COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Bray and
Senior Judge Overton ∗
Argued at Norfolk, Virginia
CORNELIUS RODNEY COSTON
OPINION BY
v. Record No. 0404-98-1 JUDGE NELSON T. OVERTON
MARCH 23, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Lydia Calvert Taylor, Judge
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 § 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 § 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
∗
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 § 17.1-401, recodifying Code
§ 17-116.01:1.
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 § 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 § 9-183.3 is a "public officer or
public employee" for purposes of Code § 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
§ 9-183.3. Sergeant Primus testified that he was registered and
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possessed a license to be a security guard. Security officers
must undergo compulsory training and pass a background
investigation. See Code §§ 9-182, -183.3. They are also
subject to investigation and discipline by the Criminal Justice
Services Board. See Code § 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 §§ 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 § 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 § 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 § 18.2-168. When defendant forged the summons
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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 affirmed.
Affirmed.
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