Opinion
Docket No.: CR13001544-00
10-04-2013
RE: Commonwealth v. Cameron J. Rollins
Ms. Alexandra P. Vakos Assistant Commonwealth's Attorney 800 East City Hall Avenue, Suite 600 Norfolk, VA 23510 Mr. Caswell W. Richardson Assistant Public Defender Norfolk Public Defender's Office 125 St. Paul's Blvd., Suite 600 Norfolk, VA 23510
COPY
MARY JANE HALL JUDGE Ms. Alexandra P. Vakos
Assistant Commonwealth's Attorney
800 East City Hall Avenue, Suite 600
Norfolk, VA 23510 Mr. Caswell W. Richardson
Assistant Public Defender
Norfolk Public Defender's Office
125 St. Paul's Blvd., Suite 600
Norfolk, VA 23510 Dear Counsel:
This matter came before the Court on Monday September 30, 2013 for an evidentiary hearing on Defendant's Motion to Suppress. Defendant moves to suppress statements made in response to questions asked by a Target Loss Prevention Officer in the presence of Norfolk Police Officer A.J. Stevenson. Defendant made the statements without first being advised of his Miranda rights. After due consideration of the facts and of the relevant case law, the Motion to Suppress is hereby DENIED.
FACTUAL BACKGROUND
Defendant entered the Target retail facility at 1245 North Military Highway in the City of Norfolk on February 12, 2013. Target Loss Prevention Officer Kwame Johnson testified that he recognized Defendant from witnessing him steal cell phones from the store earlier in the week. He watched Defendant and observed him again opening cell phone boxes and hiding the phones on his person. Target personnel contacted the Norfolk Police Department; Norfolk Sergeant R. Lewis responded, placed Defendant in handcuffs, and escorted him to the store's Loss Prevention Office. He did not read Defendant his Miranda rights. When Norfolk Police Officer Stevenson arrived at the store shortly after Defendant was detained, he and Sergeant Lewis switched out the handcuffs on Defendant; and Sergeant Lewis left. Officer Stevenson did not read Defendant his Miranda rights. He asked the Defendant for his name, address and social security number. He sat with Defendant in the small security office while one of the Loss Prevention Officers printed out the surveillance photographs and stolen merchandise information that Officer Stevenson needed to file charges against Defendant.
While Defendant was seated in this small room, handcuffed and next to a uniformed police officer, the Target Loss Prevention Officer asked Defendant what he'd done with all the stolen cell phones; and Defendant answered that he'd sold them. Officer Stevenson testified that he heard this conversation between the store employee and Defendant but that he had neither asked the store employee to interrogate Defendant nor knew that they were going to do so. The store employees likewise testified that they asked questions to Defendant as part of their own employment duties and not because the Norfolk police asked or expected them to do so.
ANALYSIS
The Virginia Supreme Court has held that Miranda applies only to custodial interrogation, or "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Dean v. Commonwealth, 209 Va. 666, 166 S.E.2d 228 (1969)(citing Miranda). The Virginia Supreme Court has interpreted the Miranda and Dean decisions to apply to statements only resulting from "police interrogation, and by police interrogation is meant questioning initiated by law enforcement officers." Williams v. Commonwealth, 211 Va. 609, 611, 179 S.E.2d 512, 513 (1974). Both federal and state courts have almost uniformly held that neither private citizens nor private security personnel are required to give Miranda warnings to suspects held in custody. See, e.g. Jones v. Commonwealth, 214 Va. 723, 204 S.E.2d 247 (1974); Williams v. Commonwealth, 211 Va. at 611; United States v. Antonelli, 434 F.2d 335, 336 (2nd Cir. 1970); State v. Kelly, 113 N.J.Super. 169, 273 A.2d 371, 372 (1971); People v. Frank, 52 Misc.2d 266, 275 N.Y.S.2d 570, 572-73 (1966). The rationale of these decisions was well-stated in State v. Bolan, 27 Ohio St.2d 15, 271 N.E.2d 839 (1971):
[T]he duty of giving 'Miranda warnings' is limited to employees of governmental agencies whose function is to enforce the law, or to those acting for such law enforcement agencies by direction of the agencies; . . . it does not include private citizens not directed or controlled by a law enforcement agency, even though their efforts might aid in law enforcement.Id., 271 N.E.2d at 842.
Because the Target store employees are not government employees and had no duty to advise Defendant about his Miranda rights, Defendant's statements would only be suppressed if the Court found that in this particular case, they were acting as agents of law enforcement. Defendants have the burden of proving an agency relationship between the Government and the private individual whose actions have been challenged. United States v. Day, 591 F.3d 679, 683 (4th Cir. 2010). This determination requires examination of the degree to which the Government participated in the private party's activities and must be made in light of all the circumstances. Id. (internal quotations omitted) (citing Skinner v. Ry. Labor Executives' Ass'n, 489 U.S. 602, 614 (1989)). The Day Court recognized two primary factors to consider: 1) whether the government knew of and acquiesced in the private individual's challenged conduct; and 2) whether the private individual intended to assist law enforcement or had some other independent motivation. Id. (internal citations and quotation omitted).
Officer Stevenson knew that the Target security officer was questioning the Defendant because he was sitting right next to him, but he did not know in advance that the employee planned to question him. The mere presence of a police officer in the room does not rise to the level of governmental acquiescence with Target's interrogation. As the Virginia Supreme Court indicated in Wansley v. Commonwealth, voluntary statements made to private citizens are admissible despite the presence of police or government officials: "None of the Supreme Court cases cited by counsel, or any other Supreme Court case of which we are aware, holds that the Constitution precludes evidence of an admission made by a juvenile or adult under those circumstances." Wansley v. Commonwealth, 210 Va. 462, 469-70, 171 S.E.2d 678, 683 (1970) (statements made while in police lockup in presence of a parole officer in response to question from Defendant's mother deemed admissible).
The Day Court reversed a trial court's determination that two security guards acted as agents of the government, notwithstanding the evidence that the guards were subject to state regulatory schemes, were vetted and trained by the state, continued to be subject to state disciplinary action, had the ability to make arrests, and were granted authority to carry weapons by the state. Day 519 F.3d at 684. Evidence of the relationship between Target Loss Prevention Officers and the Norfolk Police falls far short of these circumstances present in Day.
The primary goal of the Target employees was to protect the private property of the Target store and to protect Target's interests. While Target does require that employees call the police when shoplifting occurs, "the cooperation ... given to the police was merely coincident to the performance of their private duties." Mier v. Commonwealth 12 Va. App 827, 833, 407 S.E.2d 342, 346 (Va. Ct. App. 1991).
Day also stands for the premise that "'even if the sole or paramount intent of the security officers had been to assist law enforcement, . . . such an intent would not transform a private action into a public action' absent a sufficient showing of Government knowledge and acquiescence under the first factor of the agency test." Day 591 F.3d at 686 (internal citations omitted). Because the Court has determined that the Commonwealth did not know of or acquiesce to the Target Loss Prevention Officers' actions, Defendant cannot establish that the Target employees were acting as government agents even if the second factor alone is satisfied.
CONCLUSION
For these reasons, the Court denies Defendant's Motion to Suppress. An Order reflecting this decision is attached.
Sincerely,
/s/
Mary Jane Hall
Judge MJH/mc/dyl