United States v. Talton

          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.) ...