U.S. v. Day, No. 08-5231.

CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)
Writing for the CourtKing
Citation591 F.3d 679
Docket NumberNo. 08-5231.
Decision Date08 January 2010
PartiesUNITED STATES of America, Plaintiff-Appellant, v. Mario Terrell DAY, Defendant-Appellee.
591 F.3d 679
UNITED STATES of America, Plaintiff-Appellant,
v.
Mario Terrell DAY, Defendant-Appellee.
No. 08-5231.
United States Court of Appeals, Fourth Circuit.
Argued: October 28, 2009.
Decided: January 8, 2010.

[591 F.3d 680]

ARGUED: Richard Daniel Cooke, Office of the United States Attorney, Richmond, Virginia, for Appellant. Mary Elizabeth Maguire, Office of the Federal Public Defender, Richmond, Virginia, for Appellee. ON BRIEF: Dana J. Boente, Acting United States Attorney, Alexandria, Virginia, Michael C. Moore, Assistant United States Attorney, Office of the United States Attorney, Richmond, Virginia, for Appellant. Michael S. Nachmanoff, Federal Public Defender, Alexandria, Virginia, for Appellee.

Before KING, SHEDD, and DAVIS, Circuit Judges.

[591 F.3d 681]

Reversed and remanded by published opinion. Judge KING wrote the opinion, in which Judge SHEDD joined. Judge DAVIS wrote a separate opinion dissenting in part and concurring in the judgment in part.

OPINION

KING, Circuit Judge:


The Government pursues this interlocutory appeal from the district court's decision of December 1, 2008, suppressing evidence obtained from defendant Mario Day by private security guards. See United States v. Day, 590 F.Supp.2d 796 (E.D.Va. 2008). The court's decision was premised on its determination that the security guards acted as Government agents and contravened Day's constitutional rights. More specifically, the court concluded that the security guards violated Day's Fourth Amendment rights, by conducting a search and seizure beyond the scope authorized in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and his Fifth Amendment rights, by conducting a custodial interrogation without first giving Day the warnings required under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Because we conclude that the security guards were not acting as Government agents, we reverse and remand.

I.

The relevant facts, as outlined by the district court, are as follows:

On July 5, 2008, Officers Costa and Slader of the American Security Group were on duty at the Regency Lake apartment complex [in Chesterfield County, Virginia]. 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 ha[d] 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.

Day, 590 F.Supp.2d at 799.

On September 3, 2008, a grand jury in the Eastern District of Virginia indicted Day on a single count of being a drug user in possession of a firearm, in contravention of 18 U.S.C. § 922(g)(3), and on an additional count of possession of marijuana, in violation of 21 U.S.C. § 844(a). On October 17, 2008, Day filed a motion to suppress "the firearm, marijuana and all statements made by [him] on the day of

591 F.3d 682

his arrest." J.A. 75.1 Thereafter, on November 12, 2008, the district court conducted a hearing on the suppression motion.

By its decision of December 1, 2008, the district court granted Day's suppression motion in part and denied it in part. More specifically, the court granted the suppression motion "as to the marijuana and to all statements about the firearm or marijuana," and denied the motion "as to the firearm" itself. Day, 590 F.Supp.2d at 804.2 In so ruling, the court first determined that Officers Costa and Slader, though private security guards, "were acting as governmental agents in their interactions with Day." Id. at 802. Accordingly, the court proceeded to consider whether Costa and Slader had contravened Day's constitutional rights. The court concluded that, "[t]o ensure their safety and that of bystanders, the officers were justified in conducting the pat-down of Day's clothing" and in "seiz[ing] ... the plainly visible gun." Id. at 803. The court further concluded, however, that once the pat-down revealed "nothing indicative of either a weapon or contraband," the search was "no longer valid under Terry"—thus requiring suppression of the marijuana. Id. (internal quotation marks omitted). Finally, the court concluded that Day was in custody when he was questioned by Costa and Slader, and that, having already "secured the firearm and conducted a fruitless Terry search," "the officers could not get a second bite at the apple by engaging in custodial interrogation without issuing a Miranda warning." Id. at 804. The court therefore suppressed Day's statements to Costa and Slader about the marijuana and the firearm. See id.

On December 10, 2008, the day before Day's trial had been scheduled to begin, the Government timely noted this appeal. In accordance with the jurisdictional predicate of 18 U.S.C. § 3731, the United States Attorney has certified that the appeal "is not taken for the purpose of delay" and that the excluded evidence constitutes "a substantial proof of a fact material in the proceeding." J.A. 95. We thus possess jurisdiction pursuant to the provisions of § 3731.

II.

In assessing a trial court's decision on a motion to suppress, we review the court's factual findings for clear error and its legal determinations de novo. See United States v. Kellam, 568 F.3d 125, 132 (4th Cir.2009). The Government's primary contention in this appeal is that the district court erred in concluding that Officers Costa and Slader were acting as Government agents at the time of their encounter with Day. As such, the Government asserts that the court erroneously suppressed the marijuana, as well as the marijuana- and firearm-related statements. As explained

591 F.3d 683

below, we agree with the Government and thus reverse and remand.3

A.

It is axiomatic that "[t]he Fourth Amendment protects against unreasonable searches and seizures by Government officials and those private individuals acting as instruments or agents of the Government." United States v. Jarrett, 338 F.3d 339, 344 (4th Cir.2003) (citing Coolidge v. New Hampshire, 403 U.S. 443, 487, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971)) (internal quotation marks and alterations omitted). The Fourth Amendment, however, "does not provide protection against searches by private individuals acting in a private capacity." Id. (citing United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984)). Similarly, "[t]he sole concern of the Fifth Amendment, on which Miranda was based, is governmental coercion." Colorado v. Connelly, 479 U.S. 157, 170, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986). Thus, regardless of whether the Fourth or Fifth Amendment is at issue, we apply the same test to determine whether a private individual acted as a Government agent. Cf. United States v. Alexander, 447 F.3d 1290, 1294-95 (10th Cir.2006).

First of all, under the applicable test, "[t]he defendant bears the burden of proving that an agency relationship exists" between the Government and the private individual. Jarrett, 338 F.3d at 344 (citing United States v. Ellyson, 326 F.3d 522, 527 (4th Cir.2003)).4 As we have observed, "whether the requisite agency relationship exists `necessarily turns on the degree of the Government's participation in the private party's activities, ... a question that can only be resolved in light of all the circumstances.'" Jarrett, 338 F.3d at 344 (quoting Skinner v. Ry. Labor Executives' Ass'n, 489 U.S. 602, 614, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989)) (alteration in original). This "is a fact-intensive inquiry that is guided by common law agency principles." Ellyson, 326 F.3d at 527. We have recognized "two primary factors" to be considered: (1) "whether the Government knew of and acquiesced in the private" individual's challenged conduct; and (2) "whether the private individual intended to assist law enforcement or had some other independent motivation." Jarrett, 338 F.3d at 344; see also Ellyson, 326 F.3d at 527 (compressing two factors into "[o]ne highly pertinent consideration").

B.

Here, in concluding that the private security guards, Officers Costa and Slader, acted as Government agents during their encounter with Day, the district court focused on the Commonwealth of Virginia's regulation of private security guards. The court noted that Costa and Slader each

591 F.3d 684

was an "armed security officer," as defined in the Code of Virginia. See Day, 590 F.Supp.2d at 799 (citing Va.Code. Ann. § 9.1-138). And the court observed that "[t]hese officers were vetted, trained, and continue to be subject to disciplinary action under the aegis of the state's Criminal Justice Services Board." Id. at 801; see also id. at 800 (discussing Va.Code Ann. § 9.1-139(C), (F) (requiring an armed security officer to obtain "a valid registration" by satisfying "compulsory minimum training standards established by the Board" and submitting to a "state and national...

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74 practice notes
  • State v. Ackerman, No. M2010–01979–CCA–R3–CD.
    • United States
    • Tennessee Court of Criminal Appeals
    • July 13, 2012
    ...sometimes termed the “instrument or agent” test, for determining whether a Fifth Amendment violation had occurred. United States v. Day, 591 F.3d 679, 683 (4th Cir.2010) (“[R]egardless of whether the Fourth or Fifth Amendment is at issue, we apply the same test to determine whether a privat......
  • United States v. Curry, No. 18-4233
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • September 5, 2019
    ...de novo and its findings of fact for clear error. United States v. Kehoe , 893 F.3d 232, 237 (4th Cir. 2018) ; United States v. Day , 591 F.3d 679, 682 (4th Cir. 2010). Here, we have both. The district court found that the officers were responding to an emergency and that 937 F.3d 369 legit......
  • Fuller v. Carilion Clinic, Civil Action No. 7:17CV564
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Western District of Virginia)
    • May 21, 2019
    ..."core, sovereign power — a power, in other words, that is traditionally the exclusive prerogative of the [s]tate." United States v. Day, 591 F.3d 679, 686 (4th Cir. 2010). "In order to find state power, the function served by the private group must be that which is traditionally and exclusi......
  • State v. Verkerk, No. COA12–1579.
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • September 3, 2013
    ...to the approach which has been taken in other jurisdictions in addressing issues of this nature. For example, in United States v. Day, 591 F.3d 679, 683 (4th Cir.2010), the Court stated that First of all, under the applicable test, “[t]he defendant bears the burden of proving that an agency......
  • Request a trial to view additional results
74 cases
  • State v. Ackerman, No. M2010–01979–CCA–R3–CD.
    • United States
    • Tennessee Court of Criminal Appeals
    • July 13, 2012
    ...sometimes termed the “instrument or agent” test, for determining whether a Fifth Amendment violation had occurred. United States v. Day, 591 F.3d 679, 683 (4th Cir.2010) (“[R]egardless of whether the Fourth or Fifth Amendment is at issue, we apply the same test to determine whether a privat......
  • United States v. Curry, No. 18-4233
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • September 5, 2019
    ...de novo and its findings of fact for clear error. United States v. Kehoe , 893 F.3d 232, 237 (4th Cir. 2018) ; United States v. Day , 591 F.3d 679, 682 (4th Cir. 2010). Here, we have both. The district court found that the officers were responding to an emergency and that 937 F.3d 369 legit......
  • Fuller v. Carilion Clinic, Civil Action No. 7:17CV564
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Western District of Virginia)
    • May 21, 2019
    ...sovereign power — a power, in other words, that is traditionally the exclusive prerogative of the [s]tate." United States v. Day, 591 F.3d 679, 686 (4th Cir. 2010). "In order to find state power, the function served by the private group must be that which is traditionally and excl......
  • State v. Verkerk, No. COA12–1579.
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • September 3, 2013
    ...to the approach which has been taken in other jurisdictions in addressing issues of this nature. For example, in United States v. Day, 591 F.3d 679, 683 (4th Cir.2010), the Court stated that First of all, under the applicable test, “[t]he defendant bears the burden of proving that an agency......
  • Request a trial to view additional results

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