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Miranda warnings from private guards?

A drug defendant’s statements to a private security guard need not be suppressed, the 4th U.S. Circuit Court said last Friday, reversing a Richmond federal district court’s suppression order.

Virginia’s system of state regulation of private security guards through Virginia Code § 9.1-146 does not necessarily mean the guards were acting as state agents when they questioned the defendant at a Chesterfield County apartment complex, the appellate court said in U.S. v. Day. The officers were on patrol after midnight when they heard people arguing and observed the defendant Mario Day retrieve a gun from a car and move in on an apartment, “low and ready.”

Without offering Miranda warnings, the guards asked Day if he had “anything illegal” on him. Day admitted to having a little marijuana, and said he carried the gun for his safety.

Senior U.S. District Judge Richard L. Williams suppressed the marijuana evidence, but not the firearm. Writing for the panel majority, 4th Circuit Judge Robert B. King rejected Williams’ view that, 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 officers’ conduct.

The private guards did not meet the test for government agents, King concluded. Judge Andre Davis, newest member of the 4th Circuit bench, dissented in part. Looking to a “public function” test, Davis said private guards who have “plenary police powers” may be deemed public actors. Davis said the majority mistakenly applied a “public function” test intended to assess the activities of private individuals who become police informants.
By Deborah Elkins

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