Confession and Statements Obtained by Private Security upon Promise of Leniency Ruled INVALID

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Confession and Statements Obtained by Private Security upon Promise of Leniency Ruled INVALID

Over three decades in law enforcement I investigated many crimes and as an Internal Affairs investigator and police manager, I conducted numerous administrative investigations. I always enjoyed investigative work so after I retired from law enforcement I became a private investigator my hometown of Portland, Oregon. As the publisher of a physical security blog I had a long-time interest in physical security and when clients started asking me for security advice, I merged these two disciplines.

I not only investigate something that has occurred and try to find out “what happened” and “who done it,” but I also help businesses take steps to prevent the problem from ever occurring again. By creating practical and effective security policies & procedures, training employees on security issues, and having a comprehensive security “system” in place, businesses can become more safe and secure and spend their time and efforts doing what they do best – serving their customers and making money.

Business investigations run the gamut but most involve some form of theft or fraud. At some point these investigations often involve interviewing someone who would be considered a “suspect” or “person of interest.” Whatever you want to call them, these are people you suspect have done something wrong. Often what they are suspected of is criminal. Sometimes, the company decides to handle the matter internally by simply firing the employee. Sometimes the company decides to fire the employee and seek civil restitution. And, on other occasions the company terminates the employee, initiates civil action, and elects to ask the prosecutor to file criminal charges.

The Work of Private Security Personnel is . . . Private

As a private investigator, I work for the client who hired me – not the police or any other government entity. I am not a “government agent” and my work is “private.” Once my investigation is complete I may make recommendations to my client, but ultimately it is the client’s decision on how to proceed. Some clients decide to do nothing even when there is clear and convincing evidence to show that an employee, vendor, business associate, etc. clearly did something wrong – even something criminal. That is their decision – I make no judgment.

If the client decides to initiate civil or criminal action against someone, it is important that all the evidence gathered during the course of the investigation was obtained legally. Illegally obtained evidence, or evidence that flows from illegally obtained evidence, just “looks bad” in court and in some cases will be ruled inadmissible. It could even lead to a law suit by the “person of interest” against the investigator and the client who hired the investigator.

Private Security Personnel have Less Constraints than Law Enforcement Officers

Because private investigators and security personnel are not “government agents” they do not have the same restraints of law enforcement. Many people (including some private investigators and security personnel) believe that they are free to use tactics that law enforcement is prohibited by laws and court decisions to employ. In some situations, this is true. Just as one example, if a private investigator or security officer makes a “citizen arrest” and detains someone and they proceed to question that detained person, they do not need to advise the arrested and detained person of their Marinda rights before they question them.

Generally, a confession obtained by police obtained in violation of the Miranda rule is inadmissible as evidence. But the Miranda rule only applies to those who exercise power for the government and because private investigators, security officers, shopkeepers, managers & supervisors, etc. are not government agents, they have no obligation to advise someone they may choose to “interrogate” of any rights. These private individuals are free to question any suspect and whatever statements made by the suspect are, as a general rule, admissible in court.

But, this does not mean that private security personnel, private investigators, (or anyone else who is not a government agent) have carte blanche to interrogate someone. Courts across the United States have placed limits on the admissibility of confessions elicited by private individuals of every stripe.

In the United States the law in each state varies and each case always hinges on the individual facts. But, generally, statements made to private security personnel, private investigators, (or anyone else who is not a government agent) are not admissible in a criminal proceeding if those statements were coerced or induced by threats or promise of leniency.

What constitutes coercion or threats or implied or perceived promise of leniency? The standard is a little different in each state. Obviously if you give someone the “rubber-hose-treatment” and threaten someone with bodily harm unless they confess, that would  universally be considered coercion.  If a prosecutor grants someone immunity from prosecution in exchange for a confession or other information and then reneges, the confession or information obtained could not then be used against that person. But, sometimes it takes much less for a court to conclude that statements were a product of unlawful coercion. And, sometimes a promise of leniency can be implied or just perceived by the individual.

Consider case of State of Oregon v. Lance Franklin Powell.

As with most court cases, the legal arguments in this case are multifarious and can be overly technical, but the basic facts were not in dispute. For brevity, here are the basic facts:

Mr. Powell worked for the FedEx shipping company.

Some packages were discovered missing and private investigators employed by FedEx conducted an investigation. They concluded that Mr. Powell was a suspect and interviewed him while he was at work.

Mr. Powell initially denied any knowledge of the package thefts. Upon further questioning the FedEx investigators told Mr. Powell that the matter “could” be handled “in-house” and did not have to involve the police, although they made no promise of not calling the police. They also mentioned to Mr. Powell that if he confessed, no one outside the interview room had to know about it and implied that what they were interested in was making the customer “happy” and getting the missing packages back to their owners. There are no reports of investigators yelling at Mr. Powell, using harsh language, bright interrogation lights, or physical intimidation.

Mr. Powell then confessed to stealing the packages and lead the investigators to his garage where packages were recovered. Despite the investigators telling Mr. Powell that they did not have to get the police involved, investigators called the local police. Mr. Powell also confessed to police and was subsequently arrested by police and charged.

Powell’s attorney moved to suppress the statements made to FedEx investigators and statements made to police. In regards to the admissibility of statements Mr. Powell made to FedEx investigators, the prosecutor argued that statements made to FedEx investigators and police should be admissible as they were the product of a private individual and not the product of a government agent. The trial court disagreed and summed the issue up by saying:

“The question before the Court is whether or not defendant’s confession was voluntary or in violation of statutory or constitutional protections. Based on the totality of the evidence presented at the suppression hearing, the court finds that defendant did not make a voluntary confession. The express and implied promises of immunity from criminal prosecution given to the defendant by the Fed Ex investigators renders [sic] his statements to them involuntarily [sic]. Because there was not a sufficient break in time or location between the Fed Ex investigation interviews and the interview by law enforcement investigators, statements made by defendant in response to subsequent interrogation and evidence seized after his involuntary confessions must also be suppressed.”

The state appealed the suppression of defendant’s statements to FedEx investigators and the police. Upon appeal, the Oregon Court of Appeals affirmed the trial court’s decision to suppress statements made to FedEx investigators, but ruled that defendant’s later statements to police were made freely and voluntarily and were admissible.

Conclusion

Oregon has long followed the common-law rule, now embodied in statute (ORS 136.425(1)), requiring suppression of “[a] confession or admission . . . when it was made under the influence of fear produced by threats” or “induced by promises of leniency.” In Oregon, a confession induced by an express or implied promise of immunity is involuntary and inadmissible under both the Oregon Constitution and case law.

When a confession to a crime is obtained as the result of an offer or implied offer of immunity as to that crime, the legal assumption is that the defendant’s will was overborne. As a matter of law, the confession is held to be involuntary. It does not matter that the express or implied promise was made by private individuals who had no authority or power to decide on behalf of the state whether to prosecute or not. It also does not matter that the promise was made during a voluntary non-custodial conversation that the defendant was free to terminate.

Private security professionals would be well served to become well versed in the law regarding interrogations (or as we refer to them now days “interviews”) in the states that they work. Failure to do so could result in confessions and statements being excluded from criminal court proceedings and could subject the investigator and the person who hired the investigator to civil action.

 

George Babnick
George W. Babnick, is a 34 year law enforcement veteran with an extensive background in physical security, criminal and administrative investigations, training, school policing, supervision and management, and criminal forensics. He recently retired as a Captain in the Portland Oregon Police Bureau where he managed the Training, School Police, and Forensic Evidence Divisions. He holds criminal justice degrees from Portland Community College and Portland State University and a law degree from Northwestern California University School of Law, Sacramento California.

Mr. Babnick is a longtime member of the Western Society of Criminology and is the author of articles on security and law enforcement, investigations, supervision and management, and risk management related to these subjects.

As a physical security expert, George Babnick provides private physical security consultations across the United States and consults with clients outside the United States. He specializes in assessing security problems for small and medium businesses as well as select individuals. He offers independent, honest advice and expertise, with the goal of providing all clients with practical and cost-effective security solutions to enhance security and effectively manage business and personal security risks.

Mr. Babnick is also a licensed Private Investigator and conducts investigations for attorneys, businesses, and individuals throughout the State of Oregon.

To learn more about security consultation and investigative services offered, please visit http://babnickandassociates.com

Disclaimer: Nothing in any article on this blog should be construed as legal advice. Persons seeking legal advice should seek the counsel of an attorney licensed in their state.