United States v. Mayes
| Decision Date | 24 January 2013 |
| Docket Number | No. 2:12-cr-00501-DCN-1,2:12-cr-00501-DCN-1 |
| Court | U.S. District Court — District of South Carolina |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. DOMINICK MALICK MAYES, Defendant. |
This matter comes before the court on defendant's motion to suppress a firearm and statements made after discovery of the firearm. Because this evidence was obtained by a private security guard acting in a private rather than governmental capacity, and the constitutional protections Mayes relies upon do not apply to "searches by privates individuals acting in a private capacity," United States v. Jarrett, 338 F.3d 339, 344 (4th Cir. 2003), the court denies defendant's motion.
On June 14, 2012, the Grand Jury indicted defendant Dominick Malick Mayes on one count of knowingly possessing a firearm as a convicted felon. The indictment stems from the seizure of a firearm on Easter Sunday at a racetrack in Dorchester County, South Carolina. On December 27, 2012, the court held a hearing on Mayes's motion to suppress. The following facts are drawn from the credible and uncontroverted testimony provided at the hearing.
On the evening of April 8, 2012, Kevin Johnson was working as a security guard at the racetrack in Dorchester County. He was employed by South Carolina Security Agency, a privately-owned business providing security services. Mr. Johnson's dutieswere primarily centered on safety and crime deterrence: he was supposed to "walk around and make sure nobody was fighting, smoking [marijuana], or doing anything of that nature," "keep people from crossing over the track," and "keep people from getting hit" by debris from the racetrack. Mr. Johnson would intervene when coming upon an illegal or dangerous situation, and, if necessary, reach out to any law enforcement officers that might be present at the time. Deputies from the Dorchester Country Sheriff's Office were also stationed at the racetrack on April 8, 2012.
During an intermission between races, Mr. Johnson went to use the bathroom. Along the way, a man leaving the bathroom told Mr. Johnson that someone in the bathroom had dropped a gun. When Mayes exited the bathroom, the tipster pointed to him as the man in possession of the gun, stating "that's the guy that had the gun on him." So as not to alarm the crowd near the bathroom,1 Mr. Johnson walked by Mayes and intentionally gave him a "shoulder bump," allowing him to feel a gun in Mayes's front waistband. Based on his experience searching for weapons at night clubs, Mr. Johnson felt what he believed to be an automatic. He proceeded to move Mayes away from the bathroom, search him, secure the loaded gun,2 and place Mayes in handcuffs.
Once Mayes was cuffed, Mr. Johnson began walking him towards the deputies from the Dorchester Country Sheriff's Office. Mayes attempted to get out of his predicament by offering bribe money to Mr. Johnson, which Mr. Johnson declined. Mr. Johnson then asked Mayes why he was carrying a gun, and Mayes responded that he had been in a previous altercation at the racetrack and needed to carry the gun to protecthimself.3 When Mr. Johnson reached the deputies, he handed over Mayes's gun. The deputies then replaced Mr. Johnson's handcuffs with their own and placed Mayes in a squad car.
The deputies from the Dorchester County Sheriff's Office who were present on the evening of April 8, 2012 knew that at least ten private security officers were also present. According to the sheriff's deputies, they knew that the private security officers worked for "a separate entity" independent of the Sheriff's Office. When Mr. Johnson brought Mayes to the deputies, they took custody of him. At no point before or after Mr. Johnson arrived with Mayes did the deputies instruct Mr. Johnson on what he was supposed to do while working at the racetrack. In fact, a deputy testified that the Sheriff's Office "really had no interaction with [the private security officers] other than when they assumed certain spots or areas on the track," during which the deputies "would leave that particular area and go do our duties somewhere else."
Mayes brings a motion to suppress, arguing that Mr. Johnson's actions violated his Fourth and Fifth Amendment rights.4 The government contends the evidence was obtained from Mayes when Mr. Johnson was working in a purely private capacity, so there was no constitutional infringement. Even if Mr. Johnson were acting in a governmental capacity, the government argues the search and seizure was constitutional. The court takes these issues in turn.
In general, the protections from abuses of authority in the Fourth and Fifth Amendments only apply to governmental conduct. See Skinner v. Ry. Labor Execs. Ass'n, 489 U.S. 602, 614 (1989) (); Colorado v. Connelly, 479 U.S. 157, 170 (1986) (). When actions taken by private individuals are challenged as unconstitutional, the critical question is whether the individuals acted as "instruments or agents of the Government."5 Jarrett, 338 F.3d at 344 (internal quotation marks and alterations omitted); see Coolidge v. New Hampsire, 403 U.S. 443, 487 (1971) ().
"[R]egardless of whether the Fourth or Fifth Amendment is at issue," courts in the Fourth Circuit "apply the same test to determine whether a private individual acted as a Government agent." United States v. Day, 591 F.3d 679, 683 (4th Cir. 2010). "The defendant bears the burden of proving that an agency relationship exists" between the government and private individual. Jarrett, 338 F.3d at 344. To make this determination, courts look to "two primary factors": "(1) whether the Government knew of and acquiesced in the private individual's challenged conduct; and (2) whether the privateindividual intended to assist law enforcement or had some other independent motivation." Day, 591 F.3d at 683 (internal quotation marks omitted).
Under the first factor, the Fourth Circuit has stated that "there must be some evidence of Government participation in or affirmative encouragement of the private search before a court will hold it unconstitutional." Jarrett, 338 F.3d at 346; see id. at 345 ().
This case is controlled by the Fourth Circuit's decision in United States v. Day, 591 F.3d 679 (4th Cir. 2010).6 In that case, two private, armed security officers were on duty at an apartment complex. United States v. Day, 590 F. Supp. 2d 796, 799 (E.D. Va. 2008), rev'd, 591 F.3d 679 (4th Cir. 2010). Shortly after midnight, they observed the defendant, Day, and another individual standing in the middle of the road and arguing with occupants inside an apartment. The officers observed Day pull a firearm from a nearby car and then advance on the apartment while shouting at the occupants. Exiting their patrol car, the officers drew their weapons, yelled at Day to freeze, and placed him in restraints. Prior to being given a Miranda warning, Day admitted he had marijuana inhis pocket, which one of the officers seized along with the firearm. Day also answered questions about the firearm. The officers then contacted the local police department, which took custody of Day. Id.
Day moved the district court to suppress his statements concerning the marijuana and firearm. The threshold question for the court was whether the security officers were acting as government agents in their interactions with Day. To answer this question, the court looked to the extent of the Commonwealth of Virginia's regulation of private security officers. The court found, "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." Id. at 800 (quoting Va. Code Ann. § 9.1-146). This grant of power to effect an arrest was "enough" to find that the state, through its regulations, affirmatively encouraged the actions taken by the security officers, making them government actors. Id. at 801-02. The court additionally found it persuasive that to be an armed security officer in Virginia, one must obtain valid government registration, satisfy minimum compulsory training standards established by a government entity, and pass a government background check. See id. at 800 (citing Va. Code Ann. § 9.1-139 & 9.1-139(F)). In addition, registered security officers remain subject to investigation and discipline by the government. Id. (citing Va. Code Ann. § 9.1-141). This registration scheme led the court to conclude that "the state was the genesis of [the officers'] power and activities rather than a mere passive recipient of the largess of their actions," therefore, the officers acted as government agents. Id. at 802.
The district court was also persuaded that, under a § 1983 analysis, the security officers would be found to have acted under color of state law based on the "public function test": "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." Romanski v. Detroit Entm't, L.L.C., 428 F.3d 629, 637 (6th Cir. 2005). A decision issued by the Virginia Court of Appeals, Coston v....
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