©2012 Brian S. Batterton, Attorney, PATC Legal & Liability Risk Management Institute (www.llrmi.com)
Many law enforcement officers work some form of secondary employment while off-duty to supplement their income. In most cases, these law enforcement officers work with the approval of their agency, and they wear their official uniform. In circumstances such as this, the general rule is that these officers are typically considered acting in their official capacity as government officials when they use their law enforcement authority during secondary employment. However, there are exceptions to the general rule. On June 5, 2012, the Tenth Circuit Court of Appeals decided the United States v. Cintron [i] which serves to illustrate one of the exceptions to this rule.
The facts of Cintron, taken directly from the case, are as follows:
On April 18, 2011, Shawn Reed was working as a security guard at the OK Corral Club, a bar in Oklahoma City. Mr. Reed was also a part-time reserve officer for the Boley Police Department and had 27 years of law enforcement experience. He had worked off-duty security jobs for the past 20 years. Although the Boley Police Department knew of his work at the OK Corral Club, it was not involved in the arrangement of this employment.
When Mr. Reed worked at the OK Corral Club, he did not wear his police uniform or his badge. Instead, he wore a shirt that said “Security.” Mr. Reed also carried a firearm and a personal set of handcuffs.
On the night of April 18, 2011, Mr. Reed was working with the outside security team—a group that patrolled the parking lot area at the OK Corral Club. Mr. Reed testified at the suppression hearing that his supervisor told him that other security guards had seen “somebody that was flashing a gun or that they—had pulled their shirt up and they saw a gun while they [were] talking to some people.” His supervisor was concerned about the incident because, according to Mr. Reed’s testimony, “there [were] some people earlier in the night that had threatened to go get guns and come back and shoot some of the inside bouncers that had thrown them out.”
Mr. Reed testified that the only description his supervisor gave him was that the individual with the gun “[was] in a red Camaro” and was with other men “that were in a black SUV.” Around 3 a.m., Mr. Reed entered the parking lot to investigate. He observed three vehicles: a black SUV, a truck, and a red Camaro. Both doors of the Camaro were open. Mr. Reed approached the Camaro and looked inside to make sure no one was lying in the back seat.
Mr. Cintron then walked toward the Camaro and told Mr. Reed that it was Mr. Cintron’s car. Sometime during this encounter, Mr. Reed unholstered his weapon. When Mr. Cintron claimed the Camaro as his vehicle, Mr. Reed pointed his gun at Mr. Cintron. He instructed Mr. Cintron to step to the side and put his hands on the car.
Mr. Cintron complied with Mr. Reed’s requests. Mr. Reed proceeded to pat him down. He found a .380-caliber automatic firearm in Mr. Cintron’s waistband. Mr. Reed pulled the gun out of Mr. Cintron’s waistband and placed it behind him on the ground. Mr. Reed testified that, when he found the gun, Mr. Cintron said: “Hey man, I’ve just got that . . . because . . . I was picking up my sister and the last time that I was up here some guys jumped me.” Mr. Reed finished his patdown search and handcuffed Mr. Cintron.
When the head of outside security at the OK Corral Club learned of the situation, he called the Oklahoma City Police Department. While Mr. Reed and Mr. Cintron were waiting for the police to arrive, Mr. Cintron repeated his statement about why he had the firearm. He also stated that he had “a tail” on him.
Sergeant David Van Curen, a member of the Oklahoma City Police Department, was the first on-duty officer to respond to the scene. When Sergeant Van Curen arrived, Mr. Reed handed him the firearm and explained what had transpired. Sergeant Van Curen then secured and cleared the firearm.
Mr. Reed testified that during his conversation with Sergeant Van Curen, Mr. Cintron “jumped in on the conversation,” and repeated his explanation of why he was at the club and had the firearm. According to Mr. Reed, Mr. Cintron said, “Hey, you know, that’s it, man, that’s the only reason I got that and the only reason I’m up here is to get my sister.”
Sergeant Van Curen testified at the suppression hearing that after Mr. Cintron made this statement about the firearm, Sergeant Van Curen took off the handcuffs that Mr. Reed had applied, put on a different pair, and placed Mr. Cintron in a squad car. Sergeant Van Curen then performed a records check on Mr. Cintron to determine if he had a permit for the firearm. He discovered that Mr. Cintron was a convicted felon and that he had five outstanding city warrants. Sergeant Van Curen then told Mr. Cintron that he was under arrest. [ii]
Ultimately, Cintron was charged under federal law with a federal firearms violation. Cintron filed a motion to suppress the firearm and his statements. For the purpose of this article we will focus solely on Cintron’s motion to suppress the firearm. The trial court denied the motion and Cintron appealed to the Tenth Circuit Court of Appeals.
In order for Cintron to prevail on his motion to suppress, he must show that Mr. Reed (the off-duty officer/security guard), conducted an illegal detention under the Fourth Amendment and that illegal detention resulted in the discovery of evidence (the firearm). The detention would be illegal if it was not supported by reasonable suspicion of criminal activity or if the manner of the detention exceeded the permissible scope. However, in order for Cintron’s Fourth Amendment argument to apply, he must first show that the Fourth Amendment was implicated by Mr. Reed’s actions in this specific case.
Thus, the first issue to resolve was whether the Fourth Amendment applied to Mr. Reed, who was an off-duty police officer acting as a non-uniformed security guard at a bar?
In deciding this issue, the Tenth Circuit first examined the legal principals related to the issue. At the outset, they noted that:
Fourth Amendment protections do not apply against “private individual[s] not acting as . . . agent[s] of the Government or with the participation or knowledge of any governmental official.” United States v. Jacobsen, 466 U.S. 109, 113, 104 S. Ct. 1652, 80 L. Ed. 2d 85 (1984) (quotations omitted) [iii]
Further, Tenth Circuit observed that, in the United States v. Poe, they previously held:
When a private individual conducts a search not acting as, or in concert with, a government agent, the Fourth Amendment is not implicated, no matter how unreasonable the search. [iv]
Next, noting that it can be difficult at times to determine when an individual is acting as a private citizen or a government actor, the court examined various cases for guidance on this topic.
Here, the Tenth Circuit looked at two cases that are instructive in Cintron’s case. First, the court examined the United States v. Souza. [v] In Souza, the court considered two factors in determining whether a person acted as a private individual or a government actor. The court stated:
We have used the Souza test to decide whether a search by a private individual constitutes government action within the meaning of the Fourth Amendment. Under that test, we ask “(1) whether the government knew of and acquiesced in the intrusive conduct, and (2) whether the party performing the search intended to assist law enforcement efforts or to further his own ends.” Id. at 1201 (quotations omitted) [vi]
However, after examining this test, the court stated that it preferred the standard set forth in David v. City & County of Denver [vii] to be more applicable. In that case, the Tenth Circuit decided whether an off-duty officer was a state actor. The court stated:
In David, we explained that such a determination “rarely depends on a single, easily identifiable fact, such as the officer’s attire, the location of the act, or whether or not the officer acts in accordance with his or her duty.” Id. at 1353. “Instead [we] must examine the nature and circumstances of the officer’s conduct and the relationship of that conduct to the performance of his official duties.” Id. (quotations omitted). [viii]
The court then noted that, in David, they relied on two key factors from cases in the First and Seventh Circuits. The first factor considered was:
whether the actor, at the time in question, purposes to act in an official capacity or to exercise official responsibilities pursuant to state law,'” Id. (quoting Martinez v. Colon, 54 F.3d 980, 986 (1st Cir. 1995). [ix]
The second factor considered in David was:
whether the officer’s actions related in some way to the performance of a police duty.'” Id. (quoting Gibson v. City of Chicago, 910 F.2d 1510, 1517 (7th Cir. 1990)). [x]
The court then examined facts from Cintron’s case that are relevant to the tests from Souza and David. First, the court noted that the OK Corral Club hired and paid Mr. Reed for his security guard work at the club. Further, not all security guards at the club were off-duty police officers. Second, Mr. Reed was not wearing a police uniform, did not have his badge, and never identified himself as a police officer. Third, at the suppression hearing, Mr. Reed testified that he was working to further the interest of the club (security and safety) rather than those of the police department (enforcing criminal law). Fourth, Mr. Reed did not formally arrest Cintron; rather, Mr. Reed’s security supervisor called the local police department to “sort it out.”
Thus, based on the facts above, the Tenth Circuit held that under both the test from Souza and the test from David, Mr. Reed was acting as a private individual rather than a government official (police officer) and as such, the Fourth Amendment did not apply. Since the Fourth Amendment did not apply there was no need to address whether Mr. Reed’s conduct was reasonable under the Fourth Amendment.
Note: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.
[i] No. 11-6316, 2012 U.S. App. LEXIS 11308 (10th Cir. 2012 Unpub)
[ii] Id. at 2-5
[iii] Id. at 7-8
[iv] Id. at 8 (quoting United States v. Poe, 556 F.3d 1113, 1123 (10th Cir. 2009)
[v] 223 F.3d 1197 (10th Cir. 2009)
[vi] Id. at 9
[vii] 101 F.3d 1344 (10th Cir. 1996)
[viii] Id. at 9-10
[ix] Id. at 10