State v. Santiago

• Decision Date: 31 August 2009
• Docket Number: No. 30,953.,30,953.
• Citation: 2009 NMSC 045,217 P.3d 89
• Parties: STATE of New Mexico, Plaintiff-Petitioner, v. Luis SANTIAGO, Defendant-Respondent.
• Court: New Mexico Supreme Court

217 P.3d 89

2009 NMSC 045

STATE of New Mexico, Plaintiff-Petitioner, v. Luis SANTIAGO, Defendant-Respondent.

No. 30,953.

Supreme Court of New Mexico.

August 31, 2009.

Gary K. King, Attorney General, James W. Grayson, Assistant Attorney General, Santa Fe, NM, for Petitioner.

Hugh W. Dangler, Chief Public Defender, JK Theodosia Johnson, Assistant Appellate Defender, Santa Fe, NM, for Respondent.

OPINION

BOSSON, Justice.

{1} We consider whether a search performed by private security guards at a privately owned shopping mall is subject to the Fourth Amendment and, if so, whether evidence discovered during the search should be excluded as the fruit of an unreasonable search and seizure. Because we hold that the Fourth Amendment does not apply, we reverse the Court of Appeals and remand for further proceedings.

BACKGROUND

{2} On July 20, 2005, Defendant Luis Santiago was involved in a verbal altercation at the Coronado Mall in Albuquerque. Security guards quickly responded to reports of the fight and tried to stop Defendant as he was leaving the mall. Security guard Ryan Martin testified that he saw Defendant run out from the main entrance doors while being followed by Richard Timmons, another security guard. Defendant stopped when he saw Martin and turned back toward Timmons with an "aggressive stance." In response, Timmons attempted to mace Defendant but missed. Then, Martin successfully maced Defendant and forced him to the ground, where Defendant received a cut to his chin from the impact. The security guards pinned Defendant to the ground and handcuffed him. The trial court found, despite conflicting testimony, that the security guards searched Defendant by reaching inside his pockets and removing several items, including a pill bottle. Defendant testified, and Martin's written statement confirms, that the security guards opened the pill bottle and discovered approximately four grams of cocaine inside.

{3} Shortly after the security guards subdued Defendant, two officers from the Albuquerque Police Department (APD) responded to the scene. When they arrived, Defendant was handcuffed and lying face down on the concrete. Detective Arbogast testified that after collecting the items on the ground that had been removed from Defendant's pockets, he picked Defendant up and escorted him to the back of a waiting police car. As they were walking, Defendant allegedly made statements to Detective Arbogast concerning the pill bottle and its contents. The record conflicts on when the police officers opened the pill bottle. Detective Arbogast stated that he opened the bottle at the police substation; Officer Newbill stated that Detective Arbogast approached him with the bottle while the officers were still at the mall, opened it, and both officers viewed five baggies of white powder inside. The officers transported Defendant to the police substation located at the mall and tested the substance in the pill bottle, confirming that it was cocaine.

{4} Defendant moved to suppress the cocaine and his inculpatory statements. At the suppression hearing on March 10, 2006, the district court heard testimony from the two APD officers and from security guard Martin. Martin testified that he and Timmons were employed by Valor Security, a private security company that provides security services to the Coronado Mall. Over three months later, on June 12, 2006, Defendant testified and contradicted some of the factual evidence offered by the State. The district court granted Defendant's motion and suppressed both the cocaine and Defendant's inculpatory statements as a fruit of the poisonous tree. The Court of Appeals upheld the suppression, holding that the security guards were state actors and subject to the restrictions of the Fourth Amendment.

DISCUSSION

{5} The Fourth Amendment prohibits unreasonable searches and seizures by government actors. Burdeau v. McDowell, 256 U.S. 465, 475, 41 S.Ct. 574, 65 L.Ed. 1048 (1921). To redress and deter violations of the Fourth Amendment, courts apply the exclusionary rule and will suppress evidence obtained as fruit of an unconstitutional search or seizure. Wong Sun v. United States, 371 U.S. 471, 485, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). "Since there must be government instigation or influence to trigger constitutional protections against improper search, seizure and questioning, the rule has generally been held inapplicable to evidence obtained by a person acting solely in a private capacity." Steven Euller, Private Security and the Exclusionary Rule, 15 Harv. C.R.-C.L. L.Rev. 649, 649 (1980) (footnotes omitted); see also Illinois v. Krull, 480 U.S. 340, 347, 107 S.Ct. 1160, 94 L.Ed.2d 364 (1987) ("[T]he `prime purpose' of the exclusionary rule `is to deter future unlawful police conduct and thereby effectuate the guarantee of the Fourth Amendment against unreasonable searches and seizures.'" (Quoting United States v. Calandra, 414 U.S. 338, 347, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974).)); United States v. Smythe, 84 F.3d 1240, 1242 (10th Cir.1996) ("Fourth Amendment protection against unreasonable searches and seizures `is wholly inapplicable to a search or seizure, even an unreasonable one, effected by a private individual.'" (Quoting United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984).)); State v. Murillo, 113 N.M. 186, 188, 824 P.2d 326, 328 (Ct.App.1991) (accepting the long-standing rule that the protections of the Fourth Amendment do not apply to private individuals acting for their own purposes). Accordingly, courts have routinely held that the Fourth Amendment is not implicated and suppression is unwarranted "`when a private person voluntarily turns over property belonging to another and the government's direct or indirect participation is nonexistent or minor.'" Smythe, 84 F.3d at 1243 (quoting Pleasant v. Lovell, 876 F.2d 787, 797 (10th Cir.1989)).

{6} "At the core of the reasoning underlying this refusal to extend application of the exclusionary rule to private searches is the concept of `state action,' the understanding that the Fourth Amendment operates only in the context of the relationship between the citizen and the state." Commonwealth v. Corley, 507 Pa. 540, 491 A.2d 829, 830 (1985) (holding that the exclusionary rule is not available to suppress evidence obtained by a private store security guard during a search incident to a citizen's arrest). However, under certain limited circumstances, our courts have recognized that a search or seizure by a private citizen may be imputed to the government, thereby implicating the Fourth Amendment. See Murillo, 113 N.M. at 189, 824 P.2d at 329. Courts employ the "state action" doctrine to determine "whether there is a sufficiently close nexus between the State and the challenged action of the [private actor] so that the action of the latter may be fairly treated as that of the State itself." Jackson v. Metro. Edison Co., 419 U.S. 345, 351, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974). As the Supreme Court noted, the state action requirement "avoids imposing on the State, its agencies or officials, responsibility for conduct for which they cannot fairly be blamed." Lugar v. Edmondson Oil Co., 457 U.S. 922, 936, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982).

{7} In Lugar, the U.S. Supreme Court set forth a two-part framework to evaluate whether state action is present. 457 U.S. at 939, 102 S.Ct. 2744 (finding state action for the petitioner's 42 U.S.C. § 1983 (2000) civil rights claim where the respondent, pursuant to state statute, used judicial process and sheriff to secure a prejudgement attachment of the petitioner's property). Under the Lugar test, state action is present if the deprivation of a federal right or privilege was caused by (1) "the exercise of a right or privilege having its source in state authority," 457 U.S. at 939, 102 S.Ct. 2744, and (2) "the party charged with the deprivation [is] a person who may fairly be said to be a state actor," id. at 937, 102 S.Ct. 2744. See also LaBalbo v. Hymes, 115 N.M. 314, 319, 850 P.2d 1017, 1022 (Ct.App.1993) (adopting the Lugar test, as set forth in West v. Atkins, 487 U.S. 42, 49-50, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988), to evaluate whether a private entity under state contract who provided services to mentally disabled persons may be a state actor for purposes of a § 1983 civil rights claim). If the state action test is satisfied, the fruits of the search may be suppressed.

{8} In this case, Defendant contends that the mall security guards were state actors, and that their actions were subject to the Fourth Amendment and the exclusionary rule.¹ The Court of Appeals concluded that the security guards acted on behalf of APD by applying three different tests. We evaluate each below.

Murillo/Hernandez Test

{9} Our Court of Appeals has previously addressed the applicability of the Fourth Amendment to private security guards. See Murillo, 113 N.M. 186, 824 P.2d 326. In Murillo, a private security guard, Mike Gonzales, responded to a call at a local motel on suspicion that a suspect was carrying a gun. Id. at 187-88, 824 P.2d at 327-28. Gonzales also worked as an investigator for the district attorney's office, but was off duty at the time he encountered the suspect. Id. at 187, 824 P.2d at 327. Gonzales was acquainted with the suspect, and at some point during their interaction, Gonzales patted the suspect's shirt pocket and discovered "bindles" of cocaine. Id. at 188, 824 P.2d at 328. The suspect moved to suppress the evidence, arguing that the Fourth Amendment "applied to the encounter because Gonzales was a full-time, commissioned law enforcement officer investigating a potential felony offense." Id.

{10} The Court of Appeals stated that generally, "[t]he burden of establishing government involvement in a search by a privately employed individual rests with the defendant." Id. at 190-91, 824 P.2d at 330-31. However, the Court noted that "a commissioned [law...