U.S. v. Day, Criminal Action No. 3:08cr403.

• Citation: 590 F.Supp.2d 796
• Decision Date: 01 December 2008
• Docket Number: Criminal Action No. 3:08cr403.
• Court: United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
• Parties: UNITED STATES of America v. Mario Terrell DAY, Defendant.

590 F.Supp.2d 796

UNITED STATES of America v. Mario Terrell DAY, Defendant.

Criminal Action No. 3:08cr403.

United States District Court, E.D. Virginia, Richmond Division.

December 1, 2008.

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Michael C. Moore, United States Attorney's Office, Richmond, VA, for United States of America.

Mary Elizabeth Maguire, Office of the Federal Public Defender, Richmond, VA, for Defendant.

MEMORANDUM OPINION

RICHARD L. WILLIAMS, Senior District Judge.

This matter is before the Court on the defendant's motion to suppress. For the reasons stated below, the defendant's motion is granted in part and denied in part.

I. FACTS

On July 5, 2008, Officers Costa and Slader of the American Security Group were on duty at the Regency Lake apartment complex. They are both "armed security officers" with the power to arrest pursuant to Virginia Code Section 9.1-138 et seq. While patrolling, the officers noticed a gathering at 6464 Planet Road. Shortly after midnight, they observed individuals later identified as Evan Moore and Mario Day, the defendant, in the middle of the road arguing with unseen individuals inside the apartment. The officers observed Day retrieve a gun from a nearby Caprice. Holding the gun at the "low and ready," Day began advancing on the apartment while continuing to shout at the individuals inside. Exiting their patrol car, the officers drew their weapons and yelled at Day to freeze as they ran towards him. Day immediately placed the gun on the floorboard of the Caprice and raised his hands. The officers placed Day in restraints and conducted a Terry search, wherein they found no suspicious bulges or hard objects. Nevertheless, and without giving any Miranda warnings, Officer Costa asked Day if he had "anything illegal" on him. Day admitted he has a little marijuana; Officer Costa reached into Day's pants pocket and retrieved the marijuana. The officers also questioned Day about the firearm, which he said he was carrying for his safety.

The officers contacted their superior, Lieutenant Pentato, and the Chesterfield police department. Chesterfield Police Officer Neville arrived and took over custody of Day and Moore. The parties agree that Officer Neville discovered the firearm was reported stolen before questioning Day about the gun. Likewise, it is undisputed that Officer Neville failed to read Day his Miranda rights before questioning him about the gun and marijuana.

II. ANALYSIS

The Fourth Amendment protects against unreasonable searches and seizures by government officials and private parties acting as governmental agents or instruments. Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 613-614, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989). The degree of governmental involvement in the private individual's activities, judged under the totality of the circumstances, determines whether the governmental conduct requirement is met. Id. at 614, 109 S.Ct. 1402. The government's mere passive acceptance or acquiescence in private conduct is insufficient to implicate Fourth Amendment protections; some type of affirmative encouragement or governmental participation is necessary. United States v. Jarrett, 338 F.3d 339, 344, 346 (4th Cir.2003).

In analyzing this situation, we must look to Virginia Code Section 9.1-138 et seq., which regulates private security services within the Commonwealth. To be an armed security officer in Virginia, one must obtain "a valid registration issued by the Department [of Criminal Justice.]" Va.Code Ann. § 9.1-139 (2006). To become a registered armed security officer, an individual must satisfy "the compulsory minimum training standards established by the [Criminal Justice Services] Board¹" and pass a background check of the Virginia Criminal History Records and the National Criminal Records. Id. § 9.1-139(F). Once registered, armed security officers remain subject to investigation and discipline by the Criminal Justice Services Board.² Id. § 9.1-141. Importantly, Virginia Code Section 9.1-146 endows these registered armed security officers with "the power to effect an arrest for an offense occurring * * * in his presence on [the] premises" wherein the officer is on duty. As such, the armed security officer "shall be considered an arresting officer" for the purposes of Virginia Code Section 19.2-74, dealing with the issuance of summonses in misdemeanor cases. Ibid.

To understand the implications of these statutes, it is helpful to look at the analysis of armed security officials under Section 1983, which provides redress for violations of federal or constitutional rights by those acting under color of law. See 42 U.S.C. § 1983. Although some Justices have posited that "clear[ly] * * * the delegation of police power to a private party will entail state action," see Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 172 n. 8, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978) (Stevens, J., dissenting), the Court has explicitly left open the question of "the constitutional status of private police forces," id. at 163 n. 14, 98 S.Ct. 1729. Recently, in the thoughtful and persuasive opinion of Romanski v. Detroit Entertainment, L.L.C., 428 F.3d 629 (2005), the Sixth Circuit examined the substantial body of case law on the treatment of such officers under Section 1983. The court explained that a line has been drawn between "cases in which a private actor exercises a power traditionally reserved to the state, but not exclusively reserved to it, e.g., the common law shopkeeper's privilege, from cases in which a private actor exercises a power exclusively reserved to the state, e.g., the police power. Where private security guards are endowed by law with plenary police powers such that they are de facto police officers they may qualify as state actors under the public function test."³ Id. at 637. This is because "[u]nlike the common law privileges at issue in Wade [v. Byle.% 83 F.3d 902 (7th Cir.1996) ] (the use of deadly force in self-defense, the right to detain for trespass, and the right to carry a weapon) and Chapman [v. Higbee Co., 319 F.3d 825 (6th Cir.2003) (en banc) ] (the shopkeeper's privilege), which may be invoked by any citizen under appropriate circumstances, the plenary[⁴] arrest power enjoyed by private security police officers licensed pursuant to [Michigan law] is a power traditionally reserved to the state alone." Id. at 638. This delineation is logical given that "[i]t is beyond dispute that the police function is `one of the basic functions of government' * * * [a]nd an arrest is `the function most commonly associated with the police.'" Rodriguez v. Smithfield Packing Co., Inc., 338 F.3d 348, 355 (4th Cir.2003)(quoting Foley v. Connelie, 435 U.S. 291, 297-298, 98 S.Ct. 1067, 55 L.Ed.2d 287 (1978)). Moreover it accords with the Supreme Court's declaration that "when private individuals or groups are endowed by the State with powers or functions governmental in nature, they become agencies or instrumentalities of the State and subject to its constitutional limitations."

⁵

Evans v. Newton, 382 U.S. 296, 299, 86 S.Ct. 486, 15 L.Ed.2d 373 (1966).

Without limitation, the Virginia Code endows armed security officers with the power to effect arrests for any offenses occurring in an on-duty officer's presence. Va. Code Ann. § 9.1-146. A similar grant of power led the Sixth Circuit to declare a security officer was, as a matter of law, a state actor. See Romanski, 428 F.3d at 638. This particular provision has prompted the Virginia Court of Appeals to observe that armed "[s]ecurity officers have several powers normally reserved for police officers," for "[t]hrough substantial regulation, the General Assembly has clothed [them] 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." Coston v. Commonwealth, 29 Va.App. 350, 512 S.E.2d 158, 159 (1999).

For the purposes of our analysis, it is enough to observe that the Virginia legislature specifically granted Officers Slader and Costa the power to arrest as armed security officers. These officers were vetted, trained, and continue to be subject to disciplinary action under the aegis of the state's Criminal Justice Services Board. In this context, the state is not a mere passive participant; rather, it affirmatively encouraged and enabled these officers to engage in the complained of conduct, for without their state-granted authority, these officers could not have acted as de facto police. In short, the state was the genesis of their power and activities rather than a mere passive recipient of the largess of their actions. Cf., e.g., United States v. Kinney, 953 F.2d 863 (4th Cir.1992)(officers' mere presence insufficient to turn privately initiated search into government conduct).

Clearly Officers Slader and Costa were operating as de facto police on the night in question. The officers were "patrolling" the area in their unmarked sedan (a car of sufficient similarity to the stereotypical image of an unmarked police car that a Chesterfield officer "assumed" it must be the security officers' vehicle); noticing a potentially disorderly gathering in their rounds, the officers returned to this area, parking where they could observe the burgeoning situation. Observing a "verbal altercation" that escalated to Day's retrieval of a gun from a nearby car, the officers exited their vehicle, drawing their weapons and yelling "freeze" as they ran towards Day. Both officers were wearing black uniforms with gold emblems on the sleeves, displaying a gold badge virtually identical to a police shield, and bearing handguns; in short, they were the quintessential image of law enforcement as they ran with weapons drawn towards Day. The officers placed Day in restraints, "terried" him, and began questioning him about the gun and whether he had "anything illegal" on his person. Clearly the officers acted with the intent...