State v. Murillo, 12757

• Citation: 113 N.M. 186,1991 NMCA 133,824 P.2d 326
• Decision Date: 20 November 1991
• Docket Number: No. 12757,12757
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Oscar MURILLO, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 326

824 P.2d 326

113 N.M. 186

STATE of New Mexico, Plaintiff-Appellee, v. Oscar MURILLO, Defendant-Appellant.

No. 12757.

Court of Appeals of New Mexico.

Nov. 20, 1991.

[113 NM 187] Jacquelyn Robins, Chief Public Defender and Bruce Rogoff, Asst. Appellate Defender, Santa Fe, for defendant-appellant.

Tom Udall, Atty. Gen. and Mary Catherine McCulloch, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

OPINION

BLACK, Judge.

Defendant appeals from his conviction for one count of possession of cocaine. He argues the Fourth Amendment should apply to an off-duty investigator for the district attorney's office acting as a private security officer, and that the trial court therefore erred in denying his motion to suppress the cocaine. For the reasons discussed below, we reverse and remand.

FACTS

Mike Gonzales is an investigator for the Third Judicial District Attorney's Office and the owner of a private security company. Shortly after midnight on February 20, 1990, he received a telephone call at his security firm. The unidentified caller informed Gonzales that defendant, Oscar Murillo, was at the Welcome Inn and was carrying a gun. Because his private security firm provided service to the Welcome Inn, Gonzales attempted to contact his other security unit to respond to the call. When he determined the other unit was unavailable, Gonzales went to the Welcome Inn himself. In case defendant actually was carrying a weapon, Gonzales called for the assistance of the local police at some point prior to his initial contact with defendant.

Gonzales testified that he was acquainted with defendant and recognized him upon entering the Welcome Inn. Gonzales then asked defendant to accompany him outside, and defendant did so. Defendant testified that since he knew Gonzales was a security guard, he "respected him." Gonzales told defendant that he had information defendant was armed and requested permission to conduct a protective pat-down. Defendant testified that he had "nothing to hide" so he "opened up." Gonzales testified that he found no evidence of a weapon, but because defendant's shirt was untucked and covered his belt, Gonzales requested defendant to open up his pants. Defendant complied with the request.

At this point, the testimony diverges somewhat. Defendant testified that Gonzales questioned him about some involvement with an "incident at a bowling alley." Gonzales denies this. Defendant states that, after finding no weapon, Gonzales patted his shirt pocket four times and asked, "What's this?" Gonzales testified that when he got to defendant's shirt pocket, he felt some small packets and defendant volunteered, "That's my personal stash." Gonzales further testified that when he requested the contents of defendant's shirt pocket, defendant voluntarily removed a tissue containing three "bindles" and handed them to Gonzales. There is no dispute that the bindles contained cocaine.

The Las Cruces police arrived shortly after this exchange, and Gonzales turned the packets of white powder over to them. At the suppression hearing defendant argued that the Fourth Amendment, U.S. Const. amend. IV, applied to the encounter because Gonzales was a full-time, commissioned law enforcement officer investigating a potential felony offense. Defendant contended that law enforcement officers, held to Fourth Amendment standards in their police work, should not be allowed to violate those standards while working for private security firms. In addition, defendant argued that the Fourth Amendment was violated here because Gonzales did not have articulable facts giving rise to reasonable suspicion to support the stop. State v. Cobbs, 103 N.M. 623, 711 P.2d 900 (Ct.App.1985).

The district judge did not hear argument from the state, but ruled from the bench at the close of defendant's argument. The district court ruled that since Gonzales was acting as a private citizen, the search was not subject to the Fourth Amendment. The motion to suppress was denied. Defendant later entered a plea of guilty, reserving appeal on this issue.

APPLICABILITY OF THE FOURTH AMENDMENT TO "SPECIAL POLICE"

From the record it appears the district court concluded that since Gonzales was working for a private security firm at the time of the search, the Fourth Amendment did not apply. We think a more particularized inquiry is required and remand for findings of fact pursuant to the guidelines set forth in this opinion.

The courts of New Mexico, like other jurisdictions, have accepted the long-standing rule that the protections of the Fourth Amendment¹ do not apply to private individuals acting for their own purposes. State v. Johnston, 108 N.M. 778, 780-81, 779 P.2d 556, 558-59 (Ct.App.) cert. denied, 108 N.M. 771, 779 P.2d 549 (1989); State v. Perea, 95 N.M. 777, 779, 626 P.2d 851, 853 (Ct.App.), cert. denied, 96 N.M. 17, 627 P.2d 412 (1981); see Burdeau v. McDowell, 256 U.S. 465, 475, 41 S.Ct. 574, 576, 65 L.Ed. 1048 (1921). The Fourth Amendment does, however, apply to searches effected by a private party who is acting "as an instrument or agent of the Government." Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 614, 109 S.Ct. 1402, 1411, 103 L.Ed.2d 639 (1989); accord State v. Cox, 100 N.M. 667, 670, 674 P.2d 1127, 1130 (Ct.App.1983); State v. Doe, 93 N.M. 143, 145-46, 597 P.2d 1183, 1185-86 (Ct.App.1979).

Security personnel hired to protect private business premises are performing traditional police functions when they arrest, question, and search for evidence against criminal suspects. Steven Euller, Private Security and the Exclusionary Rule, 15 Harv.C.R.-C.L.L.Rev. 649, 657-58 (1980); Michael A. Braun & David J. Lee, Comment, Private Police Forces: Legal Powers and Limitations, 38 U.Chi.L.Rev. 555, 557 (1971). Like the public police, then, such private security personnel have the potential to invade defendants' constitutional rights in many situations. City of Grand Rapids v. Impens, 414 Mich. 667, 327 N.W.2d 278 (1982) (Kavanagh, J., dissenting); John M. Burkoff, Not So Private Searches and the Constitution, 66 Cornell L.Rev. 627 (1981). The Pennsylvania Supreme Court recognized this danger when it said:

[I]f detectives and private intermeddlers may, without legal responsibility, peer through keyholes, eavesdrop at the table, listen at the transom and over the telephone, and crawl under the bed, then all constitutional guarantees become meaningless aggregation of words, as disconnected as a broken necklace whose beads have scattered on the floor.

Commonwealth v. Murray, 423 Pa. 37, 223 A.2d 102, 110 (1966).

Numerous legal commentators have also acknowledged this danger and recommended that the Fourth Amendment be applied uniformly to all private security police. See, e.g., Burkoff, supra; David L. DeNinno, Note, Private Searches and Seizures: An Application of the Public Function Theory, 48 Geo.Wash.L.Rev. 433 (1980); Stanley R. Steinberg, Comment, Private Police Practices and Problems, 1972 Law & Soc.Ord. 585; Note, Regulation of Private Police, 40 S.Cal.L.Rev. 540 (1967). Since the primary motivation for the adoption of the Fourth Amendment was the fear of arbitrary government action,² however, most courts have refused to apply the Fourth Amendment uniformly to private security guards. See, e.g., United States v. Francoeur, 547 F.2d 891 (5th Cir.), cert. denied, 431 U.S. 918, 97 S.Ct. 2182, 53 L.Ed.2d 228, 431 U.S. 923, 97 S.Ct. 2197, 53 L.Ed.2d 238, 431 U.S. 932, 97 S.Ct. 2640, 53 L.Ed.2d 249 (1977); State v. Buswell, 460 N.W.2d 614 (Minn.1990), cert. denied, --- U.S. ----, 111 S.Ct. 1107, 113 L.Ed.2d 216 (1991); State v. McDaniel, 44 Ohio App.2d 163, 337 N.E.2d 173 (1975); Paul G. Reiter, Annotation, Admissibility, in Criminal Case, of Evidence Obtained by Search by Private Individual, 36 A.L.R.3d 553 (1971 & Supp.1991). Indeed, the rationale behind the exclusionary rule has little applicability to private security guards when they are acting exclusively to foster the interests of their private employers. People v. Scott, 43 Cal.App.3d 723, 117 Cal.Rptr. 925 (1974); State v. Keyser, 117 N.H. 45, 369 A.2d 224 (1977); City of Univ. Heights v. Conley, 20 Ohio Misc. 112, 252 N.E.2d 198 (1969).

In many instances, however, private security police serve a public purpose. When they perform a public function or act as agents of a government investigation, their activities may therefore become state action for constitutional purposes. See, e.g., Griffin v. Maryland, 378 U.S. 130, 135, 84 S.Ct. 1770, 1772, 12 L.Ed.2d 754 (1964) (amusement park security guard deputized as a sheriff was a law enforcement officer); Pratt v. State, 9 Md.App. 220, 263 A.2d 247, 250 (1970) (store detective's commission as a state officer required giving Miranda warnings); cf.Marsh v. Alabama, 326 U.S. 501, 502-03, 66 S.Ct. 276, 276-77, 90 L.Ed. 265 (1946) (deputy sheriff, paid by the company, patrolled a company town and performed services of municipal police).

How, then, should the Fourth Amendment be applied when a private security guard is also a publicly commissioned police officer? Such an individual has an additional motivation for seeking criminal convictions and may be more inclined to transgress the bounds of the Fourth Amendment if given immunity while acting in his "private" capacity. 1 Wayne R. LaFave, Search and Seizure Sec. 1.8(d), at 201 (2d ed.1987); cf. Harvey L. Ziff, Note, Seizures by Private Parties: Exclusion in Criminal Cases, 19 Stan.L.Rev. 608, 614 (1967) (exclusionary rule not an effective deterrent since private guards have no reason to seek convictions).

This issue is arising with increased frequency with the expansion of private security forces and the escalating employment of former and moonlighting public police officers. See generally NMSA 1978, Sec. 61-16-10 (Repl.Pamp.1987) (encouraging "so far as possible regularly employed police officers or deputy sheriffs" be hired as auction inspectors); Traver v. Meshriy, ...