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Search & Seizure – Applicability of Exclusionary Rule: Seizure and Detention by Private Security Guard

State v. Paul Anthony Butler, 2009 WI App 52, PFR filed 4/20/09
For Butler: Trisha R. Stewart Martin

Issue/Holding: Seizure and detention by security guard, until police arrived to conduct search, didn’t amount to government action so as to trigger 4th amendment analysis, under 3-factor test of State v. Tomas Payano-Roman, 2006 WI 47:

¶14      As we see from Butler’s submissions that are in the Record, none of the elements of state-action identified by Payano-Roman is present here. First, the security guard acted entirely on his own—nothing he did in detaining and initially searching Butler was instigated by the police. Second, as a Chuck E. Cheese security guard, it was in his interest and in the interest of his employer to keep the restaurant’s parking lot safe for other drivers and pedestrians. Third, there is no evidence in the Record or in Butler’s offer-of-proof that indicates that the security guard’s detention and initial search of Butler was “‘for the purpose of assisting governmental efforts.’” See id., 2006 WI 47, ¶18, 290 Wis. 2d at 390, 714 N.W.2d at 553 (quoted source omitted). Finally, what the security guard did in detaining and initially searching Butler was not part of some “joint endeavor” with law enforcement. See id., 2006 WI 47, ¶19, 290 Wis. 2d at 390, 714 N.W.2d at 553. Thus, nothing the security guard did violated Butler’s Fourth Amendment rights against unreasonable searches and seizures.

The security guard detained, searched and handcuffed Butler for driving recklessly on company property (over 40 in parking lot). The guard then called the police because Butler was wearing an empty gun holster, so the guard thought Butler had a gun. The police searched the car and found a loaded hand gun in the glove compartment. It’s almost pointless to add that Butler was a felon. That the “detention and initial search” was not a “joint endeavor” appears to be relatively non-controversial. But that initial interaction yielded no evidence, so in that sense it’s also irrelevant. The real question ought to be whether Butler’s continued detention for the express purpose of assisting a police investigation triggered the 4th A. The court simply doesn’t address that narrow issue, at least not explicitly. If cuffing and holding someone precisely so the police can come and conduct a search isn’t some sort of “joint endeavor” then it’s hard to imagine what might. And, if the court is correct in its sweeping statement (“nothing the security guard did violated Butler’s Fourth Amendment rights”), then what would stop some future security guard from conducting the search him or herself? This is to say that perhaps the court was simply addressing the narrow question being litigated (whether the “detention and initial search” involved state action), and not the distinct question of continued detention.

Separately: Does it matter that the guard (presumably) was licensed under § 440.26; does a state license help establish, well, state action? (The court doesn’t address the question.) Detailed discussion on the general problem of private guards in relation to state action: LaFave, Search & Seizure, § 1.8(d) (caselaw, to be sure, seems overwhelmingly to exempt private guards from state-action analysis; but there are arguments to the contrary, besides which Butler’s case is a bit different from the mine-run case, in that he was detained by a guard for the express purpose of allowing the police to perform a search).

What about Dog the Bounty Hunter? OK, not quite that Dog, but generically speaking, if the following case is representative, then a bounty hunter isn’t a “state actor,” at least when acting “without the assistance of law enforcement and for (his) own pecuniary interests”: U.S. v. Poe, 10th Cir No. 07-6237, 3/3/09.


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