The opinion of the court was delivered by: Crowley, District Judge.
MEMORANDUM OPINION AND ORDER
Ronald Dansberry was indicted for using the United States mails
to receive unemployment benefits under the name of Satterfield,
in violation of 18 U.S.C. § 1341. Pursuant to Fed.R.Crim.P. 41(f)
he filed a motion to suppress all evidence seized incident to his
arrest, contending that the search was unwarranted and
unreasonable under the Fourth Amendment.
Dansberry was arrested by Elmer Brown, a Chicago policeman who
also works part-time as a security guard for Sears Department
Store. Brown made the arrest after watching Dansberry and his
companion Collins, both black men, shopping in the stereo
department. Collins selected a stereo set and attempted to
purchase it with a credit card bearing the name of John Martin
Prpich. After Collins signed Prpich's name on the sales slip, the
salesman alerted Brown that something was wrong with the card.
While Collins completed the sale, Brown checked with the Sears
Central Credit Office and discovered that the card had been lost.
Brown then approached Dansberry and Collins and asked them to
come to the security office where they were searched. Brown
searched Dansberry's wallet and found identification in the name
of Satterfield as well as Dansberry.
The Chicago police were called to the security office. After
Collins told the police that Dansberry had found the card, both
Collins and Dansberry were arrested for violation of the Illinois
Credit Card Act, 1979 Ill.Rev.Stat. ch. 121 1/2, § 601 et seq.
Brown told the police officers about Dansberry's dual
identification and suggested name checks at this time. It was
discovered that a battery warrant was outstanding and Dansberry
was taken into custody. The cards were left on the desk, and
although the Chicago Police testified that a search was not made
until they finally arrived at the police station, I find that the
products of Brown's search were given to the responding officers
when they arrived at the Sears store. This evidence led to
Dansberry's indictment for fraudulently receiving unemployment
At issue is whether Brown was acting in the capacity of a
police officer or a private security guard at the time of the
arrest and search. The government, relying on People v.
Luetkemeyer, 74 Ill.App.3d 708, 30 Ill. Dec. 462, 393 N.E.2d 117
(1979), contends that although Brown is a police officer, he was
acting in the capacity of a private security guard when he
searched Dansberry. It claims that, as a private party, Brown is
not subject to fourth amendment proscriptions. The government
contends that Brown was not acting as an instrument or agent of
the state because: (1) Brown was not on duty at the time of the
search; (2) Brown was not acting under a directive from the
police department; (3) the detention, arrest and search were
undertaken for Sears' benefit; (4) any conversations Brown may
have had with the Chicago police informing them of Dansberry's
dual identification and suggesting a name check were not
inconsistent with his status as a private security guard; and (5)
at no time during the incident did Brown identify himself as a
police officer or draw his weapon. Further, the government
contends that even if Brown were acting in his official capacity
there was probable cause to make the arrest and asserts that a
warrantless search incident to a lawful arrest does not violate
the fourth amendment.
It is beyond dispute that searches conducted by private
individuals for purely private purposes are not within the
purview of constitutional regulation. United States v. Lamar,
545 F.2d 488 (5th Cir.) cert. denied, 430 U.S. 959, 97 S.Ct. 1609, 51
L.Ed.2d 810 (1977). The test for determining Brown's status is
whether, in the light of all the circumstances, Brown must be
regarded as having acted as an instrument or agent of the state.
Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29
L.Ed.2d 564 (1971).
The government's argument, that since Brown was not acting in
response to a government directive and a government agent did not
assist in the search he was not acting in his official capacity,
is not persuasive. At the time he made an arrest, Brown had the
capacity to exercise the powers invested in him by the Police
Department. See Rules and Regulations of Chicago Department of
Police, IV(c)(1) and Rule V(21). Brown testified that he was
aware that as a police officer he had the power to effect an
arrest at any time. Since under Illinois law Brown had the
obligation and the power to make the arrest, Brown was acting as
a government official whose conduct comes within the purview of
the fourth amendment.
People v. Luetkemeyer, 74 Ill.App.3d 708, 30 Ill.Dec. 462,
393 N.E.2d 117 (1979) does not compel a different result, for that
case is inapplicable. In Luetkemeyer, the search was conducted by
Bunting who, although a Special Deputy Sheriff and Captain of the
Fire Protection District, had been invited onto the defendant's
property solely in his capacity as a repairman. At the time of
the search Bunting had not served as a Deputy Sheriff for several
years and could not do so without a specific request from the
Sheriff. In contrast, Brown had the power to exercise his law
enforcement functions at the time of the arrest.
Acting in the capacity as police officer, Brown's warrantless
search was valid if it was made incident to a lawful arrest. The
arrest was lawful if there was probable cause to believe
Dansberry committed any crime. Beck v. Ohio, 379 U.S. 89, 85
S.Ct. 223, 13 L.Ed.2d 142 (1964). What is reasonably probable is
determined in the light of the particular facts of each case.
United States ex rel. Burbank v. Warden, Illinois State
Penitentiary, 535 F.2d 361 (7th Cir. 1976), cert. denied,
429 U.S. 1045, 97 S.Ct. 750, 50 L.Ed.2d 758 (1977).
It is well settled that neither mere presence at the scene of
the crime, United States v. Gaston, 620 F.2d 635 (7th Cir. 1980),
or mere suspicion of criminal conduct, United States ex rel.
Burbank v. Warden, Illinois State Penitentiary, 535 F.2d 361 (7th
Cir. 1976), cert. denied, 429 U.S. 1045, 97 S.Ct. 750, 50 L.Ed.2d
758 (1977), gives probable cause to arrest. The record here does
not contain sufficient facts to establish probable cause. Unlike
the arresting officer in Burbank, Brown had no previous
information regarding the suspect. Nor was there any
corroborating evidence besides mere presence to constitute
probable cause as there was in Gaston. Brown's suspicions were
wholly subjective. Thus, the arrest of Dansberry for violation of
the Illinois Credit Card Act was not justified and, accordingly,
the search was unconstitutional.
Moreover, assuming, arguendo that Brown was acting as a private
security guard, it is necessary to consider if he had the
authority to arrest Dansberry and whether this authority was
exceeded in the search for and seizure of evidence. Under the
Retail Theft Act, 1979 Ill.Rev.Stat. ch. 38, § 16A-5*fn1 a
private security guard has the power to detain a customer
suspected of unlawfully taking merchandise. The statute permits a
merchant to request identification and to make reasonable
investigation regarding the merchandise, and to surrender the
suspect to the custody of a police officer. The statute does not
grant authority to search.
Determination of whether a particular search is prohibited
requires balancing the public interest against the fourth
amendment interest of the individual. United States v.
Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116
(1976). In making this determination courts have focused on three
factors: the public necessity for the search, the efficacy of the
search and the extent of the intrusion upon the individual.
Chenkin v. Bellevue Hospital Center, 479 F. Supp. 207, 213
When public safety demands it, the strictures of the fourth
amendment have been relaxed in order to protect the public from
the threat of physical harm. Thus, the constitutionality of
searches at airports, national borders and hospitals have been
upheld. See United States v. Henry, 615 F.2d 1223 (9th Cir.
1980); United States v. Carter, 592 F.2d 402 (7th Cir. 1979) and
Chenkin v. Bellevue Hospital Center, 479 F. Supp. 207 (S.D.N Y
1979). Unlike those situations, however, where the public
interest in preventing terrorism is strong, the public interest
in preventing the theft of retail merchandise is not so great
that it demands a relaxation of fourth amendment protection. Here
the balance is weighed heavily in favor of protecting the rights
of the individual. The interest of the merchant in detaining a
customer suspected of unlawfully taking merchandise is
sufficiently served by the right to detain the suspect until a
police officer arrives. The ...