Police: Private Police and Industrial Security

Typically, security officers have no more authority to act than private citizens, except when they are deputized by local enactment or are provided with special powers. Private police (citizens) enjoy arrest powers, which are typically similar across all the states.

One of the primary concerns of security management is to ascertain by what legal authority security officers can investigate suspected shoplifters, embezzlers, and the like. This may help management determine the level of training security officers should receive to accomplish their objective of protecting the business environment. The potential legal bases include (1) security officers with citizen powers; (2) security officers with special legislatively authorized power; and (3) security officers who are also police officers. In the case of security officers working under the authority vested in them through state legislation or local ordinances, their legal authority is the same as that of public law enforcement officers. However, in most instances, particularly in private enterprise, private security personnel operate in the capacity of ordinary citizens. Therefore, the focus of this section will be on citizens' legal powers.

Under common law every citizen, like the law enforcement officer, has a right to make an arrest. A private citizen can make an arrest for a criminal offense without a warrant if the arrested person has committed a felony in his/her presence or if the arrested person has committed a felony offense outside the presence of the citizen but the arresting person has reasonable cause to believe that a felony has been committed. The scope of a citizen's arrest power is similar to that of a law enforcement officer. However, a citizen's arrest is always made at the arrestor's own risk. That is, if the arrest proves to be unlawful, the arrestor is exposed to the risk of criminal or civil liability. A private police officer is subject to these limitations and must balance the need to protect the interests of his employer with the need to avoid making false arrests.

Many states do not authorize citizens' arrests for misdemeanors. Among those states that do have such provisions, the rules regarding misdemeanor arrests are not uniform. Some state statutes are narrow and limit misdemeanor arrests to "public offenses," which refers to disturbing the public peace or violating the public order. In most states, however, a private person may arrest one without a warrant who commits a misdemeanor in his presence.

In addition to the provisions of various statutes on misdemeanor arrests, some states provide special legislation enabling merchants and their agents to deal with shoplifters and other offenders. It is clear that these statutes have originated from the need to prevent the large losses that occur each year in this industry. Once again, there is no uniformity in these statutes.

The amount of force a private citizen or a government officer can use in making an arrest depends on the type of offense and the status of the arresting person. A general rule is that the amount of force used to arrest a person cannot exceed the extent of resistance offered. Again, if the arrest is for a felony offense, the authority of a private citizen is that of a law enforcement officer.

Regarding searches and seizures, the Fourth Amendment guarantees every citizen "to be secure in their persons, houses, papers." The amendment, however, only protects against intrusions from governmental officials, not from private citizens. Therefore, if evidence is seized from a suspect without any official knowledge, or without collusion with a law enforcement officer, the evidence is admissible in a prosecution and does not violate the Fourth Amendment. This is not to imply that a private citizen can seize evidence from any person at any time with impunity. Persons who enter private premises without authority or improperly seize the property of others may be subject to civil liability. Furthermore, one may be guilty of violating a criminal law and may be subject to prosecution for unauthorized entries and seizures that are not consensual. If a private citizen is in any way acting as an instrumentality of the police, or the police have knowledge of the citizen's action, there is a good possibility that the exclusionary rule will apply in any future prosecution and the evidence seized will be suppressed.

Thus, when a private security officer working in the capacity of a private citizen seizes evidence, even if the evidence is seized unlawfully, such evidence can be used for prosecution. However, if the security officer is given legal status through the states' required licensing or deputation process, the security officer would lose his status as a private person and illegally obtained evidence would be inadmissible in the court. This does not rule out the possibility, however, that a private security officer could also be sued for illegally obtaining evidence from a suspect. In general, the most conservative approach is to abide by the rules that apply to the public law enforcement officer. This also helps make the case that the private officer has acted in a professional manner (i.e., like a public law enforcement officer). Abiding by the constraints and requirements of public law enforcement will avoid any mistakes that might jeopardize the case.

It is clear that public law enforcement officers have a right to search persons upon a lawful arrest, but the private security officer may enjoy a broader privilege to search beyond the immediate suspect. What about searching employees who are not arrested? Can a security officer search employees' lockers or desks on suspicion of some misconduct? These questions are significant in view of current concerns about use of drugs in the workplace and employee theft. Generally, employers reserve the right to search employees' lockers or desks either as a preemployment condition or as post-employment consent to search. In some instances, employers have duplicate keys to lockers and desks. Where there is no reasonable expectation of privacy, that is, the employee does not enjoy the privilege of calling the space his own; the employer, through the security personnel, generally reserves the right to examine the contents at any time.