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