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Search & Seizure – “Citizen’s Arrest”

Waupaca County v. Heather M. Krueger, 2010AP1290, District 4, 3/10/11

court of appeals decision (1-judge, not for publication); for Krueger: John M. Carroll; case activity

Citizen’s detention of driver (for suspected drunk driving) until police arrived to effectuate probable cause-based arrest can’t support suppression of evidence because no state action was involved.

¶5        Krueger seeks suppression of evidence of her intoxicated driving obtained after she was stopped by Sparks, a citizen acting on his own with no law enforcement involvement.  Krueger asserts that, under the applicable common law, Sparks acted illegally and his illegal actions require suppression of evidence, just as if a police officer had stopped her illegally.  Krueger is mistaken.  The legality of Sparks’s actions do not matter for purposes of analyzing whether suppression is required under the Fourth Amendment.  As we explained in State v. Butler, 2009 WI App 52, ¶12, 317 Wis. 2d 515, 768 N.W.2d 46, review denied, 2009 WI 99, 319 Wis. 2d 213, 775 N.W.2d 101 (No. 2008AP1178-CR), Fourth Amendment protections apply only to government action.

Absent some sort of state involvement, the court sweepingly adds, any result of a private citizen’s search can’t be suppressed. And “Sparks, like the security guard in Butler, acted on his own,” therefore the legality of his citizen stop is irrelevant.

The court goes on to place in the private-search pigeonhole, State v. Keith, 2003 WI App 47, 260 Wis. 2d 592, 659 N.W.2d 403 (stop performed by police officer outside his jurisdiction). It’s a plausible take. The rationale in Keith wasn’t spelled out in detail, but a separate line of authority establishes that an officer outside his jurisdiction has no “legal right” to perform an arrest, State v. Barrett, 96 Wis.2d 174, 179, 291 N.W.2d 498 (1980). Implication: the officer in Keith was performing a “citizen’s arrest” (because he wasn’t acting in the capacity of a police officer, he was tantamount to a private citizen); and, given the court’s peremptory dismissal of Keith’s argument, it must have thought suppression simply wasn’t available to what was, in effect, a private-citizen search. Or, as the court now judiciously explains, ¶9, about Keith‘s absent rationale: “We might have added, as we later did in Butler, that ‘unless state-action is involved, a defendant detained by another citizen has no right to suppress the fruits of the citizen’s search.’  Butler, 317 Wis. 2d 515, ¶12.” It is certainly odd, though, that someone is able to bring to bear the full array of state coercion – badge, gun, siren, etc. – and not only be deemed a private citizen, but have his coercive action removed from scrutiny because of the legal fiction that he is not then and there a state actor.

Surely you must be wondering, though it has nothing to do with the facts of this case, What about bounty hunters? Here’s as good a place as any to start your research: United States v. Poe, 556 F.3d 1113, 1127 (10th Cir.), cert. denied, 130 S. Ct. 395 (2009) (“This case requires us to answer a question of first impression in this Circuit: Do bounty hunters constitute state actors for purposes of the Fourth Amendment when they conduct a search in the course of seeking out a bail-jumper? We conclude that bounty hunters do not qualify as state actors when, as here, they act without the assistance of law enforcement and for their own pecuniary interests.”)

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