United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING DEFENDANT'S MOTION TO
SUPPRESS (ECF No. 9)
MATTHEW F. LEITMAN UNITED STATES DISTRICT JUDGE.
On
August 6, 2018, two private security guards stopped Defendant
Deangelo Talton, seized a firearm from him, and turned the
firearm over to police. Talton is now charged with being a
felon in possession of a firearm. (See Indictment,
ECF No. 1.) Talton has moved to suppress the firearm on the
ground that the guards seized it in violation of the Fourth
Amendment. (See Mot. to Suppress, ECF No. 9.)
Because the Fourth Amendment does not apply to the seizure by
the private security guards, Talton's motion is
DENIED.
I.
FINDINGS OF FACT
The
Court held an evidentiary hearing on Talton's motion to
suppress. Based upon the testimony and other evidence
presented at the hearing, the Court makes the following
findings of fact:
1.
Evergreen Regency Townhomes (“Evergreen”) is an
apartment complex in Flint, Michigan with more than 300
units. (See Mot. to Suppress H'rg Tr. at 21, ECF
No. 19, PageID.126.[1])
2.
Evergreen is a “high crime area.” (Id.
at 28:19-25, PageID.133.) The common offenses at Evergreen
involve drugs, guns, prostitution, and gang activity.
(See Id. at 28:19-30:1, PageID.133-35.)
3.
Hi-Tech Protection (“Hi-Tech”) is a private
security guard agency. (See License, ECF No. 15-3.)
It is owned by Timothy Johnson. (See Mot. to
Suppress Hr'g Tr. at 161:11-12, ECF No. 19, PageID.266.)
4.
Hi-Tech operates under a Security Guard Agency License (the
“License”) issued by Michigan's Corporations,
Securities and Commercial Licensing Bureau (the
“Bureau”) - an entity within Michigan's
Department of Licensing and Regulatory Affairs. (See
License, ECF No. 15-3.) The License is issued in the name of
Hi-Tech and Johnson. (See id.) The Bureau issued the
License to Hi-Tech and Johnson pursuant to Michigan's
Private Security Business and Security Alarm Act, Mich. Comp.
Laws §§ 338.1051, et seq.
5.
Hi-Tech's security guards are organized in quasi-military
ranks, similar to a police department. (See Mot. to
Suppress Hr'g Tr. at 60:7-11, ECF No. 19, PageID.165.)
6. In
August 2006, Evergreen entered into a contract with Hi-Tech
(the “Contract”). (See Contract, ECF No.
15-4.) At that time, Johnson was a sergeant with the Flint
Police Department. (See Id. at PageID.96.)
7. The
Contract called for Hi-Tech to provide “patrolling and
law enforcement services” for Evergreen. (See
id.) For purposes of Talton's motion to suppress,
the relevant provisions of the Contract are as follows:
• “Patrol officers to be armed and in uniform at
all times.” (Id. ¶ 1.)
• “Carried equipment to include all such devices
and tools customary of a law enforcement officer (i.e.
sidearm, handcuffs, radio, etc.).” (Id.)
• “All officers will carry one or more
communication devices to ensure direct communication with
site management and outside law enforcement agencies (i.e.
local fire and police, emergency medical service,
etc.)” (Id.)
• “Patrol officers to provide crime prevention
services to management and tenants alike; make arrests of
criminals caught committing crimes on property; respond to
emergency situations and dispatch emergency services as
needed; and be available to provide testimony against
residents for criminal offenses or disturbances relevant in
the course of related eviction proceedings. Patrol officers
to be proactive in [] enforcement of narcotics and
trespassing.” (Id. ¶ 4.)
• Johnson “will serve as the primary contact and
security coordinator with [Evergreen] and will be personally
active in patrols (minimum of 5 hours per week), timely
incident responses and follow-up investigations, and other
required actions of this contract.” (Id.
¶ 3.)
• “A fee of $1, 400.00 per month will be paid to
cover [Hi-Tech's] expenses associated with Sgt.
Johnson's personal involvement in patrols of the
property and attendance at the weekly meeting, performing
resident background screening checks, confirmation of
[Evergreen's] ‘911' call volumes, and other
similar special projects. Fee subject to cancellation should
[Evergreen] feel[] Johnson is not personally involved in
performing the above additional duties.” (Id.
¶ 10(c), PageID.98; emphasis in original.)
8.
Pursuant to the Contract, Hi-Tech has been providing security
services to Evergreen since August 28, 2006. (See
Id. at PageID.96.) Hi-Tech was providing such services
on August 6, 2018. By that time, Johnson had become the chief
of the Flint Police Department. (See Mot. to
Suppress Hr'g Tr. at 161:13-14, ECF No. 19, PageID.266.)
9.
While on duty at Evergreen, Hi-Tech security guards do not
have the ability to run a Law Enforcement Information Network
(LEIN) check on suspects, are not allowed to place suspects
in their vehicle for transport to a police facility, are not
permitted to write tickets for civil infractions, and cannot
bring criminal charges against suspects. (See Id. at
31, PageID.136.)
10.
When Hi-Tech security guards encounter a suspect in
possession of a weapon or contraband, their general procedure
is to confiscate the item, detain the suspect, and call the
Flint Police Department to come to Evergreen to take custody
of the suspect. (See Id. at 31-33, PageID.136-39.)
11.
Hi-Tech's guards contact the Flint Police Department by
calling 911 on their personal cell phones. (See Id.
at 32:1-6, 63:1-5, PageID.137, 168.) The guards do not have a
seven-digit direct-access telephone number for any person or
unit at the Flint Police Department. (See Id. at
32:7-9, PageID.137.) And the two-way radios carried by
Hi-Tech security guards do not connect to the Flint Police
Department. (See Id. at 62:10-16, PageID.167.) At
times, law enforcement officers from the Genesee County
Sheriff's Department and/or the Michigan State Police
will respond to 911 calls placed by Hi-Tech security guards.
(See Id. at 32:13-20, PageID.137.)
12.
Once Hi-Tech security guards turn a suspect over to the
police, the matter is out of their hands. (See Id.
at 33:17-19, PageID.138.) Hi-Tech's guards do not make
decisions about whether to seek charges and/or prosecute a
suspect. (See Id. at 120:6-9, 139:16-22, PageID.225,
244.)
13.
Edward Smith and DeShawn Perry are private security guards
employed by Hi-Tech. (See Id. at 8:21, 103:13, ECF
No. 19, PageID.113, 208.) On August 6, 2018, Smith was a
lieutenant with Hi-Tech. (See Id. at 11:25,
PageID.116.) ...