Tenth Circuit Held That A Part-Time Police Reserve Officer Working Off-Duty As A Private Security Guard Was Not A Government Actor And Therefore No Fourth Amendment Violation Occurred

In this case the Tenth Circuit decided the issue of whether an off-duty police officer working as a security officer acted as a private citizen or as a government actor when the defendant made incriminating statements during  a search and detainment by a security officer. The Tenth Circuit held that the security officer was acting in his private capacity and his actions did not constitute government action for the purposes of the Fourth Amendment.

In this case, Shawn Reed, worked as a security guard at an Oklahoma City bar. Reed also worked part-time as a reserve officer for the Boley Police Department and had 27 years of law enforcement experience. When Reed worked at the bar, he did not wear his police uniform or his badge and instead wore a shirt with the word “Security” on it. Reed carried a firearm and a personal set of handcuffs when he worked at the bar.

On April 18, 2011, Reed was working at the bar when his supervisor informed him that somebody at the bar had flashed a gun. Reed’s supervisor was concerned about the incident because earlier in the night some people had threatened to obtain a gun and return to the bar to shoot the inside bouncers that had thrown them out. The only description Reed’s supervisor gave him was that the person with the gun was in a red Camaro and was with other men that were in a black SUV. Reed went into the parking lot of the bar at 3 a.m. to investigate and observed three vehicles, which included a black SUV and a red Camaro that had its doors open. Reed walked toward the Camaro when the defendant, Michael Cintron, told Reed that the red Camaro was his car. During this encounter, Reed unholstered his weapon and pointed his gun at Cintron. Reed instructed Cintron to step to the side with his hands on the car. Cintron complied with Reed’s requests. Reed patted down Cintron and found an automatic firearm in Cintron’s waistband. When Reed found the gun, Cintron stated that he was picking up his sister and that the last time he was at the bar “some guy jumped” him. Reed finished his pat down search and handcuffed Cintron. The Oklahoma City Police Department was called and while they were waiting for the police to arrive, Cintron repeated the statement about why he had the firearm and stated that he was on parole.

Sergeant Van Curen from the Oklahoma City Police Department reported to the scene and Reed handed Van Curen the firearm and explained what had transpired. Sergeant Van Curen then secured the firearm. During this conversation between Van Curen and Reed, Cintron jumped into the conversation and repeated his explanation of why he was at the club and had the firearm. Sergeant Van Curen took off the handcuffs that Reed had applied and put on a different pair and placed Cintron in the squad car. Van Curen performed a records check on Cintron and discovered that he was a convicted felon and had five outstanding warrants. Sergeant Van Curen then told Cintron he was under arrest.

Cintron was charged with one count of being a felon in possession of a firearm. Cintron filed two motions to suppress the evidence against him and the statement he made in the presence of Reed and Sergeant Van Curen. The district court denied both motions and held that Reed was acting as a private citizen and was not a state actor and that it was reasonable for Sergeant Van Curen to detain Cintron to conduct an investigation. Cintron appealed the denial of the motions to the U.S. Court of Appeals for the Tenth Ciruit.

The court of appeals held that the Fourth Amendment protections did not apply to Cintron because Reed was working as a private security officer for a bar and was not functioning as a government actor. Although the Fourth Amendment protects the right of people to be secure from unreasonable searches and seizures, these protections do not apply against private individuals not acting as agents of the government or with the knowledge of any government official. 

The court of appeals determined that Reed acted in his private capacity when he searched and detained Cintron because: (1) the bar and not the police department hired and paid Reed for his security guard work; (2) not all security team members hired by the bar were off-duty police officers, and the bar did not rely on official assistance from the police department; (3) Reed was not wearing his police uniform, did not have his badge, and never identified himself as a police officer; (4) Reed testified at the suppression hearing that at the time of the incident he was working for the bar and not for the interest of the police department; (5) Reed did not formally arrest Cintron and instead had the police “sort it out”; and (6) as soon as Sergeant Van Curen arrived, he took over, applied his own handcuffs, performed the records check, and told Cintron that he was under arrest. Thus, the court of appeals determined that Reed was acting in his private capacity as a security guard and his actions did not constitute government action for the purposes of the Fourth Amendment.

With regard to Cintron’s argument that the evidence from the incident should be suppressed, the court of appeals stated that because Reed discovered the firearm and the Fourth Amendment did not apply to his conduct, the firearm was not and should not be suppressed. Therefore, the court of appeals then addressed the issue of whether Sergeant Van Curen’s record check of Cintron should be suppressed. The court of appeals held that Sergeant Van Curen would have conducted the records check to determine if Cintron had a permit for his firearm and would have discovered his status as a felon despite Reed’s action prior to Sergeant Van Curen’s arrival on the scene. Thus, the court of appeals held that the results of Sergeant Van Curen’s records check should not be suppressed.

With regard to whether the district court erred in denying Cintron’s motion to suppress statements he made in the presence of Reed and Sergeant Van Curen, the court of appeals determined that because Reed was not a government actor, there was no interrogation when Cintron made the incriminating statements to Reed. The Fifth Amendment privilege against self-incrimination prohibits admitting statements given by a suspect during custodial interrogation without a Miranda warning. Thus, because Reed was not acting as a government actor on the night of the incident, the court only considered the statements made in the presence of Sergeant Van Curen. When Reed explained the situation to Sergeant Van Curen upon his arrival on the scene, it was Cintron who jumped into the conversation and that he did this voluntarily and that no questions were directed at him. Therefore, Cintron did not make any of the inculpatory statements in response to a custodial interrogation by a government actor, and the court of appeals held that Cintron’s statements should not be suppressed.

The case is U.S. v. Cintron, No. 11-6316, dated June 5, 2012. To review the entire decision, visit: http://www.ca10.uscourts.gov/opinions/11/11-6316.pdf.