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MADISON - Attorney General J.B. Van Hollen today issued an informal opinion to the Brown County Corporation Counsel's Office in response to then Interim Corporation Counsel Frank Mohr's inquiry regarding the arrest powers of private security guards hired by the County to patrol Austin Straubel International Airport. The guards are armed and licensed under Wisconsin law, but are not sworn or deputized by the Brown County Sheriff.
Mohr asked whether such a guard can detain a suspect for up to ten minutes if the guard does not personally witness a crime being committed but instead relies on information conveyed by a federal Transportation Security Administration worker. Mohr also inquired whether such a guard could detain a suspect for up to ten minutes when the guard observes the commission of a crime on a videotape recording.
Van Hollen explained that because the guards do not have the status of law enforcement officers, the guards' authority to arrest suspected law breakers is subject to the law governing citizen's arrests. According to Van Hollen, if a private security guard has probable cause to believe a person has committed a felony, the guard just like a private citizen can make a warrantless arrest of the person.
Probable cause can be based on information received from a TSA worker, and it is not necessary that the guard personally witness the felony being committed. Van Hollen opined that pursuant to existing case law, a ten-minute detention period while the guard awaits the arrival of a law enforcement officer would be reasonable.
Where the suspected crime is a misdemeanor, however, Van Hollen advised that a private security guard can arrest a suspect only if the crime is committed in the guard's presence and involves a breach of the peace.
Replaying a videotape of a crime being committed may not satisfy the "in the presence" requirement for a valid citizen's arrest for a misdemeanor, Van Hollen cautioned. Because of uncertainty as to how a court would interpret this requirement, Van Hollen warned that a private security guard who detains a suspected misdemeanant on this basis may be acting illegally.
A copy of the original request and Attorney General Van Hollen's informal opinion can be found below: