Exclusion Rule in the Private Sector

The following essay was written for educational purposes only and is not any form of legal guidance or advice. Seek the representation of a vetted attorney for legal assistance.

In public law enforcement, there are several key issues for the suppression of evidence in all types of cases. From an illegal search to illegal seizures or even illegal statements that may cause the downfall of a case. The United States Constitution sets forth the right for every American to be free from government intrusion into their private space or to seize their property without just cause. The 4th Amendment is arguably the most challenged legal motion in U.S. courts but when it comes to private security, where is the line drawn? These two separate examples will show what could be the most challenging for private security when it comes to the 4th Amendment and private security and how case law has ruled on them in the past.

Miranda Warnings for Private Security

In 1966, the U.S. Supreme Court heard the case of Miranda v Arizona and ruled that an interrogation by law enforcement where the person being interrogated was in custody needed to be advised of their rights in regards to self-incrimination (Miranda v Arizona, 1966). This set a precedence in law enforcement that forever changed the landscape for how the public police interrogated and even spoke with individuals whom they were interviewing about a crime.

However, there wasn’t much as far as case law in regards to private security until 1968 and the case of U.S. v Antonelli. In this case, Antonelli, who was a dock worker in New York City, was trying to exit Pier 90 when he was stopped by a security guard (U.S. v Antonelli, 1970). The guard requested he open his trunk, which he did. In his trunk were thousands of dollars of imported goods likely stolen from shipping containers. During the conversation, Antonelli stated the security officer over and over to have the security officer just lie about the incident and say he found them at the end of the pier (U.S. v Antonelli, 1970). Antonelli basically confessed to the theft to the security officer while being stopped and “in custody”.

At trial and on appeal, Antonelli tried to assert that due to the security officer never reading him his Miranda Rights and the fact that he was in custody, that the confession and seizure should be thrown out as it was “fruit of the poisonous tree” (U.S. v Antonelli, 1970). The court ruled a security guard is no different than a private citizen and being there was no government intervention during the interview or search then there was no need for Miranda Warning to be issued (U.S. v Antonelli, 1970). The court cited in their opinion Burdeau v McDowell, which states the origin of the 4th Amendment “clearly show that it was intended as a restraint upon the activities of sovereign authority, and was not intended to be a limitation upon other than governmental agencies” (Burdeau v Mcdowell, 1921, p. 12). As mentioned in Antonelli, “The federal exclusionary rule enforcing adherence to the intendment of the Fifth Amendment, like the Fourth Amendment, has long been construed as ‘a restraint upon the activities of sovereign authority’” (U.S. v Antonelli, 1970, p. 5)

Since Miranda has been in place it would appear it has been there with the intention for public police. As for other 4th and 5th amendment activities, private police are looked at as private citizens. I see this is an issue due to the rise in private security forces patrolling more areas where they will come into contact with more citizens. More cases will be challenged and further case law will be heard and made in the realms of the seizure of people and interview/interrogation.

Stop and Frisk

With the numbers of private security officers growing rapidly to over 1.1 million nationwide according to the Department of Labor, issues on the subject of Terry Stops or “Stop and Frisk” as they are commonly known will become more common. For public police stop and frisk is vital when it comes to keeping officers safe as well as finding evidence of criminal belongings. The U. S. Supreme Court Ruled in 1968 that a police officer may search a person without a warrant if that officer has a reason suspicion that “that the person has committed, is committing, or is about to commit a crime and has a reasonable belief that the person “may be armed and presently dangerous.” (Terry v Ohio, 1968). However, when it comes to private security, we have to put it through the eyes of “do the private security guards fall under the same requirements as public police officers?”. One case that took this head on was U.S. v Day in 2010.

Day was at an apartment complex with a friend when he got into an argument and brandished a gun. Two security officers observed this and responded drawing their weapons and ordering Day to comply which he did. Upon taking day into custody a “pat down” was conducted and nothing noticeable was found as what would be met in a terry stop. However, the private security officers continued to question Day while he was handcuffed and asked him about the gun and if he had anything illegal on him which he stated he had marijuana on him.

In the appeals court, they suppressed both the marijuana and firearms statements and the marijuana due to the fact the court believed the private security officers were working on behalf of the government and should have read Day his Miranda warnings and an unconstitutional search was conducted for the marijuana. The ACLU of Virginia assisted in the appeal and stated uniforms and equipment along with the state regulating the private security officers all made the officers a part of the government (ACLU, 2009).

However, the government appealed that decision to the District court which overturned that ruling stating that there was no evidence to support the private security officers were acting on behalf of the government and they were acting as private citizens (U.S. v Day, 2010). They go on to state in their opinion “The Fourth Amendment, however, does not provide protection against searches by private individuals acting in a private capacity United States v. Jacobsen, 466 U.S. 109, 113 (1984)” (U.S. v Day, 2010).


Both of these issues are similar in the fact they share the same test to see if evidence will be excluded. Did the private security officer act as an agent of the government or did they act as a private citizen? That seems to be the major question in all of the case law. With the security industry growing at a rapid pace and over 52 billion being spent in the industry while over 30 billion being spent in public law enforcement (ACLU, 2009), it is clear that more of these kinds of cases are going to come up in the future.



ACLU. (2009). Case Brief U.S. v Day. Richmond, VA. Retrieved from https://acluva.org/wp-content/uploads/2010/02/USvDayAmicus.pdf

Burdeau v Mcdowell, 256 U.S. 465 (United States District Court for the Western District of Pennsylvania June 1, 1921). Retrieved from https://supreme.justia.com/cases/federal/us/256/465/case.html

Miranda v Arizona, 384 U.S (U.S. Supreme Court June 13, 1966).

Sable, M. (1972). Miranda Warnings in Other than Police Custodial Interrogations. Cleveland: Cleveland State Law Review.

Terry v Ohio, 392 U.S. 1 (U.S. Supreme Court June 10, 1968).

U.S. v Antonelli, 434 F.2d 335 (United States Court of Appeals, Second Circuit November 24, 1970). Retrieved from https://law.resource.org/pub/us/case/reporter/F2/434/434.F2d.335.220.34489.html

U.S. v Day, 08-5231 (United States 4th Circuit District Court of Appeals January 8, 2010). Retrieved from http://www.ca4.uscourts.gov/Opinions/Published/085231.P.pdf


Combating Workplace Violence with Common Sense Approaches

Workplace violence in America is a serious issue to the Security minded employee and the Security Manager. From active shooting situations, domestic violence, stalking, former employee confrontations, and acts with the intent of theft or terrorism are just a few examples of violence that often occurs. There has been a lot of research done in the field of workplace violence in the past, and a lot of that research focuses on violence in the forms of criminal activity such as robberies. Convenient stores and hotel/motel establishments and their relation to workplace violence and employees becoming victims of criminal acts is studied thoroughly. However, considering the corporate atmosphere and the inside environment of a firm and how that relates to the threat and risk of workplace violence is also important.

Although convenient stores and companies that see more of the public and handle live cash deal more with workplace violence, this article will cover the corporate or company where its employees are closely tied together for extended periods of time every week.

The interworking’s of an office is organized much like the different classes of society in America based on social hierarchy. You have the upper class in the executives, the middle class (supervisors), and the lower level employees. Research has shown that employees in the lower levels of the “work society” are more at risk of being the offender of workplace violence. This is due to higher level employees having more resources to get assistance and deal with stress as well as being more socially acceptable due to their career. It is shown throughout history, and in research, the environment in which employees are around is a direct contributor to violence. It is the job of general management to make the environment suitable and gain the most productivity for a company. However, it is the job of the security manager to make the environment ideal for the protection of all assets including the employees of the company.

Environmental Design

Environmental design plays a vital role in the safety and security of employees and all assets of a company. From the cash on hand to information technology. Deterring criminal activity doesn’t start at the entrance to the building. The goal is to make an offender anxious and paranoid, to play psychological games with them using only the environment they are surrounded in. If they have reached the front doors with no anxieties, they have already come to the point of no return. Whether you are responsible for a single-story office building, an entire high-rise office building or one floor of a high-rise, it all boils down to manipulating the offender’s mindset, so they are stressed and anxious about entering the building for fear of being seen or captured.

Behavior Characteristics of Offenders

Potential offenders come in all shapes, sizes, races, religions, and profiles. However, there are common characteristics they do share. Research shows barriers and access points do in fact influence offenders that are attempting an attack. Highly trafficked areas also have this effect and give more anxiety to an offender. Most offenders do not act spontaneously; their decision is built up over a period or a cooling period. If you take for example the phrase of employee “going postal”, typically they aren’t happy and loving life and then one day everything changes and all the sudden experience a fit of psychosis and “go postal”. There is always a history of behavior patterns in both their personal life and their work life. Although their personal life will typically show more erratic behavior, there are still cues in their work life that can be seen.

We all can notice behavior that is not normal. Anyone who has studied body language knows that built into us is a system that detects body language cues unconsciously from others, so we are aware when someone’s sad (frown) or when someone is mad (crossed arms, the brow is tight, and lips are clinched), etc. Well, it works for social cues as well; people will have that gut feeling when someone they know just isn’t acting right. They aren’t talking as much. One big signal is when someone has lost the coping skills to cope with everyday stresses. Primarily work related stresses like a boss getting mad at them or other employees bullying them. They start to become physically ill, psychotic, self-destructive or violent.

History plays a huge part in determining one’s mental status as it relates to if they are a threat. If intelligence comes across a security managers desk about a potential threat, it would be imperative for the manager to investigate the changes to the individual’s history of behavior between the past and present and see the different cues and decide. However, a security manager is not a licensed psychologist and must follow all appropriate employment laws so seeking advice from the human resource department is a must for any detailed findings or investigation. Everything must be kept confidential from any non-essential employee to save the company from any potential liability claims during an investigation.

Domestic Violence and Stalking

It is important to know that internal offenders or ex-employees are not the only kinds of threats to workplace violence in office buildings. Domestic violence is a serious issue in the United States, and all too often it doesn’t stay in the home. Domestic violence and stalking related incidents occur often, and even homicides relating to domestic violence/stalking occur at the workplace. It is imperative that every company has policies regarding the safety and security of their employees that fit this scenario. CPTED should be helpful in assisting with deterring this. However, policies do need to be setup to make sure employees feel safe. Not only for their benefit but also for the benefit of the company, an employee that feels safe during a horrific time at home is going to perform better at work.

One policy that stands out is the Open Door Confidential Policy that allows any employee a direct line to the security manager to discuss issues such as domestic violence and stalking, injunction/restraining Orders, child issues, and information that can be pertinent to keeping the workplace safe for the individual employee. This way the security manager knows what is going on if the said person shows up at the office building and can handle to situation properly instead of being left in the dark. This program deals with a lot of trust and is extremely sensitive and calls for a security manager that can be trusted with sensitive material.

Train All Employees Not Just Security Employees

Training and repetition are vital to success in any field to be the best. Whether it be sports, academics, or security.  In law enforcement, you are continuously put through the paces of defensive tactics so that you build muscle memory of maneuvers when dealing with violent subjects. In academics, you flip through note cards to try and memorize subject matter for a test. These practices need to be taken to the security industry and used when it comes to preparing not only the security staff but also other employees as well.

The security staff needs to know what to do in every emergency. They are the life boat of the company during a time of panic. However, if the other employees have no idea what to do during an active shooter situation or during a natural disaster situation it can lead to fatal results. A proper program needs to be in place created by a committee of security experts and other management, facility, and human resources employees to make sure training is appropriate, and the training is conducted. Signage needs to be posted in common areas like the break rooms that show in detail what to do situations that may arise. Policies such as the Open Door Confidential Policy mentioned above in the domestic violence and stalker section need to be widely distributed to new hires and posted in common areas as well as employees need to have trust in that program that it will all remain confidential. This signage will remind employees about the programs and keep reminding them daily of what to do if an emergency ever occurs. The signage needs to be well thought out, so it does not hurt the employee’s mental state and always remind them of the dangers of workplace violence. Taking the time to sit down with others, a marketing staff if you have one, and thinking about how to create a sign that will make employees remember but not give them shock is key.

By adopting policies and conducting training that are proactive in dealing with employees who show behavioral cues that something may be wrong can also lower the risk of workplace violence. Policies for employees to come forward with personal problems can lead to security personnel stopping a threat before an incident can happen. And better training for the staff can make sure that if an incident every were to happen, employees would have a better chance at remaining safe because they would know what to do. By mixing these concepts into a security foundation will make for a more secure environment for employees, which will make for a more profitable business and less loss in the long run.