People v. Holloway

• Decision Date: 17 April 1978
• Docket Number: Docket No. 77-934
• Citation: 82 Mich.App. 629,267 N.W.2d 454
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Bruce HOLLOWAY, Defendant-Appellee. 82 Mich.App. 629, 267 N.W.2d 454
• Court: Court of Appeal of Michigan — District of US

Page 454

267 N.W.2d 454

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Bruce HOLLOWAY, Defendant-Appellee.

Docket No. 77-934.

82 Mich.App. 629, 267 N.W.2d 454

Court of Appeals of Michigan.

April 17, 1978.

Released for Publication July 10, 1978.

[82 MICHAPP 630] Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Edward R. Wilson, Chief Appellate Counsel, Asst. Pros. Atty., Maura D. Corrigan, Asst. Pros. Atty., for plaintiff-appellant.

Brenda J. Maxwell, Detroit, for defendant-appellee.

Before BASHARA, P. J., and GILLIS and KAUFMAN, JJ.

BASHARA, Presiding Judge.

The prosecutor appeals from an order granting defendant's motion to suppress evidence and quash the information. Defendant was charged with carrying a concealed pistol and another concealed weapon contrary to M.C.L.A. § 750.227; M.S.A. § 28.424.

The facts involved are neither complicated nor disputed. A private security guard stationed at a Cunningham's drugstore in the Greyhound Bus Terminal spotted defendant acting in a "suspicious" manner, as if ready to steal some articles. The guard approached the defendant. By this time the guard's partner was already speaking to him. The guard noticed a bulge in defendant's pocket. A pat down revealed a .32-caliber pistol and a concealed knife. The weapons were turned over to the police and defendant was placed under arrest.

Defense counsel argued Fourth Amendment exclusion provisions at the preliminary examination. However, a Recorder's Court judge, sitting as examining[82 MICHAPP 631] magistrate, was not persuaded and bound defendant over for trial. The argument was renewed on motion before the trial court. The trial judge granted the motion on the basis that private security guards are bound by the 4th Amendment strictures and therefore the evidence seized by the guard must be suppressed.

The primary issue, then, is whether the Fourth Amendment restraint on the activities of governmental officers extends to searches by private security guards. We hold that it does not and, therefore, reverse the opinion of the trial court.

This court has very clearly spoken to the issue on more than one occasion. In People v. Smith, 31 Mich.App. 366, 373-374, 188 N.W.2d 16, 19 (1971), the Court stated:

"As previously stated, Mr. Gunn was a private guard, not a police officer, nor was he acting under any authority of any police agency. He was, therefore, a private individual. Thus, the evidence obtained is admissible into evidence whether his actions were reasonable or unreasonable."

Again, in People v. Langley, 63 Mich.App. 339, 344, 234 N.W.2d 513, 516 (1975), we said, relying on People v. Smith, supra :

"Admission of evidence obtained by a private individual, not acting under the authority of the state, is not prohibited by the U.S. Const., Am. IV, whether his actions were reasonable or not."

The learned trial judge relies on decisions of the United States Supreme Court to find that arrests by private security guards are made under "color of law" and are, therefore, subject to the Fourth Amendment strictures. A review of the cited decisions[82 MICHAPP 632] leads us to the conclusion that such reliance is misplaced.

In Griffin v. Maryland, 378 U.S. 130, 84 S.Ct. 1770, 12 L.Ed.2d 754 (1964), the security guard involved had been deputized by the county sheriff for the express purpose of policing an amusement park where the incident complained of occurred. Williams v. United States, 341 U.S. 97, 71 S.Ct. 576, 95 L.Ed. 774 (1951), involved a private detective who held a special police officer's card and badge. The detective was accompanied by a city police officer sent by his superior to lend authority to the proceedings. It was under those circumstances that the United States Supreme Court determined that evidence obtained could be suppressed, because it was acquired under "the color of the law". Surely the facts in the foregoing cases are distinguishable from those at bar.

Accordingly, we would adhere to the precepts laid down in Burdeau v. McDowell, 256 U.S. 465, 475, 41 S.Ct. 574, 576, 65 L.Ed. 1048, 1051 (1921), which have not, so far as our research has shown, been diluted by subsequent decision. The Court stated:

"The Fourth Amendment gives protection against unlawful searches and seizures, and as shown in the previous cases, its protection applies to governmental action. Its origin and history 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 * * *.

"It is manifest that there was no invasion of the security afforded by the Fourth Amendment against unreasonable search and seizure, as whatever wrong was done was the act of individuals in taking the property of another. A portion of the property so taken and held was turned over to the prosecuting officers of the federal government. We assume that petitioner [82 MICHAPP 633] has an unquestionable right of redress against those who illegally and wrongfully took his private property under the circumstances herein disclosed, but with such remedies we are not now concerned."

Thus an 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).

There is a growing feeling among the courts of this country that the exclusionary rule has been stretched far beyond its original and very useful purpose. That frustration was well voiced by Mr. Justice Blackmun in the recent case of United States v. Janis, 428 U.S. 433, 459, 96 S.Ct. 3021, 3034, 49 L.Ed.2d 1046 (1976), reh. den., 429 U.S. 874, 97 S.Ct. 196, 50 L.Ed.2d 158 (1976):

"In the past this Court has opted for exclusion in the anticipation that law enforcement officers would be deterred from violating Fourth Amendment rights. Then, as now, the Court acted in the absence of convincing emperical evidence and relied, instead, on its own assumptions of human nature and the interrelationship of the various components of the law enforcement system. In the situation before us, we do not find sufficient justification for the drastic measure of an exclusionary rule. There comes a point at which courts, consistent with their duty to administer the law, cannot continue to create barriers to law enforcement in the pursuit of a supervisory role that is properly the duty of the Executive and Legislative Branches. We find ourselves at that point in this case."

Finally we note that another panel of this Court, [82 MICHAPP 634] in People v. Eastway, 67 Mich.App. 464, 241 N.W.2d 249 (1976), wrote to the issue here addressed. The holding there, that the Fourth Amendment should apply to private security guards, was only dicta to the law of the case. Nonetheless, insofar as it touches upon our holding, we specifically decline to follow its result or reasoning.

Our resolution of the first issue raised makes it unnecessary to determine whether the private guard's actions were reasonable or justifiable.

Reversed and remanded for trial.

KAUFMAN, Judge (concurring in result).

Historically, debate over issues of constitutional law has largely been a matter of perspective. This case provides a good example of that maxim. The majority opinion has chosen to cast the Fourth Amendment in a narrow context and in static terms. In so doing, it ignores the reality of a law enforcement realm that encompasses not only sovereign peace-keeping forces but other instrumentalities whose activities may, at times, straddle that rather ephemeral public-private boundary which delineates the limits of the Constitution's scope. The majority's perspective ignores the potential for tacit abuse of power on the part of the state. It is a perspective, therefore, I cannot share.

The majority opinion is grounded in two major premises: (1) Michigan law clearly holds that security guards are not subject to the Fourth Amendment, and (2) certain decisions of the United States Supreme Court do not render that law inoperative. I cannot agree with either premise. Further, assuming arguendo the validity of the majority's interpretation of its citations to support [82 MICHAPP 635] its contentions, I nonetheless would not come to the same conclusion.

The majority opinion cites only People v. Smith, 31 Mich.App. 366, 188 N.W.2d 16 (1971), in support of its major proposition, that security guards are not subject to the Fourth Amendment. ¹ That case held that despite the fact that the security guard "was a private policeman licensed in the state of Michigan, and that he had a Detroit license to be a private patrol watchman under a Detroit ordinance", ² he was nonetheless a private person in terms of the Fourth Amendment. However, this Court further explained:

"To hold a private individual to the same standard of conduct as that required of a police officer who acts with, for, and on behalf of the authority of the state, would create a chaotic situation. We recognize that Mr. Gunn was a private policeman but unless, and until, the Legislature or the Supreme Court of the State of Michigan or the Supreme Court of the United States places upon private policemen the same standard of care as is placed on police officers they are acting in an individual and private capacity." 31 Mich.App. at 375, 188 N.W.2d at 20.

I believe that the Legislature has placed "upon private policemen the same standard of care as is placed on police officers". M.C.L.A. § 338.1080; M.S.A. § 18.185(30) states:

"Sec. 30. Any private security police officer, as defined in section 29, who is properly licensed under this act shall have the authority to arrest a person without a warrant as set...