A police officer cannot stop cars whenever he wants because the Fourth Amendment protects us against unreasonable searches and seizures. In order for an officer to conduct a traffic stop under the Fourth Amendment, he must have “reasonable suspicion” that the driver has committed a crime or infraction. But how does this change if, instead of a police officer making the stop, the person making the stop is a private security guard, such as one contracted by a community’s HOA?
The Fourth Amendment states that
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The US Supreme Court has held that a “traffic stop is a seizure "even though the purpose of the stop is limited and the resulting detention quite brief."” In order to make a traffic stop, an officer must have “"reasonable, articulable suspicion that criminal activity is afoot." However, the Fourth Amendment only protects us from acts of the government, not against the acts of private citizens. Therefore, we must determine whether the person making the traffic stop is a “state actor.”
The North Carolina Court of Appeals recently looked at this issue in the 2013 case, State v. Weaver. In that case, a security was contracted by a townhome community’s HOA and was a licensed “security guard” as defined by G.S. 74C-3(a)(6). That statute provision defines a “security guard and patrol profession” as
Any person, firm, association, or corporation that provides a security guard on a contractual basis for another person, firm, association, or corporation for a fee or other valuable consideration and performs one or more of the following functions:
a. Prevention or detection of intrusion, entry, larceny, vandalism, abuse, fire, or trespass on private property.
b. Prevention, observation, or detection of any unauthorized activity on private property.
c. Protection of patrons and persons lawfully authorized to be on the premises or being escorted between premises of the person, firm, association, or corporation that entered into the contract for security services.
d. Control, regulation, or direction of the flow or movement of the public, whether by vehicle or otherwise, only to the extent and for the time directly and specifically required to assure the protection of properties.
The security guard had met the minimum training requirements, “including a minimum of four hours of class time and eight hours of range time for firearm certification.” He did not have any training in speed detection or detection of impaired drivers. He wore a uniform and carried a firearm. The car he drove was marked “Metro Public Safety” and had red, white and amber warning lights on top but did not have a siren.
As part of the security guard’s contract with the townhome community, he “was authorized to issue civil citations and fines to anyone on the property who violated the rules and regulations of the community, such as exceeding the posted community speed limit.”
At 2:10 a.m., on a Friday night, the security guard observed a car in the community cross the middle line several times while travelling 10 mph over the community speed limit. He turned on his warning lights and stopped the car. After he approached the vehicle, he introduced himself as an officer from Metro Public Safety and asked if the driver had any identification. He observed that the driver’s eyes were bloodshot and that there was an odor of alcohol coming from the vehicle and the driver’s person.
The security guard told the driver that he had been stopped for “careless and reckless speeding.” He asked the driver if he had any “intoxicating substance” that night and the driver admitted to consuming alcohol. At that point, the security guard asked the driver to "step out of [the] vehicle and have a seat on the . . . sidewalk[.]"
He then called the city dispatch and asked them to send an officer for a possible DWI. The security guard issued the driver a civil citation and then did not give him any further instructions or have any additional conversation.
When the police officer arrived, he noticed that the driver had bloodshot eyes, slurred speech and was unsteady on his feet. The police officer conducted field sobriety tests and then arrested the driver for DWI.
The trial court granted the defendant’s motion to suppress, concluding that the security guard was an “agent of the State” and the stop was not supported by reasonable suspicion.
On appeal, the Court of Appeals first explained that “a traffic stop conducted entirely by a non-state actor is not subject to reasonable suspicion because the fourth amendment does not apply.” To determine
whether a private citizen is a state actor for the purposes of the fourth amendment, we use a totality of the circumstances approach that requires special consideration of 1.) "the citizen's motivation for the search or seizure," 2.) "the degree of governmental involvement, such as advice, encouragement, knowledge about the nature of the citizen's activities," and 3.) "the legality of the conduct encouraged by the police."
The Court of Appeals noted that it was important that "[o]nce a private search [or seizure] has been completed, subsequent involvement of government agents does not transform the original intrusion into a governmental search."”
The court then conducted its analysis of the three factors with the findings of the trial court. First, it held that the security guard’s motivation was not to assist law enforcement officials at the time he conducted the traffic stop, but instead he wished to issue him a civil citation for the violation of community rules. Second, the court held that there was no indication that the police requested that the security guard encourage him to stop and detain the driver, since the security guard had no further conversation with the driver after calling in the possible DWI. Finally, the court held that the subsequent arrival of the police “did not convert [the security guard’s] private conduct to state action.”
The court concluded that the security guard “was not a state actor, and his traffic stop of defendant did not require reasonable suspicion.”
If you have been arrested for DWI, contact a lawyer at Rosensteel Fleishman, PLLC (704) 714-1450.