City of Grand Rapids v. Impens

• Court: Michigan Supreme Court
• Writing for the Court: FITZGERALD; KAVANAGH; LEVIN
• Citation: City of Grand Rapids v. Impens, 414 Mich. 667, 327 N.W.2d 278 (Mich. 1982)
• Decision Date: 07 December 1982
• Docket Number: No. 10,Docket No. 66378,10
• Parties: CITY OF GRAND RAPIDS, Plaintiff-Appellee, v. Frederick Gerard IMPENS, Defendant-Appellant. Calendar414 Mich. 667, 327 N.W.2d 278

Page 278

327 N.W.2d 278

CITY OF GRAND RAPIDS, Plaintiff-Appellee, v. Frederick Gerard IMPENS, Defendant-Appellant.

Docket No. 66378.

Calendar No. 10.

414 Mich. 667, 327 N.W.2d 278

Supreme Court of Michigan.

Argued Jan. 5, 1982.

Decided Dec. 7, 1982.

Philip A. Balkema, City Atty. by Julie Ann Woods, Asst. City Atty., Grand Rapids, for City of Grand Rapids, a Michigan Municipal Corp.

Saukas, Bush, Idema & Mitus, P.A. by Karl V. Bush and Michael L. Idema, Grand Rapids, for defendant-appellant.

FITZGERALD, Chief Justice.

We are asked to determine whether a signed statement procured by private security guards, one of whom was an off-duty deputy sheriff, may be admitted into evidence against a defendant even though no Miranda ¹ warnings were given. We hold that no such warnings were necessary in this case and affirm the decision of the Kent Circuit Court.

Defendant, Frederick Impens, was charged with disorderly conduct on the basis of a shoplifting incident at a Grand Rapids Meijer store. While walking through the store, security detective Rick Cain, an off-duty deputy sheriff from neighboring Allegan County, observed defendant and his two companions, Allen Raush and David Ronkema, in the musical tape aisle. Believing their behavior to be suspicious, Cain proceeded to the milk cooler, a vantage point from which activity in the tape aisle could be viewed. Charles Booth, another store detective, was already there and had observed one of the men concealing a tape on his person. Booth testified that he observed Allen Raush picking up tapes, removing the packaging, and concealing the tapes inside his pants. Frederick Impens and David Ronkema were observed looking around, walking up and down the tape aisle, selecting tapes, and handing them to Mr. Raush.

Cain and Booth followed the three men after they left the tape aisle and proceeded to different areas in the store. The security guards approached defendant and his companions and asked them to come to the security office. Some identification was shown, though Cain could not recall whether he showed his Meijer identification or his badge.

The officers were joined in the office by a third security guard, and the three men were searched. The tape cartridges and a watchband were found in Raush's possession. The security guards proceeded to talk to the three, eliciting the necessary information to complete Meijer's form entitled "Loss Prevention Department Voluntary Statement". The statement was read to the defendant, and he signed it. There was no indication that defendant would not be released if the statement were not signed. The Grand Rapids police were called. The police arrived, issued appearance tickets to Impens, Raush and Ronkema, and the three men left the security office. Charles Booth testified that they were in the security office for approximately 15 minutes.

Defendant was convicted of the charged offense by a district court jury. The conviction was affirmed by the Kent Circuit Court. The Court of Appeals denied the defendant's application for leave to appeal. This Court granted leave to appeal. 411 Mich. 1035 (1981).

Prior to trial, defendant moved to suppress the admission of the signed statement, alleging that it was taken in violation of his constitutional rights. It is conceded that defendant was not advised of his rights before he gave the statement. The motion was denied. Defendant contends in this Court that the trial court erred in concluding that the inculpatory statements and confession made by defendant were voluntary where obtained without prior Miranda warnings in a custodial environment by private security officers, one of whom was a moonlighting deputy sheriff from a neighboring county, and that reversal is required.

In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the United States Supreme Court "established a conclusive presumption that all confessions or admissions made during a period of custodial interrogation are compelled in violation of the Fifth Amendment's privilege against self-incrimination". 2 Ringel, Searches & Seizures, Arrests and Confessions (2d ed), Sec. 26.1, pp 26-1 to 26-2. This presumption can only be overcome by demonstrating that the defendant has received specified warnings of his rights and has been informed that these rights may be waived. Any such waiver must be made voluntarily, knowingly and intelligently. Statements, whether exculpatory or inculpatory, secured from a defendant in the absence of these procedural safeguards may not be used by the prosecution in any proceedings against the defendant. This exclusionary rule applies to federal proceedings and, by virtue of the Fourteenth Amendment, to state proceedings as well.

Constitutional protections apply to governmental action only; thus, it generally has been held that "a person not a police officer, or not acting in concert with or at the request of police authority, is not required to extend constitutional warnings prior to the eliciting of an incriminating statement". People v. Omell, 15 Mich.App. 154, 157, 166 N.W.2d 279 (1968). In Burdeau v. McDowell, 256 U.S. 465, 475, 41 S.Ct. 574, 65 L.Ed. 1048 (1921), the Supreme Court explained that the origin and history of the Fourth Amendment "clearly show that it was intended as a restraint upon the activities of sovereign authority, and was not intended to be a limitation upon other than governmental agencies". The Court held that evidence illegally seized by a private individual could be used against an accused in a grand jury investigation. The Burdeau court recognized that such a rule of restraint on government action was reasonable in light of the traditional means available to private individuals to redress their grievances. This concept has been followed by our Court of Appeals in People v. Holloway, 82 Mich.App. 629, 267 N.W.2d 454 (1978). In holding that the Fourth Amendment's prohibition against unreasonable searches and seizures does not extend to activities by private security guards, the Court wrote:

"[A]n individual has the right to redress any wrongs which may have been committed by private citizens, be they security guards or not. They can bring civil actions or file criminal complaints against the alleged offenders. It is because the cloak of sovereign immunity is wrapped around law enforcement officials that the Fourth Amendment is applied to their actions (though today a somewhat ragged cloak)." 82 Mich.App. 633.

Thus, the exclusionary rule only applies if governmental involvement can be shown. Statements made to private individuals need not be preceded by Miranda warnings. United States v. Antonelli, 434 F.2d 335 (CA 2, 1970); United States v. Bolden, 461 F.2d 998 (CA 8, 1972); United States v. Casteel, 476 F.2d 152 (CA 10, 1973); Schaumberg v. State, 83 Nev. 372, 432 P.2d 500 (1967); Anno: Custodial Interrogation--Miranda Rule, 31 A.L.R.3d 565, 666-668.

Some decisions have held that private security guards who receive direct assistance from public police officers or who work in close connection with the police may be acting under color of state law, subject to constitutional restrictions.

In Williams v. United States, 341 U.S. 97, 71 S.Ct. 576, 95 L.Ed. 774 (1951), a private detective held a special police officer's card and badge and was accompanied by a city police officer in obtaining evidence. The detective had been hired by a private business to discover the identity of some thieves. In this instance, the Court found sufficient direct assistance from the public police to conclude that the private detective was acting under color of state law. The Alaska Supreme Court in Tarnef v. State, 512 P.2d 923 (Alaska, 1973), held that a private arson investigator working at the direction of the local police had to advise the defendant of his constitutional rights before eliciting a statement. The Court noted that the private investigator had promised to turn any statements over to the police, had enlisted police assistance in gaining access to the incarcerated defendant, and had regarded himself as a member of an official team. See also Griffin v. Maryland, 378 U.S. 130, 84 S.Ct. 1770, 12 L.Ed.2d 754 (1964); People v. Jones, 47 N.Y.2d 528, 419 N.Y.S.2d 447, 393 N.E.2d 443 (1979); People v. Zelinski, 24 Cal.3d 357, 155 Cal.Rptr. 575, 594 P.2d 1000 (1979).

We do not believe that the activities of the store security guards and the city police in this case demonstrated the coordinated effort necessary to constitute state action. The Meijer security personnel were working with the view of furthering their employer's interest only; they were not acting as police agents. Their role may be viewed as an extension of the commonlaw shopkeepers' privilege to detain for a reasonable period of time a person suspected of theft or failure to pay. See People v. Raitano, 81 Ill.App.3d 373, 36 Ill.Dec. 597, 401 N.E.2d 278 (1980). There was no complicity with the police department or any indication that their acts were instigated or motivated by the police.

The security guards did not exceed the scope of their power to detain and question the suspected shoplifters. The security guards were in plain clothes; the detention did not last an unreasonably long time. While there was some indication that the suspects were nervous, the acts of the security guards did not present the kind of psychological coercion and threatening environmental custody addressed by Miranda.

"But the mere asking of questions is not illegal. And guarantees against self-incrimination do not turn solely on whether interrogators are state agents. Rather, they prevent the state from using involuntary answers as evidence * * * whether obtained by government or private conduct * * *. Statements obtained without manifest physical or psychological coercion usually are deemed voluntary, though defendant never knew or waived his rights to silence and counsel." (Citations omitted.) In re Deborah C, 30...