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Private Police Regulation and the Exclusionary Remedy: How Washington Can Eliminate the Public/Private Distinction

Abstract: Private security forces such as campus police, security guards, loss prevention officers, and the like are not state actors covered by the Fourth Amendment’s prohibition against unreasonable searches and seizures nor the Fifth Amendment’s Miranda protections. As members of the umbrella category of “private police,” these private law enforcement agents often obtain evidence, detain individuals, and elicit confessions in a manner that government actors cannot, which can then be lawfully turned over to the government. Though the same statutory law governing private citizens (assault, false imprisonment, trespass, etc.) also regulates private police conduct, private police conduct is not bound by constitutional protections like the exclusionary rule, which requires that evidence obtained in violation of a criminal defendant’s rights be excluded from their prosecution. As a result of this disparity, evidence that would have been suppressed if government actors had procured it is often deemed admissible when procured by private police. Because private actors make up a significant and growing sector of law enforcement, the absence of robust constitutional regulation means that citizens whose rights are violated have little recourse because the default remedy of suppression is unavailable. This Comment examines how states’ exclusionary rules impose higher standards on searches and seizures than the federal exclusionary rule by encompassing private actors. It also urges Washington State to adopt an exclusionary rule that recognizes suppression of illegally obtained evidence from both public and private actors.

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