United States v. Day

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 
Plaintiff-Appellant,
v.  No. 08-5231
MARIO TERRELL DAY,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Richard L. Williams, Senior District Judge.
(3:08-cr-00403-RLW-1)

Argued: October 28, 2009

Decided: January 8, 2010

Before KING, SHEDD, and DAVIS, Circuit Judges.

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.

COUNSEL

ARGUED: Richard Daniel Cooke, OFFICE OF THE
UNITED STATES ATTORNEY, Richmond, Virginia, for
Appellant. Mary Elizabeth Maguire, OFFICE OF THE FED-
2 UNITED STATES v. DAY
ERAL 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.

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 spe-
cifically, 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 (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 (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
 UNITED STATES v. DAY 3
County, Virginia]. They are both "armed security
officers" with the power to arrest pursuant to Vir-
ginia 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 immedi-
ately 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 warn-
ings, Officer Costa asked Day if he had "anything
illegal" on him. Day admitted he ha[d] a little mari-
juana; Officer Costa reached into Day’s pants pocket
and retrieved the marijuana. The officers also ques-
tioned 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 mari-
juana, in violation of 21 U.S.C. § 844(a). On October 17,
4 UNITED STATES v. DAY
2008, Day filed a motion to suppress "the firearm, marijuana
and all statements made by [him] on the day of 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 fire-
arm" 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 offi-
cers were justified in conducting the pat-down of Day’s cloth-
ing" 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 contra-
band," 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
1
Citations herein to "J.A. ___" refer to the contents of the Joint Appen-
dix filed by the parties in this appeal.
2
Notably, the district court ruled on the admissibility of Day’s state-
ments not only to the private security guards (Officers Costa and Slader),
but also to the Chesterfield police officer called to the scene (Officer Nev-
ille). The Government "conceded that Officer Neville engaged in custodial
interrogation without advising Day of his Miranda rights," and the court
concluded that "any statements Day made to Neville about either the mari-
juana or the gun must be suppressed." Day, 590 F. Supp. 2d at 804. In this
interlocutory appeal, the Government does not challenge the court’s sup-
pression of Day’s statements to Neville. Thus, our review is limited to the
status of Costa and Slader as Government agents and the suppression of
the marijuana and the statements made to them.
 UNITED STATES v. DAY 5
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 with-
out issuing a Miranda warning." Id. at 804. The court there-
fore 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 jurisdic-
tion 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 con-
cluding that Officers Costa and Slader were acting as Govern-
ment 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 below, we agree with the Govern-
ment and thus reverse and remand.3
3
In these circumstances, we need not reach the Government’s alterna-
tive contention that the marijuana and marijuana-related statements should
not have been suppressed because the marijuana-related statements were
made during a Terry stop, and not during a custodial interrogation requir-
ing Miranda warnings. Notably, this contention would not justify a com-
plete reversal of the district court’s suppression rulings, as the
Government acknowledges that the firearm-related statements are inad-
missible under Miranda if Costa and Slader were acting as Government
agents.
6 UNITED STATES v. DAY
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 (1971)) (internal quotation marks and alter-
ations omitted). The Fourth Amendment, however, "does not
provide protection against searches by private individuals act-
ing in a private capacity." Id. (citing United States v. Jacob-
sen, 466 U.S. 109, 113 (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 (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 req-
uisite 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 (quot-
ing Skinner v. Ry. Labor Executives’ Ass’n, 489 U.S. 602, 614
4
In Jarrett and Ellyson, we outlined the contours of the applicable test
in the context of a Fourth Amendment, rather than a Fifth Amendment,
claim. See Jarrett, 338 F.3d at 346-48 (assessing whether anonymous
computer hacker was acting as Government agent when he procured child
pornography files from defendant’s computer); Ellyson, 326 F.3d at 528-
29 (deciding whether defendant’s roommate acted as Government agent
when she located child pornography in shared residence and turned it over
to police).
 UNITED STATES v. DAY 7
(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 con-
duct; 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 consid-
eration").

B.

Here, in concluding that the private security guards, Offi-
cers 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 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 vet-
ted, 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 mini-
mum training standards established by the Board" and submit-
ting to a "state and national fingerprint search"); Va. Code
Ann. § 9.1-141(C)(6) (empowering the Board, inter alia, to
"[r]eceive complaints concerning the conduct of [an armed
security officer], to conduct investigations, and to take appro-
priate disciplinary action if warranted")). Furthermore, of
utmost importance to the court was the fact that, "[w]ithout
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." Id. at 801 (citing Va. Code
Ann. § 9.1-146 (authorizing an armed security officer "to
effect an arrest for an offense occurring . . . in his presence"
8 UNITED STATES v. DAY
"while at a location which the [private security services] busi-
ness is contracted to protect")).

Relevant to the first factor of the applicable agency test —
whether the Government "knew of and acquiesced in" the
challenged conduct of Officers Costa and Slader, see Jarrett,
338 F.3d at 344 — the district court determined that, in view
of Virginia’s regulatory scheme for armed security officers,
"the state is not a mere passive participant" in their conduct.
Day, 590 F. Supp. 2d at 801-02. "[R]ather," the court
explained, Virginia "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 gene-
sis of their power and activities rather than a mere passive
recipient of the largess of their actions." Id. at 802.5

With respect to the second factor of the applicable agency
test — whether Officers Costa and Slader "intended to assist
law enforcement or had some other independent motivation,"
see Jarrett, 338 F.3d at 344 — the district court found that
"[c]learly the officers acted with the intent of deterring crime
and assisting law enforcement." Day, 590 F. Supp. 2d at 802.
In light of all the circumstances, the court concluded that
Costa and Slader "were acting as governmental agents in their
interactions with Day." Id.
5
As further support for the proposition that Officers Costa and Slader
"were operating as de facto police on the night in question," the district
court observed that "[t]he 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)," and that "[b]oth officers were wearing
black uniforms with gold emblems on the sleeves, displaying a gold badge
virtually identical to a police shield, and bearing handguns," rendering
them "the quintessential image of law enforcement." Day, 590 F. Supp. 2d
at 802.
 UNITED STATES v. DAY 9
C.

Although the district court’s analysis has some appeal, we
ultimately cannot agree that Day met his burden of proving an
agency relationship between the Government and Officers
Costa and Slader. Cf. United States v. Poe, 556 F.3d 1113,
1117 (10th Cir. 2009) (ruling that private bounty hunters did
not qualify as state actors); United States v. Shahid, 117 F.3d
322, 323 (7th Cir. 1997) (concluding that private security offi-
cers at shopping mall were not acting as agents of Govern-
ment). In explaining why this is so, we address each factor of
the applicable agency test in turn.

1.

As discussed above, the first factor of the applicable test
concerns "whether the Government knew of and acquiesced
in the private" individual’s challenged conduct. Jarrett, 338
F.3d at 344. Significantly, "[i]n seeking to give content to this
factor, we have required evidence of more than mere knowl-
edge and passive acquiescence by the Government before
finding an agency relationship." Id. at 345 (citing Ellyson, 326
F.3d at 527-28). Thus, for example, in the case of an alleged
Fourth Amendment violation, "simple acquiescence by the
Government does not suffice to transform a private search
into a Government search. Rather, there must be some evi-
dence of Government participation in or affirmative encour-
agement of the private search before a court will hold it
unconstitutional. Passive acceptance by the Government is not
enough." Id. at 345-46.

In the district court’s view, because Virginia regulates
armed security officers — and particularly because it confers
on such officers the power to make certain arrests — the
Commonwealth "affirmatively encouraged" the challenged
conduct of Officers Costa and Slader. See Day, 590 F. Supp.
2d at 802. Virginia’s regulatory scheme, however, merely per-
mitted Costa and Slader to arrest Day; it did not require or
10 UNITED STATES v. DAY
even encourage an arrest or any other complained-of action.
Indeed, nothing in the regulatory scheme suggests that Costa
and Slader "would expect some benefit (e.g., receiving a
reward from the government) from taking the action, or
expect some detriment (e.g., getting in trouble with govern-
ment authorities) from not acting." See Shahid, 117 F.3d at
327 (describing situations where Government knew of and
acquiesced in private party’s conduct). For example, although
armed security officers are generally subject to disciplinary
action by the Commonwealth, see Va. Code Ann. § 9.1-
141(C)(6), nothing in this record indicates that Virginia could
have disciplined Costa and Slader for failing to act as they did
toward Day.

In these circumstances, we cannot agree with the district
court that Virginia’s regulatory scheme served to "affirma-
tively encourage" Costa and Slader’s challenged conduct.
Rather, Costa and Slader were simply empowered by the
Commonwealth to make an arrest. This "‘[m]ere governmen-
tal authorization’" for an arrest by Costa and Slader, "‘in the
absence of more active participation or encouragement,’" is
insufficient to implicate the Fourth and Fifth Amendments.
See Jarrett, 338 F.3d at 345 (quoting United States v. Wal-
ther, 652 F.2d 788, 792 (9th Cir. 1981)); cf. Poe, 556 F.3d at
1124 (explaining that "Oklahoma’s extensive statutory regula-
tion of the bail bonds industry, coupled with conferring the
powers of arrest," was insufficient to establish governmental
"knowledge of or acquiescence in the [bounty hunters’] chal-
lenged search" (internal quotation marks omitted)); Shahid,
117 F.3d at 327 (observing that "[t]he government cannot be
said to have induced" the challenged search by mall security
officers, who expected no "benefit or detriment from the gov-
ernment as a result of their actions").6
6
In certain circumstances, the conduct of a private party can be attri-
buted to the Government as the result of a regulatory scheme. For exam-
ple, in Skinner, the Supreme Court concluded that blood and urine tests
required by private railroads — in voluntary compliance with federal regu-
 UNITED STATES v. DAY 11
The proposition that Virginia did not participate in or
encourage the challenged conduct of Officers Costa and
Slader is reinforced by testimony given during the November
12, 2008 suppression hearing in the district court — testimony
uncontradicted by Day and not addressed by the court. Costa
testified that, as of the time of his encounter with Day on July
5, 2008, no law enforcement agency had ever given him any
directives concerning his work as a private security guard at
the Regency Lake apartment complex. More specifically,
Costa had received no instructions from the Chesterfield
police department regarding Day and expected no reward
from the police department for his actions that night. Simi-
larly, Slader testified that no state or federal law enforcement
agency directed his day-to-day activities as a security guard,
that he received no compensation from any state entity, and
that he neither expected nor received any reward from the
Chesterfield police department in connection with Day. Addi-
tionally, Officer Neville of the Chesterfield police department
— who was called to the scene and assumed custody of Day
only after Costa and Slader’s challenged conduct occurred —
testified that he had never directed the activities of any private
security guards at the Regency Lake apartment complex.
According to Neville, although he had responded to a call at
the apartment complex prior to July 5, 2008, he had never
previously interacted with the security guards there.

lations governing these tests — implicated the Fourth Amendment. See
489 U.S. at 614-15. The Court explained that "specific features of the reg-
ulations combine to convince us that the Government did more than adopt
a passive position toward the underlying private conduct." Id. at 615. Such
features "removed all legal barriers to the testing authorized by" the regu-
lations, "made plain [the Government’s] strong preference for testing,"
and expressed the Government’s "desire to share the fruits of such intru-
sions." Id. This case, by contrast, presents "the more usual situation in
which the government merely knows of or acquiesces in a private person’s
[conduct], whose fruits (e.g., drugs or a confession) are then appropriated
by the government for its own purposes." See Presley v. City of Char-
lottesville, 464 F.3d 480, 488 n.7 (4th Cir. 2006).
12 UNITED STATES v. DAY
In light of this undisputed evidence, there simply is no
basis for concluding that the Government participated in or
affirmatively encouraged Costa and Slader’s challenged con-
duct. Accordingly, Day cannot satisfy his burden on the first
factor of the applicable agency test.

2.

The second factor of the agency test concerns "whether the
private individual intended to assist law enforcement or had
some other independent motivation." Jarrett, 338 F.3d at 344.
With respect to this factor, the district court found that
"[c]learly the officers acted with the intent of deterring crime
and assisting law enforcement." Day, 590 F. Supp. 2d at 802.
Of course, the objective of "deterring crime" is entirely con-
sistent with Officer Costa and Slader’s responsibility to pro-
tect the tenants and property of the Regency Lake apartment
complex, irrespective of any simultaneous goal of assisting
law enforcement. See, e.g., J.A. 15 (testimony of Costa that
"we are there as a deterrent"). "In any event, even if the sole
or paramount intent of the security officers had been to assist
law enforcement, . . . such an intent would not transform a
private action into a public action" absent a sufficient showing
of Government knowledge and acquiescence under the first
factor of the agency test. See Shahid, 117 F.3d at 326 (internal
quotation marks omitted). Having concluded that Day failed
to satisfy the test’s first factor, he cannot yet establish that
Costa and Slader were acting as Government agents by satis-
fying the second factor. See Jarrett, 338 F.3d at 345 (recog-
nizing that, because Government conceded second factor of
agency test, private individual’s status as Government agent
turned on first factor thereof).

D.

Finally, we address a theory of agency relied on by the dis-
trict court and pursued in this appeal by Day: that, under the
"public function" test typically utilized for assessing a private
 UNITED STATES v. DAY 13
party’s susceptibility to a civil rights suit under 42 U.S.C.
§ 1983, Virginia’s conferral of arrest powers on Officers
Costa and Slader was enough to render them de facto police.
See Day, 590 F. Supp. 2d at 800-01 ("‘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.’" (quoting Romanski v.
Detroit Entm’t, L.L.C., 428 F.3d 629, 637 (6th Cir. 2005)).
Our Court has applied such a test, in Rodriguez v. Smithfield
Packing Co., to determine whether a plant security official
was a state actor for purposes of § 1983 liability. See 338 F.3d
348, 354-55 (4th Cir. 2003). As we explained in Rodriguez,
"[t]he Fourth Circuit has held that ‘one of the paradigmatic
means by which a private party becomes subject to section
1983 is through the government’s conferral upon that party of
what is, at core, sovereign power’ — a power, in other words,
that is ‘traditionally the exclusive prerogative of the State.’"
Id. at 354 (quoting Goldstein v. Chestnut Ridge Volunteer
Fire Co., 218 F.3d 337, 342 (4th Cir. 2000)); see also Roman-
ski, 428 F.3d at 636 ("Under the public function test, a private
entity is said to be performing a public function if it is exer-
cising powers traditionally reserved to the state . . . .").7

The Rodriguez plaintiffs brought § 1983 claims against a
plant security official, Daniel Priest, for constitutional viola-
tions allegedly committed during the plaintiffs’ August 22,
1997 arrests at the plant, in Bladen County, North Carolina,
by Priest and the Bladen County Sheriff’s Department. See
338 F.3d at 352. In analyzing whether Priest was a state actor
subject to § 1983 liability, we deemed the following facts to
be relevant to our inquiry:
7
The parties dispute whether, in the circumstances of Day’s suppression
motion, it is appropriate to apply a "free-standing" public function test or
to utilize such a test as part of analyzing the first factor of the agency test.
Because we conclude that Officers Costa and Slader were not state actors
under the public function test, we need not resolve this issue.
14 UNITED STATES v. DAY
Priest was an auxiliary deputy sheriff[, i.e., a sworn
deputy sheriff who is not on the payroll and works
at the discretion of the County Sheriff,] invested
with the full panoply of powers afforded to full-time
deputies, including the power to arrest. The County
Sheriff had given Priest primary responsibility in his
role as auxiliary deputy sheriff for a broad range of
law enforcement work at the plant, from conducting
criminal investigations and making arrests to serving
civil and criminal papers. On August 22, Priest was
working in concert with the Sheriff’s Department to
provide security in a potentially volatile situation. He
had a deputy sheriff badge clipped on his belt, a
sheriff’s department radio, handcuffs, pepper spray,
and a gun. And he testified that he told [one of the
plaintiffs] "Sheriff’s Department, you are under
arrest," handcuffed him, and enlisted another deputy
to help him take [that plaintiff] out of the building
and to the waiting police car.

Id. at 354-55. Priest’s actions were, as we observed, "the natu-
ral result of [his] official role within Bladen County, in which
he was expected to perform law enforcement functions at the
. . . plant on behalf of the Sheriff’s Department." Id. at 355.
These circumstances compelled the conclusion "that Priest
was acting under color of state law when making arrests at the
[plant] on August 22." Id. In so ruling, we observed that "[i]t
is beyond dispute that the police function is ‘one of the basic
functions of government,’" and that "an arrest is ‘the function
most commonly associated with the police.’" Id. (quoting
Foley v. Connelie, 435 U.S. 291, 297, 298 (1978)). As such,
we explained, "[i]t would be hard to imagine . . . a more pro-
totypically representative government function than Priest’s
use of his official capacity to effectuate the arrest of [the
plaintiffs]." Id.

In the Sixth Circuit’s Romanski decision, the plaintiff
sought to hold a casino security officer liable under § 1983 for
 UNITED STATES v. DAY 15
unlawful arrest. See 428 F.3d at 634. The court concluded
that, "[w]here 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." Id. at 637. By contrast, the court explained, pri-
vate security guards afforded "some police-like powers but
not plenary police authority" do not qualify as state actors. Id.
The court defined plenary police powers to include a private
security guard’s state-conferred authority, "while on her
employer’s property during her working hours," to "make
warrantless arrests to the same extent as a public police offi-
cer." Id. at 638 n.3. Thus, because the casino security officer
had the same authority to make a warrantless arrest of the
plaintiff as that conferred on public peace officers, the court
concluded that she was a state actor. See id. at 638.

Unfortunately for Day, neither our Rodriguez decision nor
the Sixth Circuit’s Romanski decision is helpful to him. First
of all, the facts pertaining to the state actor issue are not
nearly as compelling as in Rodriguez, where the private party
was operating in his official role as an "auxiliary deputy sher-
iff," served under the direction of and in concert with the
Sheriff’s Department, and was "invested with the full panoply
of powers afforded to full-time deputies, including," but not
limited to, "the power to arrest." See 338 F.3d at 354-55.8
Moreover, even assuming we would agree with the Romanski
8
Notably, we also deemed it relevant in Rodriguez that, at the time of
the challenged arrests, the private party was outfitted with an official dep-
uty sheriff badge and verbally identified himself as being with the "Sher-
iff’s Department." See 338 F.3d at 355. Meanwhile, it was significant to
the district court that, at the time of their encounter with Day, Officers
Costa and Slader were driving a vehicle similar to an unmarked police car
and wearing police-type uniforms and badges. See Day, 590 F. Supp. 2d
at 802. However, absent evidence indicating, for instance, that Costa and
Slader’s car, uniform, and badges were official police items used at the
Government’s behest — similar to the evidence in Rodriguez — we are
not persuaded that such items support the proposition that Costa and
Slader were state actors.
16 UNITED STATES v. DAY
court that plenary arrest authority alone could transform a pri-
vate individual into a state actor, Officers Costa and Slader
did not possess the same power to make warrantless arrests
afforded to Virginia police officers. As discussed above, Vir-
ginia authorizes an armed security officer "to effect an arrest
for an offense occurring . . . in his presence." Va. Code Ann.
§ 9.1-146 (emphasis added). The Commonwealth empowers
police officers, by contrast, to "arrest, without a warrant, any
person who commits any crime in the presence of the officer
and any person whom he has reasonable grounds or probable
cause to suspect of having committed a felony not in his pres-
ence." Id. § 19.2-81 (emphasis added).9 Indeed, not only is the
arrest power of armed security officers more circumscribed
than that of police officers, but it is also essentially the same
as that of any private citizen. See Hudson v. Commonwealth,
585 S.E.2d 583, 588 (Va. 2003) (recognizing that citizen may
make arrest for misdemeanor breach of peace or felony com-
mitted in his presence). Accordingly, unlike in Romanski,
Costa and Slader were not endowed with plenary arrest
authority, but rather were "permitted to exercise only what
were in effect citizens’ arrests." See Romanski, 428 F.3d at
9
Section 19.2-81 of the Code of Virginia identifies nine categories of
officers authorized to make warrantless arrests for suspected felonies com-
mitted outside their presence — a comprehensive list that noticeably
excludes armed security officers. The nine categories of authorized offi-
cers include the following: "Members of the State Police force of the
Commonwealth"; "Sheriffs of the various counties and cities, and their
deputies"; "Members of any county police force or any duly constituted
police force of any city or town of the Commonwealth"; "The Commis-
sioner, members and employees of the Marine Resources Commission
granted the power of arrest pursuant to § 28.2-900"; "Regular conservation
police officers appointed pursuant to § 29.1-200"; "United States Coast
Guard and United States Coast Guard Reserve commissioned, warrant,
and petty officers authorized under § 29.1-205 to make arrests"; "The spe-
cial policemen of the counties as provided by § 15.2-1737, provided such
officers are in uniform, or displaying a badge of office"; "Conservation
officers appointed pursuant to § 10.1-115"; and "Full-time sworn members
of the enforcement division of the Department of Motor Vehicles
appointed pursuant to § 46.2-217." Va. Code Ann. § 19.2-81.
 UNITED STATES v. DAY 17
639 (distinguishing Wade v. Byles, 83 F.3d 902, 906 (7th Cir.
1996) (concluding private security guard in public housing
authority building was not state actor)). We are therefore con-
strained to reject the proposition that, under the public func-
tion test, Costa and Slader were acting as de facto police and,
thus, were state actors.10

III.

Pursuant to the foregoing, we conclude that Day has not
met his burden of proving the existence of an agency relation-
ship between the Government and the private security guards,
Officers Costa and Slader, whose conduct is under challenge.
Accordingly, we reverse the district court’s suppression of the
marijuana seized by Costa and Slader, as well as the firearm-
and marijuana-related statements made to them by Day. We
remand for such other and further proceedings as may be
appropriate.

REVERSED AND REMANDED

DAVIS, Circuit Judge, dissenting in part and concurring in
the judgment in part:

Officers Costa and Slader, uniformed, armed security offi-
cers clothed with broad law enforcement authority by, and
subject to pervasive regulation under, Virginia law, detained
10
Our conclusion that Officers Costa and Slader were not state actors is
bolstered by an additional consideration: it does not appear that Virginia
would consider armed security officers to be state actors on these facts.
See Goldstein, 218 F.3d at 347 ("Another factor relevant to the state actor
determination is how the state itself views the entity."). The Court of
Appeals of Virginia has concluded in similar circumstances, for example,
that private department store security guards were not state actors required
to give Miranda warnings. See Mier v. Commonwealth, 407 S.E.2d 342,
345-46 (Va. Ct. App. 1991); see also Coston v. Commonwealth, 512
S.E.2d 158, 160 (Va. Ct. App. 1999) (recognizing "[t]he general rule" that
"a private security officer" is not "a public officer or public employee").
18 UNITED STATES v. DAY
Appellee Mario Day at gunpoint, handcuffed him, searched
his car and his person, and interrogated him, and thereby col-
lected critical evidence for the government in its prosecution
of Day. The majority expansively concludes, nevertheless,
that the officers’ actions were not "fairly attributable" to the
Commonwealth. See Brentwood Acad. v. Tenn. Secondary
Schs. Athletic Ass’n, 531 U.S. 288, 295; id. at 312 (Thomas,
J., dissenting). Consequently, the majority concludes that the
constraints imposed by the federal constitution on govern-
mental investigations of criminal activity had no application
in this case. I respectfully dissent from this holding.

Under the facts and circumstances shown on this record,
when Officer Costa retrieved the marijuana from Day’s pants
pocket, J.A. 22, and when he questioned the handcuffed Day
about Day’s possession of the handgun while they awaited the
arrival of a local law enforcement officer to take custody of
Day, id., Officer Costa was engaged in traditional law
enforcement activity plainly intended, as a matter of law, to
aid in the prosecution of Day for criminal offenses. Officer
Costa’s actions were made possible by and legitimized by
Virginia law; no private citizen could have achieved what he
did on behalf of the government under the circumstances
presented here.

Accordingly, Officer Costa’s interrogation of Day regard-
ing the latter’s possession of "anything illegal," his subse-
quent search of Day’s pants pocket and seizure of the
marijuana, and his later questioning regarding Day’s posses-
sion of the handgun, are all subject to scrutiny under prevail-
ing constitutional standards, every bit as much as they would
be if Officer Costa was a sworn governmental law enforce-
ment officer.

I am persuaded that, tested by those constitutional stan-
dards, Day’s admission that he possessed marijuana was the
product of neither an unreasonable seizure of his person nor
of custodial interrogation, and that the subsequent seizure of
 UNITED STATES v. DAY 19
the marijuana was reasonable under the Fourth Amendment.
By the time that Officer Costa questioned Day regarding the
handgun, however, Day’s detention had ripened into an arrest.
Accordingly, the handgun inquiry constituted an unwarned
custodial interrogation, contravening the mandate of Miranda
v. Arizona, 384 U.S. 436 (1966). Thus, I would reverse the
district court’s suppression of the marijuana and Day’s admis-
sion that he possessed it, but affirm the district court’s sup-
pression of Day’s statements to Costa regarding the handgun.

I.

The Supreme Court has never considered whether or under
what circumstances "state action" inheres in the exercise of
traditional police functions by state-authorized and regulated
armed security guards. Cf. Flagg Bros., Inc. v. Brooks, 436
U.S. 149, 163 n.14 (1978); Romanski v. Detroit Entertain-
ment, L.L.C., 428 F.3d 629, 636 (6th Cir. 2005) ("The
Supreme Court has explicitly declined to decide the question
of whether and under what circumstances private police offi-
cers may be said to perform a public function[.]").

The appropriate test for determining whether Officers
Costa and Slader should be deemed state actors under the cir-
cumstances shown here, and therefore whether well-settled,
constitutionally-rooted constraints on criminal investigations
apply, is the public function test. Under this test, a private
actor is deemed a state actor if the function performed is tradi-
tionally the exclusive prerogative of the State. Lugar v.
Edmondson Oil Co., Inc., 457 U.S. 922, 937 (1982); Gold-
stein v. Chestnut Ridge Volunteer Fire Co., 218 F.3d 337, 342
(4th Cir. 2000) (citing United Auto Workers v. Gaston Festi-
vals, Inc., 43 F.3d 902, 906 (4th Cir. 1995)). That public func-
tion must be "traditionally exclusively reserved to the State."
Jackson v. Metro. Edison Co., 419 U.S. 345, 352 (1974); see
Flagg Bros., 436 U.S. at 157.

As the Supreme Court has suggested, "police protection" is
among those functions "which have been administered with a
20 UNITED STATES v. DAY
great[ ] degree of exclusivity by States and municipalities[.]"
Flagg Bros., 436 U.S. at 163. This court has echoed the
Supreme Court’s recognition, noting that "the police function
is ‘one of the basic functions of government,’ [and] a ‘most
fundamental obligation of government to its constituency.’"
Rodriguez v. Smithfield Packing Co., Inc., 338 F.3d 348, 355
(4th Cir. 2003) (citing Foley v. Connelie, 435 U.S. 291, 297
(1978)). "It would be hard to imagine, in other words, a more
prototypically representative government function than [a pri-
vate security guard’s] use of his official capacity to effectuate
[an] arrest." Id.

Our sister circuits apply a totality of the circumstances test
to determine whether private security guards should be treated
as state actors, paying special attention to the arrest powers
granted to private security guards and the extent to which the
guards are licensed by and regulated by the state. E.g.,
Romanski, 428 F.3d at 640; Payton v. Rush-Presbyterian-St.
Luke’s Medical Ctr., 184 F.3d 623, 630 (7th Cir. 1999).

In Romanski, the court held that private security officers
licensed by the state and having plenary arrest powers
(although those arrest powers only applied when the guards
were on duty and on their employer’s property) were properly
deemed to act "under color of law" in a suit brought pursuant
to 42 U.S.C. § 1983. 428 F.3d at 640.1 There, a private secur-
ity guard at a casino detained and interrogated a patron sus-
pected of stealing a token and the patron sued, alleging Fourth
Amendment violations. The district court held that the casino
employee was a state actor as a matter of law because she
possessed the same arresting authority enjoyed by the police.
Id. at 634-35.
1
The "state action" inquiry mirrors the "under color of law" inquiry.
Lugar, 457 U.S. at 929; Philips v. Pitt County Memorial Hosp., 572 F.3d
176, 180 (4th Cir. 2009) ("The statutory color-of-law prerequisite is syn-
onymous with the more familiar state-action requirement—and the analy-
sis for each is identical."); Haavistola v. Cmty. Fire Co., 6 F.3d 211, 215
(4th Cir. 1993).
 UNITED STATES v. DAY 21
On appeal, the Sixth Circuit affirmed. Id. at 636. As cited
by the district court here, the Sixth Circuit held that "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[,]"
id. at 637, and found that the casino guard had sufficient
authority to qualify as a de facto police officer. The guard was
also licensed and vetted by Michigan’s department of state
police. By statute, the guard had "the authority to arrest a per-
son without a warrant as set forth for public peace officers . . .
." Id. (citing Mich. Comp. Laws §338.1080). Thus, the
Romanski standard looks to whether a private security guard
is licensed by the state and has "plenary police powers." Cf.
Lindsey v. Detroit Entertainment, LLC, 383 F.3d 824, 830
(6th Cir. 2007) (holding that casino security guards who were
not licensed by the state were not state actors).

The Seventh Circuit applied a similar test in reversing the
grant of a motion to dismiss a § 1983 claim. Payton, 184 F.3d
at 630. In Payton, the plaintiff brought a § 1983 claim based
on his allegation that two hospital security guards detained,
arrested, beat, struck, and kicked him without provocation. Id.
at 625. The district court granted the guards’ motion to dis-
miss on the basis that they did not act under color of law. Id.
Plaintiff appealed and the Seventh Circuit reversed and
remanded, holding that the guards could be deemed to act
under color of law because they had plenary arrest power and
were subject to the same rules as police officers. Id. at 628.
The court noted that, under the applicable law, the private
guards possessed "all of the powers of the regular police
patrol; and therefore, that they must "conform to and be sub-
ject to all the rules and regulations governing police officers
of the city." Id. at 630; see also Henderson v. Fisher, 631 F.2d
1115, 1119 (3rd Cir. 1980) (holding that university security
guards with plenary arrest powers on campus are state actors
for the purposes of §1983 claims); cf. Wade v. Byles, 83 F.3d
902, 906 (7th Cir. 1996) (holding that a private security guard
is not a public actor when he lacks plenary arrest authority
22 UNITED STATES v. DAY
and can only arrest people for criminal trespass pending the
arrival of the police).

Under these persuasive precedents, when private security
guards have "plenary police powers," Romanski, 428 F.3d at
637, and are licensed and heavily regulated by the state, they
may be deemed public actors. Courts do not withhold state
actor status based on whether a guard’s arrest powers are lim-
ited to a specific geographical area. See Payton, 184 F.3d at
629-30 (arrest powers limited to hospital grounds); Romanski,
428 F.3d at 639-40 (arrest powers limited to casino grounds).
Instead, the courts examine the scope of authority granted by
the state to the officers and evaluate the extent of the regula-
tion imposed by the state. Where guards have limited powers,
e.g., Wade, 83 F.3d at 905-06; Johnson v. LaRabida Chil-
dren’s Hospital, 372 F.3d 894, 897 (7th Cir. 2004), they are
not deemed public actors. When guards enjoy "plenary police
powers," however, they may, depending on the circumstances
presented, assume the obligations of a state actor.

Properly viewed, then, in an appropriate case, private
armed security guards in Virginia may be treated as public
actors. This is in part because they have generous arrest
authority. The guards may effectuate an arrest for any offense
occurring in their presence while on the premises they guard,
and even for some (primarily shoplifting-related) offenses not
occurring in their presence. Va. Code Ann. §9.1-146.2 Under
the statute, there are even circumstances when the law
requires that private security guards be deemed "arresting
officers." Id. In fact, few differences exist in the scope of
arrest authority between a private security guard and a state
2
This court has been willing to afford an extraordinarily broad construc-
tion to the "in the presence" criterion. U.S. v. McNeill, 484 F.3d 301, 312
(4th Cir. 2007) (holding that Maryland’s "in the presence" requirement for
arrests "does not mandate that every element of the crime occur in the offi-
cer’s presence, so long as the officer had sufficient evidence of all the ele-
ments and some were committed in his presence").
 UNITED STATES v. DAY 23
officer. Both may arrest for any crime committed in their
presence, and for some misdemeanor crimes committed out-
side their presence. An additional power vested in the police
is that they may arrest individuals for more numerous crimes
committed outside of their presence. But of course, police
officers themselves are limited to making arrests for crimes
committed outside their presence to situations where they
have "reasonable grounds or probable cause to suspect of hav-
ing committed a felony not in his presence." Va. Code Ann.
§ 19.2-81. This difference in arrest power is sufficiently insig-
nificant to declare that Virginia guards possess authority akin
to plenary authority.3 See Romanski, 428 F.3d at 638 n.3
(defining plenary police powers as state-conferred authority,
"while on her employer’s property during her working hours,"
to "make warrantless arrests to the same extent as a public
police officer"). Manifestly, the power to arrest confers the
power to search in a wide range of circumstances. See Chimel
v. California, 395 U.S. 752, 759 (1969). Such authority was
precisely that exercised by Officer Costa in this case.

Private security guards are also subject to a high level of
government regulation. See Va. Code Ann. §9.1-138 et seq.
As the court below explained, and the majority opinion notes,
private security guards are "vetted, trained, and continue to be
subject to disciplinary action under the aegis of the state’s
Criminal Justice Services Board." Maj. Op. at 7; Day, 590 F.
3
The majority argues that the private security guard’s role is the same
as a private citizen with respect to arrest authority. See Maj. Op. at 15-16
(citing Hudson v. Commonwealth, 585 S.E.2d 583, 588 (Va. 2003)). This
assertion is not true. See Va. Code Ann. §9.1-146. Private security guards
have arrest authority that extends beyond crimes committed in their pres-
ence. Id. Additionally, in some cases, the statute actually transforms a pri-
vate security guard into an "arresting officer," a privilege never accorded
to citizens undertaking citizens’ arrests. Id. It will be the rare citizen who
effects an "arrest" employing handcuffs; so-called "bounty hunters" may
well comprise a set of one. United States v. Poe, 556 F.3d 1113, 1123-24
(10th Cir. 2009), cert. denied, 130 S.Ct. 395, 2009 WL 1604770 (U.S.
Oct. 13, 2009).
24 UNITED STATES v. DAY
Supp. 2d at 801. Additionally, Virginia regulations require
armed security officers to obtain a "valid registration" by sat-
isfying "compulsory minimum training standards established
by the Board" and submitting to a "state and national finger-
print search." Day, 590 F. Supp. 2d at 800 (discussing Va.
Code Ann. § 9.1-139). Virginia also employs the Criminal
Justice Services Board to "[r]eceive complaints concerning
the conduct of [an armed security officer], to conduct investi-
gations, and to take appropriate disciplinary action if war-
ranted." Maj. Op. at 7 (discussing Va. Code Ann. § 9.1-141).
In short, Virginia has a comprehensive regulatory scheme for
its private security guards.

Because under Virginia law armed security guards are sub-
ject to extensive government regulation and enjoy extensive
police powers, and because Officers Costa and Slader actually
exercised those powers in this case, I would affirm the district
court’s order insofar as it deemed the private security guards
in this case public actors in connection with their apprehen-
sion of Day, and I would require them to adhere to the same
constitutionally-rooted constraints as ordinary police officers.
This conclusion finds ample support among the courts of
appeals.4

II.

The majority, instead of applying a public function test tai-
lored to armed private security guards, relies on a test
intended to aid in the assessment of the activities of private
individuals who become police informants and who mine
information and report or deliver it to law enforcement. That
test, the Jarrett/Ellyson test, inquires whether the government
4
Romanski, 428 F.3d at 640; Rodriguez, 338 F.3d at 355; Payton, 184
F.3d at 627-630; Lusby v. T.G. & Y. Stores, Inc., 749 F.2d 1423 (10th Cir.
1984); Henderson v. Fisher, 631 F.2d 1115, 1118-19 (3rd Cir. 1980);
Traver v. Meshriy, 627 F.2d 934 (9th Cir. 1980); El Fundi v. Deroche, 625
F.2d 195, 196 (8th Cir. 1980).
 UNITED STATES v. DAY 25
knew of and acquiesced in the private individual’s challenged
conduct, and whether the private individual intended to assist
law enforcement or had some other independent motivation.
Maj. Op. at 7. But that test is inapplicable here for at least two
reasons.5 First, it was derived from a very different factual
context and should not be remolded to control these facts.
United States v. Jarrett, 338 F.3d 339, 344-46 (4th Cir. 2003)
(determining that an anonymous computer hacker was not act-
ing as a Government agent when he procured child pornogra-
phy files from defendant’s computer and delivered via email
to law enforcement); United States v. Ellyson, 326 F.3d 527-
28 (4th Cir. 2003) (determining that defendant’s live-in girl-
friend did not act as government agent when she located child
pornography in their shared residence and turned it over to
police because she acted of her own accord and not under the
direction of the police).

Second, the majority misses the forest for the trees. The
appropriate analysis requires an evaluation of the totality of
the circumstances. Jarrett and Ellyson provide two illustrative
examples of that test, but they should not be read to supplant
the test itself. In fact, this court "has articulated a number of
5
Arguably, the facts here satisfy the Jarrett/Ellyson test. The second ele-
ment is fulfilled: the guards clearly intended to assist law enforcement
when they detained, searched and interrogated Day. The majority opinion
seemingly concedes this point, arguing that this case turns on the test’s
first element. Maj. Op. at 12. Further, Virginia’s statutory scheme comes
very close to satisfying the test’s first element. The Commonwealth cloaks
these guards with a comprehensive imprimatur of state authority. The
guards must pass background checks and meet state training requirements,
and when they do, the Commonwealth imbues them with expansive arrest
and search powers. It even considers them to be, at times, arresting offi-
cers. Va. Code Ann. §9.1-146. Although the Commonwealth may not have
advance knowledge of every individual arrest and search undertaken by a
private security guard, the same is true of its sworn law enforcement offi-
cers. The Commonwealth cannot feign ignorance when armed private
security guards do exactly what they are trained, regulated, licensed, and
authorized to do: detain and arrest individuals, execute attendant searches,
and conduct interrogations of suspects.
26 UNITED STATES v. DAY
different factors or tests in different contexts," for the public
function test and the facts "which would convert the private
party into a state actor [vary] with the circumstances of the
case." Goldstein, 218 F.3d at 342-43 (citing Lugar, 457 U.S.
at 937).

I would limit application of the Jarrett/Ellyson test to cases
involving private persons acting as police informants, a meth-
odology supported by the analysis in the cases themselves. In
both cases, this court explicitly eschewed a formalistic test,
instead noting that the analysis is fact-intensive, Ellyson, 326
F.3d at 527, and "can only be resolved in light of all of the
circumstances." Jarrett, 338 F.3d at 344 (quoting Skinner v.
Railway Labor Executives’ Ass’n, 489 U.S. 602, 614-15
(1989)).

Thus, Jarrett and Ellyson provide a useful framework for
analyzing government informants under the public function
test. But those two cases do not transform the general inquiry
into a strict two-factor analysis. The overarching issue
remains whether the conduct of the private actors is fairly
attributed to the state. Brentwood Academy, 531 U.S. at 295.
In Jarrett and Ellyson, this court focused on the two aspects
of the totality of the circumstances, factors that were particu-
larly relevant as to government informants acting without
governmental supervision.

But the appropriate test for this case must focus on the par-
ticularities of armed private security guards, their authority
and the manner in which they exercise that authority, a funda-
mentally different scenario than that presented with regard to
government informants, and one discussed only in persuasive
precedent from our sister circuits. Private security guards
have arrest authority and are subject to significant govern-
mental regulation, two factors completely absent from the
analysis for government informants.6 Accordingly, instead of
(Text continued on page 28)

6
The majority opinion also cites to Virginia court decisions to bolster
its approach. Maj. Op. at 17 n.10. Because this case addresses a federal
 UNITED STATES v. DAY 27
constitutional issue, I do not find the Virginia courts’ analyses particularly
useful. Cf. Virginia v. Moore, 128 S.Ct. 1598, 1608 (2008) ("[I]t is not the
province of the Fourth Amendment to enforce state law.") Further, the
cases cited by the majority do not support its assertion that armed security
officers may never be deemed state actors.
The majority cites Goldstein for the proposition that it should consider
how the courts of Virginia view the state action issue. Maj. Op. at 17 n.10.
In Goldstein, the court held that a volunteer fire company in Maryland was
a state actor under a totality of the circumstances test. Goldstein, 218 F.3d
at 348. This court assessed four factors in its analysis: "(1) the indicia of
state involvement; (2) the functions carried out by the actor; (3) the nature
of the relationship between the state and the actor; and (4) the powers and
authorities that had been conferred upon the actor by the state." Id. The
majority is correct that Goldstein states that the courts sometimes consider
the state’s analysis as a part of the totality of the circumstances test,
although even the majority gives this requirement short shrift, addressing
it only in a single footnote added to the last page of the opinion.
But Goldstein actually undercuts the majority’s preferred approach
here. The court in Goldstein applied a totality of the circumstances test.
Id. at 342. This test is of course the same one rejected by the majority in
favor of the crabbed two-pronged approach derived from Ellyson and Jar-
rett.
Moreover, the Virginia case law cited by the majority fails to support
the majority’s case. Mier, Maj. Op. at 17 n.10, is inapposite because it is
factually distinguishable. Mier v. Commonwealth, 407 S.E.2d 342 (Va.
App. 1991). In Mier, the court held that mall security guards were not pub-
lic actors because their authority was limited to temporarily detaining
apprehended shoplifting suspects. Id. at 346. But the guards in Mier
enjoyed significantly less authority than Officers Slader and Costa. The
guards drew their authority from Va. Code §18.2-105.1, a statute that
solely permits the detention of suspected shoplifter for one hour pending
the arrival of a law-enforcement officer, and Va. Code §18.2-105, repealed
and replaced by §8.01-226.9, which exempts the detainer from civil liabil-
ity. Id. at 345.
In Coston, the Court of Appeals of Virginia held that when a registered
security officer is "engaged in a duty specifically granted by statute, that
officer is a public officer or public employee." Coston v. Commonwealth,
512 S.E.2d 158, 159-160 (Va. App. 1999). In Coston, the security guard
was acting pursuant to Va. Code § 19.2-74, which entitles a registered
28 UNITED STATES v. DAY
following a test created for a distinguishable set of facts, I
prefer a specific fact-based inquiry targeted at the authority
granted by statute to, and its exercise by, armed private secur-
ity guards, similar to the test used in Sixth and Seventh Cir-
cuits.

III.

As explained above, I would conclude that Day satisfied his
burden of establishing that the armed private security guards
who detained and searched him must be deemed state actors.
Turning, then, to the merits of the district court’s suppression
order, I conclude that the district court (1) erred when it sup-
pressed Day’s statement about the marijuana and when it sup-
pressed the physical evidence itself, but (2) did not err in
suppressing Day’s statement regarding his possession of the
handgun.7

security officer to issue summons. The court treated the officer as a private
security guard because he acted pursuant to his duty "specifically granted
by statute." The same reasoning applies to the instant case. Officers Costa
and Slader acted pursuant to authority specifically granted by statute when
they detained defendant Day for a Terry stop. Va. Code Ann. 9.1-146 ("A
registered armed security officer of a private security services business
while at a location which the business is contracted to protect shall have
the power to effect an arrest for an offense occurring (i) in his presence
on such premises.").
7
There is some uncertainty in the record as to whether the district court
intended to suppress the marijuana seized from Day under Miranda. In
any event, it is settled that the exclusionary rule does not apply to physical
evidence discovered as a result of a Miranda violation. United States v.
Patane, 542 U.S. 630, 634 (2004); U.S. v. Sterling, 283 F.3d 216, 219 (4th
Cir. 2002). Day does not contend otherwise. Rather, he argues that the
marijuana was properly suppressed as the fruit of an unreasonable search
under the Fourth Amendment. For the reasons stated in text, I reject this
contention.
 UNITED STATES v. DAY 29
A.

Officer Costa did not violate Day’s Miranda rights when he
asked him "if he had anything illegal on him[,]" J.A. 22,
because the question was not part of a custodial interrogation.
Law enforcement officers making an arrest must give
Miranda warnings before conducting custodial interrogations.
Miranda, 384 U.S. at 444. Custodial interrogation is "ques-
tioning initiated by law enforcement officers after a person
has been taken into custody or otherwise deprived of his free-
dom of action in any significant way." Id. But Miranda warn-
ings are unnecessary before questioning a suspect during a
Terry stop. United States v. Leshuk, 65 F.3d 1105, 1108-09
(4th Cir. 1995). Here, Costa’s question (put to Day in the ini-
tial moments of the latter’s detention by the former) was
merely intended to safeguard the situation during a Terry stop.

An individual is in custody "when, under the totality of the
circumstances, a suspect’s freedom from action is curtailed to
a ‘degree associated with formal arrest.’" U.S. v. Colonna,
511 F.3d 431, 435 (4th Cir. 2007) (quoting Berkemer v.
McCarty, 468 U.S. 420, 440 (1984)). The operative question
is whether, viewed objectively, a reasonable man in the sus-
pect’s position would have understood that he was in custody.
Berkemer, 468 U.S. at 422. Among the facts to be considered
are "the time, place and purpose of the encounter, the words
used by the officer, the officer’s tone of voice and general
demeanor, the presence of multiple officers, the potential dis-
play of a weapon by an officer, and whether there was any
physical contact between the officer and the defendant."
United States v. Weaver, 282 F.3d 302, 312 (4th Cir. 2002).

In this circuit, an officer’s use of a drawn weapon and/or
handcuffs does not necessarily transform a Terry stop into an
arrest. Further, even a complete restriction of liberty is valid
under Terry if the restriction is brief. United States v. Sinclair,
983 F.2d 598, 602 (4th Cir. 1993) (holding that drug dealers
were not in custody merely because law enforcement officers
30 UNITED STATES v. DAY
drew their guns during a Terry stop as a reasonable safety pre-
caution); United States v. Crittendon, 883 F.2d 326, 328 (4th
Cir. 1989) (holding that a stop and frisk is not necessarily
converted into an arrest when defendant was handcuffed prior
to the pat down search).

Here, Day was not in custody for purposes of Miranda
when he admitted, in response to Costa’s question regarding
whether he possessed "anything illegal," that he possessed
marijuana. The place of the arrest suggests that it was merely
a brief detention: defendant was outside his own car, in a pub-
lic place; not inside the guards’ car or at the police station.
Only two guards and one car were present at the time of the
detention. Further, the officers used their firearms and hand-
cuffs for their own safety, just as in Sinclair and Crittendon.
As the government notes, the incident started with a scream-
ing match between multiple individuals, and the guards’
actions were necessary and reasonable to safeguard the situa-
tion and ensure the public safety. Terry, 392 U.S. at 20 (per-
mitting actions "reasonably related in scope to the
circumstances which justified the interference in the first
place."); United States v. Hensley, 469 U.S. 221, 235 (1985)
(finding officers conducting Terry stops may "take such steps
as [are] reasonably necessary to protect their personal safety
and to maintain the status quo during the course of the stop.").8
8
To be sure, some factors do militate in favor of a finding of custody.
The officers commanded Day to "freeze" as they ran towards him. At least
one gun was pointed at Day the entire time, and he was handcuffed and
frisked. J.A. 22. The detention occurred in the middle of the night, more
than one guard was present, and Day’s liberty was severely restricted. J.A.
20-21, 31. These factors would make a reasonable person believe that he
was not free to leave, but under Fourth Circuit precedent, shouting, guns,
and handcuffs do not instantaneously transform the guards’ stop into an
arrest—instead, courts must analyze the totality of the circumstances. Ulti-
mately, the circumstances here comprise a Terry stop-and-frisk and not
Miranda custody. U.S. v. Moore, 817 F.2d 1105, 1108 (4th Cir. 1987)
(collecting cases and concluding that drawing weapons, handcuffing a sus-
pect, placing a suspect in a patrol car for questioning, or using or threaten-
ing to use force does not necessarily elevate a lawful stop into a custodial
arrest for Miranda purposes).
 UNITED STATES v. DAY 31
As Day was not in custody for Miranda purposes in the
earliest moments of his encounter with the officers, Day’s
admission during those moments that he possessed marijuana
should not have been suppressed as the product of unwarned
custodial interrogation.

B.

Once Day admitted that he possessed marijuana, a reason-
able law enforcement officer would have probable cause to
arrest Day and to search his person incident to the arrest. See
U.S. v. Powell, 886 F.2d 81, 83 (4th Cir. 1989), abrogated on
different grounds, U.S. v. Angle, 230 F.3d 113 (4th Cir. 2000).
Viewed objectively, as it must be, Cloaninger ex rel. Estate
of Cloaninger v. McDevitt, 555 F.3d 324, 334 (4th Cir. 2009)
(citing Beck v. Ohio, 379 U.S. 89, 91 (1964)), that is precisely
what occurred here. Thus, Costa’s search of Day’s pants
pocket was reasonable: it was fully supported by probable
cause to arrest Day, and was incident thereto.

C.

After Day admitted to possessing marijuana and after the
marijuana had been seized, the Terry stop initiated by Costa
and Slader ripened into a de facto arrest; i.e., custody. That is,
after the officers secured the illegal substance, a critical aspect
of the encounter shifted: its purpose. Before the drugs were
secured, Costa and Slader acted to stabilize a potentially dan-
gerous situation and to investigate the circumstances before
them. But when they discovered that Day possessed illegal
narcotics, their goal evolved into detaining Day until the local
law enforcement arrived. This change in purpose, in combina-
tion with the passage of time, alters the custody analysis.9 See
Weaver, 282 F.3d at 312.
9
Although the proper analysis is whether a reasonable man in the sus-
pect’s position would have understood that he was in custody, Berkemer,
468 U.S. at 422, it is telling that the local law enforcement officer testified
that when he arrived, Costa and Slader held Mario Day "in custody." J.A.
45.
32 UNITED STATES v. DAY
While Costa held Day in custody and awaited the arrival of
local law enforcement officers, he questioned Day as to the
reasons why he was in possession of the weapon. J.A. 24-25.
This questioning indisputably qualifies as an interrogation,
and as previously explained, Day was in custody during this
period. Accordingly, I would affirm the district court’s order
suppressing the statements made by Day to officer Costa
regarding his ownership and possession of the weapon.

IV.

In sum, Officer Costa essentially conducted a full blown
investigation into the circumstances confronting him when he
encountered Mario Day on July 5, 2008. The officer entered
Day’s vehicle to search it and to seize the handgun he had
observed Day place on the floorboard. J.A. 21-22. He
detained Day at gunpoint and handcuffed him. J.A. 22. He
questioned him regarding Day’s possession of "anything ille-
gal," and upon learning that Day possessed marijuana, he
searched Day’s person and seized the marijuana, as any rea-
sonable and respectable law enforcement officer would. Id.
He then proceeded to question Day about the firearm. J.A. 24-
25. All these acts were for the benefit of a potential prosecu-
tion of Day on any and all criminal offenses that might be laid
against him. Virginia law made the collection of the disputed
evidence possible. It is difficult to imagine how anyone but a
law enforcement officer could have achieved these results.

It is undoubtedly true that the Fourth Amendment "does not
provide protection against searches by private individuals act-
ing in a private capacity," Jarrett, 338 F.3d at 344 (emphasis
added). But that is not what the record here shows.

***

For the reasons stated, I would affirm in part and reverse
in part the district court’s order suppressing evidence and
remand this case for further proceedings.