Although a trial court said a security guard had “walked like a cop, quacked like a cop, and should be treated like a cop,” the North Carolina Court of Appeals ruled that the private guard was not acting on behalf of the state and therefore did not need reasonable suspicion to stop a man for drunken driving.
In State v. Weaver, the court held that the Fourth Amendment did not apply to the stop of Frederick Weaver’s vehicle in New Hanover County, because citizens only have constitutional protections against agents of the state, which according to the court the security guard was not.
Brett Hunter was a security guard employed by Metro Special Police and Security Services Inc. He was licensed under state law and was board certified in several areas, but not in DWI detection. Hunter wore a uniform, carried a firearm, drove a vehicle with red and amber lights, and his vehicle had the words “Metro Public Safety” written on its sides.
On April 20, 2012, Hunter was assigned to provide security for a townhome complex near the University of North Carolina-Wilmington in order to control loud noise, drinking, partying, and vandalism. Under his contract, Hunter was authorized to issue civil fines to offenders.
That evening, Hunter noticed a vehicle speeding and weaving through the complex. Hunter pulled over the vehicle, approached the driver, and smelled alcohol and noticed that the driver’s eyes were bloodshot. Weaver admitted to drinking that night at a local bar and stepped out of his vehicle, whereupon Hunter gave him a civil citation for speeding and careless and reckless driving.
Hunter then called a city police dispatcher to send an officer for a possible DWI. A UNCW police officer first arrived, but because she was outside her jurisdiction, Wilmington Police Department Det. Michael Tenney was dispatched to the scene. After performing field sobriety tests on Weaver, Tenney arrested him for DWI.
The trial court granted Weaver’s motion to suppress. But the Court of Appeals held that many of the trial court’s findings of fact were not supported by the evidence.
The court held “[I]n determining whether a private citizen is a state actor for the purposes of the Fourth Amendment, we use a totality of the circumstances approach that requires special consideration of 1) the citizen’s motivation for the search or seizure, 2) the degree of governmental involvement, such as advice, encouragement, knowledge about the nature of the citizen’s activities, and 3) the legality of the conduct encouraged by the police.”
The court found “an absence of all three special considerations” in this case. It ruled that Hunter’s motivation was not to assist law enforcement officers, but was solely to issue Weaver a civil citation. It also ruled that the Wilmington Police Department and UNCW campus police did not encourage Hunter to stop Weaver. Finally, the court ruled that the arrival of the police did not transform Hunter’s conduct into an action by the state.
The court also noted that even if it would have found Hunter to be an agent of the state, there was reasonable suspicion for this traffic stop so the trial court was reversed twofold.-