Mier v. Com.

• Decision Date: 01 July 1991
• Docket Number: No. 0476-90-4,0476-90-4
• Citation: 407 S.E.2d 342,12 Va.App. 827
• Parties: Harriot MIER, s/k/a Harriet Mier v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 342

407 S.E.2d 342

12 Va.App. 827

Harriot MIER, s/k/a Harriet Mier v. COMMONWEALTH of Virginia.

Record No. 0476-90-4.

Court of Appeals of Virginia.

July 1, 1991.

[12 Va.App. 828] James B. Slaughter, Senior Asst. Public Defender (Office of the Public Defender, on brief), for appellant.

Janet F. Rosser, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: DUFF, MOON and WILLIS, JJ.

OPINION

WILLIS, Judge.

The appellant, Harriot Mier, was indicted for the intentional concealment and conversion of merchandise, valued in excess of $200, without having paid the purchase price, in violation of Code § 18.2-103. She moved to suppress as evidence inculpatory statements made by her to private security agents who had not advised her of her rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). This motion was denied and she was convicted of petit larceny. On appeal, she contends that the trial court erred in denying her motion to suppress the inculpatory statements. We find no error and affirm the judgment of the trial court.

"On appeal, we review the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom. The judgment of a trial court sitting without a jury is entitled to the same weight as a jury verdict and will not be set aside unless it appears from the evidence that the judgment is plainly wrong or without evidence to support it." Martin v. Commonwealth, 4 Va.App. 438, 443, 358 S.E.2d 415, 418 (1987).

On December 10, 1989, Mark Powell, a security guard at Nordstrom department store at Tyson's Corner, saw the appellant in the store pushing a baby in a stroller and carrying an apparently empty shopping bag. She was accompanied by Rosario Camancho and a small child. Powell saw the appellant select a sweater. As he moved to obtain a better view, the sweater disappeared. The appellant and Ms. Camancho moved to the Town Square department, where they were observed by Melissa Bridge and Kim Longest, two other security agents of Nordstrom. The appellant selected an item and entered a fitting room. Ms. Longest was able to see into the room and saw the appellant put items into the bottom of the shopping bag. The appellant and Ms. Camancho then moved to the Petite Focus department. There, the appellant picked up two black sweaters and entered a fitting room followed by Ms. Camancho. Looking through slots in the door, Ms. Bridge and Ms. Longest could see hands rolling up merchandise and concealing it in the shopping bag. After the appellant and Ms. Camancho left the dressing room, Ms. Bridge entered and determined that the two black sweaters which the appellant had taken into the room were not there.

The appellant and Ms. Camancho left the Petite Focus department without paying for any merchandise. They then left the store. Outside, they were stopped by Ms. Bridge, Ms. Longest and Powell, who identified themselves as security agents for Nordstrom and asked the appellant and Ms. Camancho to accompany them to the security office.

Inside Nordstrom's security office, Ms. Bridge recovered from the shopping bag the two black sweaters from the Petite Focus department and a sweater from Men's Sportswear. Powell asked the appellant why she did it. The appellant replied, "This is my first time. I will never do it again." This statement, which appellant sought to suppress, was made prior to the arrival of Fairfax County police officers, who came on the scene and took custody of appellant and Ms. Camancho about fifteen to thirty minutes after their apprehension by Nordstrom's security agents. At no time did the Nordstrom's agents give to the appellant the advice required by Miranda as a predicate to custodial police interrogation.

The appellant's statement to Nordstrom's agents did not result from any coercion exerted upon her. Her statement was freely made in response to a question simply put, without the application or threat of force. The issue raised by this appeal is whether that question was put and the answer given under circumstances amounting to custodial police interrogation. The trial court found that they were not. We agree.

Miranda is directed toward police conduct. City of Grand Rapids v. Impens, 414 Mich. 667, 673, 327 N.W.2d 278, 280 (1982); Tarnef v. State, 512 P.2d 923, 934 (Alaska 1973). "The 5th Amendment privilege against self-incrimination, which the Miranda warnings are designed to protect, has never been held to apply where a private store detective questions a person without any participation by the government." People v. Ray, 65 N.Y.2d 282, 286, 491 N.Y.S.2d 283, 285, 480 N.E.2d 1065, 1067 (1985). "To hold that the conduct of [a] private store detective was governed by Miranda would be an extravagant expansion of the intended scope of that decision, and would constitute an unnecessary and unauthorized interference with the right of a merchant to protect his property by lawful means." Id. at 287, 480 N.W.2d at 1068, 491 N.Y.S.2d at 285. "The duty of giving 'Miranda warnings' is limited to employees of governmental agencies whose function is to enforce the law, or to those acting for such law enforcement agencies by direction of the agencies; ... it does not include private citizens not directed or controlled by a law enforcement agency, even though their efforts might aid in law enforcement." State v. Bolan, 27 Ohio St.2d 15, 18, 271 N.E.2d 839, 842 (1971).

Appellant has relied upon several cases holding that the Miranda requirement should be extended to investigations by non-governmental agencies. However, those cases all involve special circumstances such that the non-governmental agents involved were deemed to be police officers.

In People v. Elliott, 131 Misc.2d 611, 501 N.Y.S.2d 265 (Sup.Ct.1986), there was a report of a firearm observed in an automobile parked in a hospital parking lot. The hospital security office called the police, but directed a hospital security guard to go to the car to await the arrival of the police. The guard was told that the police had been called and were on the way. At the car's location and prior to the arrival of the police, he interrogated the defendant. In holding that the questioning by the guard should be considered a police interrogation, the court said:

Here, there was, in the opinion of this court, coordinated private-public law enforcement involving the investigation of a crime incident. The parking lot investigation and response here, 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.

Id. at 617, 501 N.Y.S.2d at 270. This holding derived from the finding that the questioning by the hospital guard was a part of a private-public police investigation, which carried the guard outside of his traditional private role.

In People v. Glenn, 106 Misc.2d 806, 435 N.Y.S.2d 516 (Crim.Ct.1981), the court found on the facts that the store's detention and interrogation policy was a subterfuge to circumvent the suspect's constitutional rights. The record in this case requires no such finding.

In Tarnef v. State, 512 P.2d 923 (Alaska 1973), the court found that the interrogating private arson investigator had been working so closely with the police that he considered himself a part of the official team investigating the case. He had acquired access to the defendant through the police and had agreed to turn over to the police any statement that he secured. His interrogation of the defendant occurred at the jail.

The Fifth Amendment guarantees that no person shall be compelled in any criminal case to be a witness against himself. This proscription is not offended by the receipt into evidence of a confession freely and voluntarily given. Miranda does not alter this fundamental principle. It addresses a specific concern. ...