Stop & Search By Private Security Guards Not Subject to Fourth, Fifth Amendments

US v. Day: Day was at an apartment complex when he was confronted by two "armed security officers," whom the commonwealth of Virginia has blessed with the power to arrest. The officers saw Day and another man standing outside an apartment, apparently arguing with someone inside. Day allegedly drew a gun from a nearby car and pointed it towards the apartment. At that point, the "armed security officers" rolled up, drew their weapons, and commanded Day to "freeze." Day put the gun back in the car and put his hands up. Officers restrained Day, performed a pat down (without finding anything), and asked Day questions about whether he had anything on him and about the gun. Day admitted having some marijuana in a coat pocket and admitted carry the gun for personal protection.

Day was indicted for being a drug user in possession of a firearm and possession of marijuana. He moved to suppress the evidence found as a result of this encounter, which the district court partially granted. The district court concluded that the "armed security officers" were state actors bound by the Fourth and Fifth Amendments when they contacted Day. Analyzing their actions under Terry and other relevant precedents, the district court suppressed the marijuana and all statements made by Day, but upheld the seizure of the gun. The Government sought an interlocutory appeal the day before Day was to go on trial.

On appeal, the Fourth Circuit reversed the district court's partial grant of Day's motion to suppress. The court disagreed with the district court's conclusion that the "armed security officers" were state agents and that therefore there were any Constitutional protections available to Day in the first place. The fact that Virginia law authorized the officers to arrest Day (but did not require, recommend, or reward it) was not sufficient to conclude that the commonwealth "affirmatively encouraged" their conduct. The court rejected Day's reliance on similar cases arising in 1983 litigation, noting that the evidence of a state-private agency relationship in those cases was much stronger.

Judge Davis concurred and dissented, arguing that regardless of the agency issue, the officers' actions did not violate the Fourth or Fifth amendments.