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 courtâ€™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.