Home / Fulltext Opinions / Virginia Court of Appeals / COSTON v. COMMONWEALTH OF VA





MARCH 23, 1999
Record No. 0404-98-1




Lydia Calvert Taylor, Judge
Argued at Norfolk, Virginia
Present: Chief Judge Fitzpatrick, Judge Bray and
Senior Judge Overton
B. Cullen Gibson for appellant.
Leah A. Darron, Assistant Attorney General (Mark
L. Earley, Attorney General, on brief), for appellee.

Cornelius Coston (defendant) appeals his
conviction for forgery of a public record, in violation of Code
Sect. 18.2-168. He contends that the summons he signed was
not a public record because it was not issued by a "public
officer or public employee." Code Sect. 18.2-168. We
hold that a "public officer" did issue the summons, and
we affirm.

On November 9, 1996, Sergeant Anthony Primus
was employed as a security guard assigned to the Huntersville
Apartments, a privately owned apartment complex in Norfolk,
Virginia. Primus was licensed by the Virginia Department of
Criminal Justice Services to work as a security guard. On this
evening, Primus saw defendant trespassing on the grounds of the
apartments. When Primus stopped defendant, defendant identified
himself as Clyde Washington. Primus issued a summons to defendant
which defendant also signed "Clyde Washington."
Defendant was later arrested for forging a public document, to
wit: the summons.

At trial, defendant moved to strike the
evidence on the ground that Sergeant Primus was not a
"public officer or public employee." The trial court
ruled that Primus was a "registered armed security
guard" and such guards are public officers or employees for
purposes of Code Sect. 18.2-168, the forgery statute.
Defendant was convicted of forgery, and this appeal followed.

The question before us is whether a security
guard registered pursuant to Code Sect. 9-183.3 is a
"public officer or public employee" for purposes of
Code Sect. 18.2-168. If so, then we must affirm defendant’s
conviction. If Sergeant Primus was not such an officer or
employee, we must reverse. The answer to the question requires an
examination of the statutory scheme that registers and empowers
security guards in the Commonwealth.

No person may "be employed by a licensed
private security services business in the Commonwealth as . . .
[an] armed security officer . . . without possessing a valid
registration issued by the Department [of Criminal Justice
Services]." Code Sect. 9-183.3. Sergeant Primus
testified that he was registered and possessed a license to be a
security guard. Security officers must undergo compulsory
training and pass a background investigation. See Code
Sects. 9-182, -183.3. They are also subject to investigation
and discipline by the Criminal Justice Services Board. See
Code Sect. 9-182.

Security officers have several powers normally
reserved for police officers. They are exempt from civil
liability in connection with the detention of a person suspected
of larceny. See Code Sects. 18.2-105, -105.1. When a
crime is committed in an officer’s presence or probable cause
exists to suspect someone of shoplifting, the officer may
"effect an arrest" and is "considered an arresting
officer." Code Sect. 9-183.8. As an arresting officer,
a security officer may "take the name and address of such
person and issue a summons or otherwise notify him in writing to
appear at a time and place to be specified in such summons or
notice." Code Sect. 19.2-74.

Through substantial regulation, the General
Assembly has clothed registered security officers with many of
the powers reserved for public employees or officers. Indeed, in
some instances, a security officer is treated exactly like a
police officer. We hold that where, as here, a registered
security officer is engaged in a duty specifically granted by
statute, that officer is a "public officer or public
employee" for purposes of Code Sect. 18.2-168. When
defendant forged the summons issued by Sergeant Primus, it was as
if defendant had forged a summons issued to him by a police
officer, and the same criminal culpability resulted. See Pope
v. Commonwealth
, 19 Va. App. 130, 449 S.E.2d 269 (1994).

We are careful to limit our holding to the four
corners of the case before us. We do not hold that a private
security officer is a public officer or public employee for all
purposes or even most purposes. The general rule is that he is
not. See, e.g., United States v. Francoeur,
547 F.2d 891, 893 (5th Cir.), cert. denied, 431
U.S. 932 (1977) (holding that amusement park security guards are
not state actors for Fourth Amendment search and seizure
purposes); Mier v. Commonwealth, 12 Va. App. 827, 833, 407
S.E.2d 342, 346 (1991) (holding that security agents are not
state actors for Fifth Amendment custodial interrogation
purposes). We merely hold that, considering the legislative
intent evidenced by the code sections at issue, Sergeant Primus
was a "public officer" in this instance.

Accordingly, defendant’s conviction is




[1] Judge Overton
participated in the hearing and decision of this case prior to
the effective date of his retirement on January 31, 1999 and
thereafter by his designation as a senior judge pursuant to Code
Sect. 17.1-401, recodifying Code Sect. 17-116.01:1.