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Thread: Fourth Circuit allows private security guards to arrest and search W/O warrant

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    Regular Member Repeater's Avatar
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    VA's mere licensing armed private security guards not state action in a particular search

    The fact private security guards in Virginia are regulated and licensed by the state does not make them state actors in any case where they conduct a search and seizure. The fact the state had disciplinary authority over these guards does not make agency or that they were encouraged in their actions by the state. United States v. Day, 2010 U.S. App. LEXIS 429 (4th Cir. January 8, 2010), revg United States v. Day, 590 F. Supp. 2d 796 (E.D. Va. 2008) (posted here):
    In these circumstances, we cannot agree with the district court that Virginia's regulatory scheme served to "affirmatively encourage" Costa and Slader's challenged conduct. Rather, Costa and Slader were simply empowered by the Commonwealth to make an arrest. This "'[m]ere governmental 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. Walther, 652 F.2d 788, 792 (9th Cir. 1981)); cf. Poe, 556 F.3d at 1124 (explaining that "Oklahoma's extensive statutory regulation 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'] challenged 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 government as a result of their actions").
    From the opinion, final paragraph:
    Pursuant to the foregoing, we conclude that Day has not met his burden of proving the existence of an agency relationship 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.
    This suggests private security guards can conduct warrantless arrests and searches and turn over anything of interest to the police for later use.

    The cops did not directly violate the arrestee's 4th Amendment rights, so they get to benefit from the guards assaults.

    Another masterpiece from your government-friendly Fourth Circuit.

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    I haven't read everything, yet. So, ignore what seems contradicted.

    The tricky part about court decisions is that they only address the questions presented.

    On a quick glance, it would seem the defendant was tryingtosuppressevidence under theexclusionary rule.Lots ofcourt dicta (discussion)about the exclusionary rule since the early 1900's when it was firstformulated, including, if I remember correctly,recent discussion by Scalia that the exclusionary ruleis meant to discourage police misconduct (not security guard misconduct). As I recall,a recent case was even decided in favor of not suppressing certain evidence in a certain case because applying theexclusionary rule would not have served to discourage police.Not unlike this case here where the application of theexclusionary rule would not discourage police because it wasn't police who done it. I'm not saying this is good or bad. I'm just giving the government's rationale as I understand it.

    But, noneof this absolves any private actor oftrespass if you are seized or searched. In days gone by, ifyourneighbor searched your house without a warrant or with a defective warrant he was actionable for the trespass.1 If the warrant was defective, the issuing magistrate was actionable.

    On a very superficial skim-over, I'm guessing that any existing common law or statutes restricting private actors is still in place.



    1. Are Cops Constitutional? Roger Roots

    http://www.constitution.org/lrev/roots/cops.htm
    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

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    Regular Member t33j's Avatar
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    This isn't news to me. I always understood that the security guards in this case would be breaking the law (Assault etc...) assuming you do not submit to a search. In the end, evidence still makes it to court but the guards could be prosecuted as well. Like I said, that just how I understand it...
    Sic Semper Tyrannis

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    Campaign Veteran skidmark's Avatar
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    I do not see this decision as necessarily being "another... from the government-friendly 4th Circuit" although it does appear on the surface to fall near that pigeonhole.

    What I find interesting is that there was no mention whatever of the DCJS training required for security guards to make arrests as opposed to issuing a summons. DCJS requires the completion of a specific core course after attaining the Armed Guard status in order to make an arrest. Without that endorsement an Armed Guard is still relegated to onlydetaining for the purpose of issuing a summons. So all I can do is presume that these 2 Armed Guards possessed the requisite endorsement to make an arrest.

    Failing that, they are not even permitted to make a citizen's arrest while on duty, and are limited to detaining shoplifters under rather specific circumstances. Again, I am surprised that no mention was made at all of the endorsement they do or do nothold from DCJS. I also find it "instructive" that the 4th Circuit was willing to gloss over the specific training/endorsement and state that "all" armed security guards hold the power of arrest for crimes committed in their presence. http://www.dcjs.virginia.gov/pss/documents/scp/regs.pdf vs. http://leg1.state.va.us/cgi-bin/legp...00+cod+9.1-138

    What I see is sloppy adjudication that in effect extends the authorization of a limited permission to a broad generalized permission. If the justices cannot clarify the distinctions in permitted powers with any specificity, then how can a "reasonable person" (if any are armed security guards) be expected to understand the limitations placed by both DCJS and the Code of Virginia?

    stay safe.

    skidmark
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    Regular Member virginiatuck's Avatar
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    I was able to read a few pages of a book on Google called "Private Security Law: Case Studies."

    Page 265 states:
    Searches by private citizens might be permissible in one of the following situations.
    • Actual consent
    • Implied consent
    • In some instances, and then limited, as incidental to a valid arrest or detention
    If consent is obtained, it must be given freely, voluntarily, and knowingly.



    It then goes on to discuss BURDEAU v. McDOWELL (1921).

    Basically, some papers were stolen by a private entity and given to the Government to be used against the defendant at trial. A District court ruled that the papers/property should be returned to the owner and could not be used. Appeal to SCOTUS reversed it and held that the stolen property could be used as evidence because there was no wrong-doing by the Government.

    The dissent:
    MR. JUSTICE BRANDEIS dissenting with whom MR. JUSTICE HOLMES concurs.
    Plaintiff's private papers were stolen. The thief, to further his own ends, delivered them to the law officer of the United States. He, knowing them to have been stolen, retains them for use against the plaintiff. Should the court permit him to do so?

    That the court would restore the papers to plaintiff if they were still in the thief's possession is not questioned. That it has power to control the disposition of these stolen papers, although they have passed into the possession of the law officer, is also not questioned. But it is said that no provision of the Constitution requires their surrender, and that the papers could have been subpoenaed. This may be true. Still I cannot believe that action of a public official is necessarily lawful because it does not violate constitutional prohibitions and because the same result might have been attained by other and proper means. At the foundation of our civil liberty lies the principle which denies to government officials an exceptional position before the law and which subjects them to the same rules of conduct that are commands to the citizen. And, in the development of our liberty, insistence upon procedural regularity has been large factor. Respect for law will not be advanced by resort, in its enforcement, to means which shock the common man's sense of decency and fair play.


    Even if the dissent in Burdeau was the majority opinion, and the District court decision had not been reversed, it still might not have any affect on today's case; in today's case, the property in question was contraband (marijuana). Can contraband even be considered property?


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    virginiatuck wrote:
    SNIP Can contraband even be considered property?
    Oh, hell. The JBTs don't even bother to stop at just contraband. See the asset forfeiture laws. They'll seize stuff that is not contraband and is plainly property.
    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

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    However if those security guards had been appointed as "conservators of the peace" or "special" or "auxilliary" police officers, then they would be "state actors".

    Here's another tidbit: a person is absolutely entitled to resist a false arrest in Virginia, using such force as may be necessary under the circumstances, up to and including deadly force (keep in mind the self-defense rule). Of course, that means that one has to know what constitutes a "false arrest".
    Daniel L. Hawes - 540 347 2430 - HTTP://www.VirginiaLegalDefense.com

    By the way, nothing I say on this website as "user" should be taken as either advertising for attorney services or legal advice, merely personal opinion. Everyone having a question regarding the application of law to the facts of their situation should seek the advice of an attorney competent in the subject matter of the issues presented and licensed to practice in the relevant state.

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    Regular Member paramedic70002's Avatar
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    When I was a private armed security officer I had many occasions to 'educate' the youth of the day that I could not infringe on their rights because I was an agent of the private property manager, not an agent of the government.
    "Each worker carried his sword strapped to his side." Nehemiah 4:18

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    Regular Member simmonsjoe's Avatar
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    Interesting. So using a 3rd party with partial immunity and having them commit a minor crime to circumvent the 4A is ok? **** that.
    illegal ≠ immoral legal ≠ moral
    [SIZE=1]"I never submitted the whole system of my opinions to the creed of any party of men whatever in religion, in philosophy, in politics, or in anything else where I was capable of thinking for myself. "Such an addiction is the last degradation of a free and moral agent." - Thomas Jefferson
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    Campaign Veteran skidmark's Avatar
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    simmonsjoe wrote:
    Interesting. So using a 3rd party with partial immunity and having them commit a minor crime to circumvent the 4A is ok? @#$% that.
    The whole point is that The State and Its Minions never asked these private actors to do anything, but The State and Its Minions knew that they could profit from what would otherwise be an unconstitutional act.

    Just as we preach that it is your best interest to know your rights as regards interaction with The State and Its Minions, it is time to start preaching the need to know your rights when interacting with private security. What we have treads awfully close to false inprisonment/kidnapping and theft, as well as really poor lawyering on the defense side. Criminal charges against the private security guards could have poisoned the fruit.

    It's just too bad the really good cases always (almost always?) seem to involve folks who are not charter members of the Bible-study group.

    stay safe.

    skidmark
    "He'll regret it to his dying day....if ever he lives that long."----The Quiet Man

    Because stupidity isn't a race, and everybody can win.

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    skidmark wrote:
    SNIP It's just too bad the really good cases always (almost always?) seem to involve folks who are not charter members of the Bible-study group.
    Headline:



    SKIDMARK WANTS PATRIARCHS AND PROPHETS

    BROUGHT UP ON CHARGES



    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

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    Regular Member simmonsjoe's Avatar
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    Wow Skidmark, why don't you burn them at the stake while your at it.
    illegal ≠ immoral legal ≠ moral
    [SIZE=1]"I never submitted the whole system of my opinions to the creed of any party of men whatever in religion, in philosophy, in politics, or in anything else where I was capable of thinking for myself. "Such an addiction is the last degradation of a free and moral agent." - Thomas Jefferson
    G19 Gen 4; Bersa Thunder 380; Sig Sauer P238; Kel-Tec su-16c

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    I thought Skidmark's observations are pretty close to reality. In that he's communicating with us about reality (including the reality of the legal system), he's being a "prophet". A "prophet" isn't the same as "fortune teller", after all, it's more like "soothsayer". It's not his fault the truth isn't to our liking.
    Daniel L. Hawes - 540 347 2430 - HTTP://www.VirginiaLegalDefense.com

    By the way, nothing I say on this website as "user" should be taken as either advertising for attorney services or legal advice, merely personal opinion. Everyone having a question regarding the application of law to the facts of their situation should seek the advice of an attorney competent in the subject matter of the issues presented and licensed to practice in the relevant state.

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    user wrote:
    I thought Skidmark's observations are pretty close to reality. In that he's communicating with us about reality (including the reality of the legal system), he's being a "prophet". A "prophet" isn't the same as "fortune teller", after all, it's more like "soothsayer". It's not his fault the truth isn't to our liking.
    But it is taking shots at the messenger.

    Yata hey
    You will not rise to the occasion; you will fall back on your level of training.” Archilochus, 650 BC

    Old and treacherous will beat young and skilled every time. Yata hey.

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    Campaign Veteran skidmark's Avatar
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    Citizen wrote:
    skidmark wrote:
    SNIP It's just too bad the really good cases always (almost always?) seem to involve folks who are not charter members of the Bible-study group.
    Headline:




    SKIDMARK WANTS PATRIARCHS AND PROPHETS


    BROUGHT UP ON CHARGES




    Darn skippy I do! As a speaker of truth I've been trying to get arrested for years. There are toys and activities that need funding.

    On the other hand, I am still stumped on how one can get the uncomplaining, willingly violated to complain about the violations of their rights. That pretty much leaves those who were not charter members of the Bible study group, no matter what their actual motivation, to complain. You know, folks like Miranda, and Terry, and Cullen, and Davis ( Davis v. Burke, 179 U.S. 399 (1900)), and last but by no way leastMs. Muget S. Martin Martin v. Ziherl, 269 Va. 35, 39, 607 S.E.2d 367, 368-69 (2005).

    stay safe.

    skidmark
    "He'll regret it to his dying day....if ever he lives that long."----The Quiet Man

    Because stupidity isn't a race, and everybody can win.

    "No matter how much contempt you have for the media in all this, you don't have enough"
    ----Allahpundit

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    user wrote:
    I thought Skidmark's observations are pretty close to reality. In that he's communicating with us about reality (including the reality of the legal system), he's being a "prophet". A "prophet" isn't the same as "fortune teller", after all, it's more like "soothsayer". It's not his fault the truth isn't to our liking.
    Good point. But, doesn't that also mean you are a prophet, since you enlighten us on legal realities from time to time? And wouldn't this implySkidmark wants you brought up on charges?

    Oh, man. Be careful, Skidmark. This guy prefers being behindthe defense table.




    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

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    Please don' throw me into that briar patch, Br'er Fox~!
    Daniel L. Hawes - 540 347 2430 - HTTP://www.VirginiaLegalDefense.com

    By the way, nothing I say on this website as "user" should be taken as either advertising for attorney services or legal advice, merely personal opinion. Everyone having a question regarding the application of law to the facts of their situation should seek the advice of an attorney competent in the subject matter of the issues presented and licensed to practice in the relevant state.

  18. #18
    Moderator / Administrator Grapeshot's Avatar
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    Citizen has a briar/burr and it ain't in his saddle.............any more. :P

    Yata hey
    You will not rise to the occasion; you will fall back on your level of training.” Archilochus, 650 BC

    Old and treacherous will beat young and skilled every time. Yata hey.

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