodial restraint concerning the confrontation in the parking lot, as he was allowed to leave the parking lot scene prior to the arrival of the city police.

For the purpose of determining when Miranda safeguards are required, i.e., when a custodial setting is in effect, which deprives freedom of action in any significant way, it is not a suspect’s objective belief that is determinative but that of the perverbial reasonable man, innocent of any crime; what he would have thought had he been in the suspect’s shoes. In applying this test, the court concludes that defendant’s contention of being under custodial restraint was not substantiated by the facts, nor by what a reasonable man, innocent of any crime, would have thought.

On the Pre- Miranda Statements made to the Police:

On defendant’s parking lot statements to the New York City Police, the court, with respect to statements made to the private security officer, also finds that the limited and routine inquiries and responses thereto are exempt from the necessity of Miranda safeguards.

When the New York City police arrived on the scene, they were handed the gun by the security officer. The New York City Police Officer asked the defendant the following questions: Was the auto his? Was this his handgun? Did he have a permit for the gun? The questioning represents routine investigative inquiries necessary in ascertaining facts.

According to the court, the inquiries are specifically exempted from Miranda requirements. Miranda excludes “general on-the-scene questioning as to facts surrounding a crime or other questioning of citizens in the fact finding process”. Defendant’s responsive on-the-scene statements were the product of a routine on-the-scene fact-finding inquiry. Until defendant’s responses were made, he was not in custody and any of his statements were voluntarily made. The court notes that the officer, upon receipt of affirmative replies to his routine inquiries, arrested the defendant, he placed him in the police car and read him his Miranda safeguards.

Defendant’s statement, after receiving his Miranda warnings, about having gotten the gun down south, does not seem improper or contaminated in any way as it was preceded by probable cause to arrest.

On the Seizure of the Gun by a Private Security Officer:

Here, the hospital security officer was involved in a coordinated law enforcement objective with the New York City Police and, therefore, his behavior must stand the muster of constitutional scrutiny. The court must now examine the defendant’s turning over of the gun to him.

On the issue concerning the voluntarily made statements, etc., the court concludes that the seizure of the gun from the auto in the parking lot after the car was opened by defendant, it was made with defendant’s full consent, the consent to the search and seizure by the security officer was given fully and voluntarily in all, and the seizure by the security officer was made incidental to defendant’s lawful arrest by the police.

In conclusion:

Under circumstances evidencing a simple and brief but coordinated police-private investigation venture, involving hospital security officers and the New York City Police Department, the court concludes that the action by the hospital security officer should be subject to federal-state constitutional scrutiny.

Even though the action is found subject to constitutional scrutiny, it is determined by a showing of clear and convincing evidence that the seizure of the gun by the hospital security officer was not improper but rested upon defendant’s consent freely and voluntarily made and was incidental to a lawful arrest made shortly after seizure by the New York City Police. It is further determined, beyond a reasonable doubt, that the limited on-the-scene investigatory questions (one by the security officer and three by the New York City Police) and defendant’s responses thereto, were voluntarily made within the meaning of the rules and were not made in a custodial setting or under other circumstances requiring the administration of Miranda warnings. Further, that the post-Miranda question and response was properly made and was preceded by a probable cause to arrest.

Henceforth, the motions to suppress physical evidence and statements are denied.

To know more of the legal nuts and bolts on arrests involving Miranda issues, get in touch with a Queens County Arrest Attorney. Enlighten yourself of the legal remedies available in these types of situations by seeking legal advice with a Queens County Criminal Attorney. Whether you have been charged with theft, drugs or sex crimes, contact Stephen Bilkis & Associates for the assistance you need and have a free consultation with our lawyers.

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