{ "id": 3784977, "name": "STATE of New Mexico, Plaintiff-Appellant, v. Luis SANTIAGO, Defendant-Appellee", "name_abbreviation": "State v. Santiago", "decision_date": "2008-01-31", "docket_number": "No. 26,859", "first_page": "756", "last_page": "765", "citations": [ { "type": "official", "cite": "143 N.M. 756" }, { "type": "parallel", "cite": "182 P.3d 137" }, { "type": "parallel", "cite": "2008-NMCA-041" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "422 U.S. 590", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9639 ], "weight": 3, "year": 1975, "pin_cites": [ { "page": "603-04" } ], "opinion_index": 0, "case_paths": [ "/us/422/0590-01" ] }, { "cite": "111 N.M. 448", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 715161 ], "weight": 2, "pin_cites": [ { "page": "455" }, { "page": "595" } ], "opinion_index": 0, "case_paths": [ "/nm/111/0448-01" ] }, { "cite": "43 Am.Crim. L.Rev. 89", "category": "journals:journal", "reporter": "Am. Crim. L. Rev.", "year": 2006, "pin_cites": [ { "parenthetical": "expressing concerns about privatized policing for American democracy" } ], "opinion_index": 0 }, { "cite": "63 Colum. L.Rev. 168", "category": "journals:journal", "reporter": "Colum. L. Rev.", "year": 1963, "pin_cites": [ { "page": "174-75" } ], "opinion_index": 0 }, { "cite": "95 J.Crim. L. & Criminology 49", "category": "journals:journal", "reporter": "J. Crim. L. & Criminology", "year": 2004, "pin_cites": [ { "page": "51" } ], "opinion_index": 0 }, { "cite": "501 N.Y.S.2d 265", "category": "reporters:state", "reporter": "N.Y.S.2d", "weight": 2, "pin_cites": [ { "page": "267-68" } ], "opinion_index": 0 }, { "cite": "131 Misc.2d 611", "category": "reporters:state", "reporter": "Misc. 2d", "case_ids": [ 848936 ], "opinion_index": 0, "case_paths": [ "/misc2d/131/0611-01" ] }, { "cite": "594 P.2d 1000", "category": "reporters:state_regional", "reporter": "P.2d", "weight": 3, "year": 1979, "pin_cites": [ { "page": "1006", "parenthetical": "en banc" }, { "page": "1005", "parenthetical": "\"We are mindful, however, of the increasing reliance placed upon private security personnel by local law enforcement authorities for the prevention of crime and enforcement of the criminal law and the increasing threat to privacy rights posed thereby.\"" }, { "page": "1005", "parenthetical": "internal quotation marks and citation omitted" } ], "opinion_index": 0 }, { "cite": "155 Cal.Rptr. 575", "category": "reporters:state", "reporter": "Cal. Rptr.", "weight": 3, "year": 1979, "pin_cites": [ { "parenthetical": "en banc" } ], "opinion_index": 0 }, { "cite": "24 Cal.3d 357", "category": "reporters:state", "reporter": "Cal. 3d", "case_ids": [ 2265659 ], "year": 1979, "pin_cites": [ { "parenthetical": "en banc" } ], "opinion_index": 0, "case_paths": [ "/cal-3d/24/0357-01" ] }, { "cite": "2007-NMCA-082", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 3669588 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 15" } ], "opinion_index": 0, "case_paths": [ "/nm/141/0875-01" ] }, { "cite": "106 N.M. 321", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 707559 ], "weight": 2, "pin_cites": [ { "page": "323" }, { "page": "535" } ], "opinion_index": 0, "case_paths": [ "/nm/106/0321-01" ] }, { "cite": "64 N.M. 300", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5346230 ], "weight": 2, "year": 1958, "pin_cites": [ { "page": "304", "parenthetical": "stating that \" 'any person' may, without a warrant, arrest a felon\"" }, { "page": "76", "parenthetical": "stating that \" 'any person' may, without a warrant, arrest a felon\"" } ], "opinion_index": 0, "case_paths": [ "/nm/64/0300-01" ] }, { "cite": "435 N.E.2d 1036", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 8, "year": 1982, "pin_cites": [ { "page": "1041-42" }, { "page": "1041" }, { "page": "1039-40" }, { "page": "1041" }, { "page": "1042" } ], "opinion_index": 0 }, { "cite": "386 Mass. 329", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 906572 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/mass/386/0329-01" ] }, { "cite": "489 U.S. 602", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12032926 ], "weight": 3, "year": 1989, "pin_cites": [ { "page": "614" } ], "opinion_index": 0, "case_paths": [ "/us/489/0602-01" ] }, { "cite": "273 U.S. 28", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6136759 ], "weight": 3, "year": 1927, "pin_cites": [ { "page": "33" } ], "opinion_index": 0, "case_paths": [ "/us/273/0028-01" ] }, { "cite": "393 N.E.2d 443", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1979, "pin_cites": [ { "page": "445" } ], "opinion_index": 0 }, { "cite": "419 N.Y.S.2d 447", "category": "reporters:state", "reporter": "N.Y.S.2d", "year": 1979, "opinion_index": 0 }, { "cite": "47 N.Y.2d 528", "category": "reporters:state", "reporter": "N.Y.2d", "case_ids": [ 4371349 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/ny-2d/47/0528-01" ] }, { "cite": "111 N.M. 234", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 715244 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "237" }, { "page": "1056" } ], "opinion_index": 0, "case_paths": [ "/nm/111/0234-01" ] }, { "cite": "122 N.M. 84", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 322320 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/122/0084-01" ] }, { "cite": "1996-NMCA-059", "category": "reporters:neutral", "reporter": "NMCA", "pin_cites": [ { "page": "\u00b6 17" } ], "opinion_index": 0 }, { "cite": "124 N.M. 227", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 17894 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/124/0227-01" ] }, { "cite": "1997-NMCA-106", "category": "reporters:neutral", "reporter": "NMCA", "pin_cites": [ { "page": "\u00b6 24" } ], "opinion_index": 0 }, { "cite": "392 U.S. 1", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6167798 ], "weight": 3, "year": 1968, "pin_cites": [ { "page": "24" } ], "opinion_index": 0, "case_paths": [ "/us/392/0001-01" ] }, { "cite": "2000-NMSC-018", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 1217162 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 10" } ], "opinion_index": 0, "case_paths": [ "/nm/129/0119-01" ] }, { "cite": "1999-NMCA-115", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 106503 ], "weight": 7, "pin_cites": [ { "page": "\u00b6 14" }, { "page": "\u00b6 14" } ], "opinion_index": 0, "case_paths": [ "/nm/128/0056-01" ] }, { "cite": "1998-NMCA-177", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 827437 ], "weight": 9, "pin_cites": [ { "page": "\u00b6 5" }, { "page": "\u00b6 6" }, { "page": "\u00b6 9" } ], "opinion_index": 0, "case_paths": [ "/nm/126/0426-01" ] }, { "cite": "113 N.M. 186", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 723186 ], "weight": 22, "pin_cites": [ { "page": "188" }, { "page": "328", "parenthetical": "\"The courts of New Mexico, like other jurisdictions, have accepted the long-standing rule that the protections of the Fourth Amendment do not apply to private individuals acting for their own purposes.\"" }, { "page": "189" }, { "page": "329" }, { "page": "327" }, { "page": "191" }, { "page": "326" }, { "page": "191" }, { "page": "331" }, { "page": "189" }, { "page": "329" }, { "page": "190" }, { "page": "330", "parenthetical": "\"The general rule appears to be that whether a 'private' person is acting as an agent of the government is determined as a question of fact in light of all the circumstances.\"" }, { "page": "189" }, { "page": "329" }, { "page": "190" }, { "page": "330" }, { "page": "189" }, { "page": "329" } ], "opinion_index": 0, "case_paths": [ "/nm/113/0186-01" ] }, { "cite": "1999-NMSC-039", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 106537 ], "weight": 3, "opinion_index": 1, "case_paths": [ "/nm/128/0084-01" ] }, { "cite": "1997-NMCA-120", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 18473 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 3" } ], "opinion_index": 1, "case_paths": [ "/nm/124/0296-01" ] }, { "cite": "116 N.M. 562", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 727703 ], "weight": 2, "pin_cites": [ { "page": "565" }, { "page": "1209" } ], "opinion_index": 1, "case_paths": [ "/nm/116/0562-01" ] } ], "analysis": { "cardinality": 1401, "char_count": 35740, "ocr_confidence": 0.687, "pagerank": { "raw": 4.357577154540725e-08, "percentile": 0.27378912824647306 }, "sha256": "bf2a9f0cae0248111c166b85cf11fcbb142b4b4ff82a79efa6725ceb2ecb3230", "simhash": "1:87739d57c9e38e8a", "word_count": 5832 }, "last_updated": "2023-07-14T16:34:50.796486+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "I CONCUR: RODERICK T. KENNEDY, Judge.", "JAMES J. WECHSLER, Judge (specially concurring)." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellant, v. Luis SANTIAGO, Defendant-Appellee." ], "opinions": [ { "text": "OPINION\nVIGIL, Judge.\n{1} The State appeals the district court\u2019s order granting Defendant\u2019s motion to suppress. Defendant was searched outside of a shopping mall by private mall security guards after he was maced, thrown to the ground, and handcuffed, because he had a verbal confrontation with a peer within the mall. As a result of the search, the mall security guards discovered a pill bottle in Defendant\u2019s pants pocket containing cocaine. The district court concluded that the search and seizure conducted by the mall security guards is governed by the Fourth Amendment. Further, the district court concluded the search and seizure to be unreasonable under Fourth Amendment standards, and it ordered that the physical evidence be suppressed, as well as all other evidence discovered as a result of the search and seizure under the fruit of the poisonous tree doctrine. We affirm.\nFACTS AND PROCEDURAL HISTORY\n{2} Defendant testified he was at the Coronado mall when his girlfriend\u2019s ex-boyfriend came up behind him, and grabbed his visor. They cussed and yelled at each other, but there was no actual fight. Defendant grabbed his visor back and started walking up the escalator at a fast pace to leave the mall. Half-way up the escalator, Defendant heard a mall security guard yell, \u201cHey.\u201d Since his car was right outside, and he was already leaving the mall, he started a \u201clight jog\u201d towards his car. Two mall security guards were waiting for Defendant outside, and they told him to get on the ground. When he heard them tell him to get on the ground, Defendant held his arms straight out, asking them why, and testified, \u201cI never took an aggressive step or anything toward them.\u201d However, the mall security guards threw him down face-first onto the pavement, cutting his chin. Defendant testified, \u201cI was facing down. I was facing down on my stomach. I was on my stomach. My head was turned to the left, and my hands were behind me, and there was one [mall] security guard-one [mall] security guard was holding my hands; the other [mall] security guard had his knee in my neck____And the other one was searching me.\u201d Defendant further testified that while he was being searched, \u201cI was yelling at him to stop because, I mean, I thought it wasn\u2019t legal to search anybody, you know, without any consent, you know. So he started searching me. I was yelling at him he couldn\u2019t search me. He was telling me to shut up, and he took everything out of my pockets.\u201d When he was asked if this was a pat-down search, Defendant replied, \u201cI didn\u2019t feel no patting down. I felt his hands go straight into my pockets.\u201d Defendant then heard the mall security guard say, \u201cLook what we have here. Call APD [Albuquerque Police Department].\u201d\n{3} Security Guard Ryan Martin testified he works for Valor Security, which provides security for the Coronado Mall. The mall security guards wear a uniform, \u201cwhich kind of looks like Albuquerque Police Department\u2019s uniform with the exception of the badge and the Smokey Bear hats[.]\u201d Security Guard Martin was in the parking lot in one of the marked mobile patrol vehicles used by the security guards when he heard a radio dispatch, and he went to the south patio main entrance area of the mall. He saw Defendant running out of the entrance and Security Guard Richard Timmons following him while giving Defendant verbal commands to stop and get down to the ground. Defendant stopped and turned around toward Security Guard Timmons. Security Guard Martin interpreted his action as taking \u201can aggressive stance towards him.\u201d Security Guard Martin also commanded Defendant to get to the ground, but he did not comply, and Security Guard Timmons sprayed mace towards Defendant\u2019s face. Defendant then turned back towards Security Guard Martin to run from the mace and Security Guard Martin grabbed his right arm to take Defendant to the ground. As they struggled, Security Guard Martin sprayed mace into Defendant\u2019s face. At this time Valor Security Sergeant George Rodriguez showed up on the scene and put hand restraints on Defendant. When asked whether Defendant was arrested Security Guard Martin answered, \u201cWe are to advise anybody that we place in hand restraints that they are under citizen\u2019s arrest and we did so.\u201d In his report Security Guard Martin noted that Defendant was told he was under citizen\u2019s arrest \u201cfor breach of the peace.\u201d When asked what his understanding of a citizen\u2019s arrest is, Security Guard Martin answered, \u201cIt\u2019s a citizen detaining an individual, private citizen detaining an individual for a crime until APD arrives.\u201d The Valor Security mall dispatcher is just inside the glass doors where the struggle took place and Security Guard Martin said the Valor dispatcher \u201ccalled via our radio to the Albuquerque Police Substation and contacted Officer Newbill on the radio and advised that we needed back up[.]\u201d The Valor security guards use two-way walkietalkie radios at the mall, and the APD has one of these radios in its substation. After the incident outside the mall door, Security Guard Martin followed the police officers to the APD substation to exchange information with the APD officers to complete his report.\n{4} The Coronado Mall furnishes the APD with a police substation. Officer Keith New-bill of the APD testified that he had been working with mall security for about two years and that \u201cI am the Coronado Mall officer.\u201d He was working at Coronado Mall and overheard on the Coronado Mall security radio he had that there was a fight on the lower level of the mall. He was then asked to assist, \u201cbecause the fight had moved out to the south patio and they were struggling with an individual.\u201d When he first arrived at the scene, he took Defendant to his police ear, set Defendant inside of it, and then went back to find out what was happening. When he placed Defendant in his police car, Defendant was not free to leave, \u201cbecause I needed to identify him and determine whether or not I was \u2014 mall security was going to want a criminal trespass notification.\u201d This coincided with Officer Newbill\u2019s understanding of an arrest. \u201c[M]ost generally what happens in these type of scenarios is they\u2019re issued criminal trespass notifications saying they can\u2019t return, and I send them on their way. It requires a short little report, and it\u2019s a quick process.\u201d However, in this case, Detective Bruce Arbogast of the APD came to the car holding a pill bottle he indicated he had picked up along with other property that belonged to Defendant, opened it up, and said, \u201cLook at this.\u201d Officer Newbill looked inside and saw five little baggies with white powder, so they decided to go the APD substation and field test the substance.\n{5} Detective Arbogast testified he was at the Coronado Mall when Officer Newbill received a radio call from Coronado security requesting the APD to respond to a fight. Each driving their own police unit, he and Officer Newbill, \u201cdrove over there as fast as we could to help assist in the fight and break it up and sort out the situation.\u201d Upon arriving, he saw Defendant on the concrete face down and handcuffed with mall security standing around him. Detective Arbogast testified, \u201cIt happened within a matter of seconds upon our arrival and the time they had him down on the ground.\u201d A cell phone and pill bottle were laying next to his body. Detective Arbogast said, \u201cI picked [Defendant] up with mall security and we transported him over to Officer Newbill\u2019s car. At the same time I picked up what was his property \u2014 or he stated was his property off the ground and took it into my possession.\u201d While he and the mall security guard were taking Defendant to the police car, Defendant said he found the bottle outside the mall and he was going to give the contents to some friends he was meeting later at the mall.. Defendant was then transported to the APD mall substation. At the APD mall substation the contents of the bottle were field tested, and they were positive for cocaine.\n{6} Defendant filed a motion to suppress the cocaine and statements he made regarding the cocaine after it was seized. After an evidentiary hearing, the district court entered findings of facts and conclusions of law and granted the motion to suppress. The district court applied the factors set forth in State v. Murillo, 113 N.M. 186, 824 P.2d 326 (Ct.App.1991) to determine the applicability of the Fourth Amendment, and concluded that because the search by the security guards went beyond the scope of protecting their employer\u2019s property rights, it was unreasonable under the Fourth Amendment. Defendant\u2019s motion to suppress was therefore granted, and under the fruit of the poisonous tree doctrine, Defendant\u2019s inculpatory statements were also suppressed. The State appeals, arguing that the security guards were not state actors and therefore not subject to Fourth Amendment restrictions.\nSTANDARD OF REVIEW\n{7} \u201cIn reviewing the denial of a motion to suppress, the appropriate standard is whether the law was correctly applied to the facts, viewing them in a light most favorable to the court\u2019s ruling.\u201d State v. Ingram, 1998-NMCA-177, \u00b6 5, 126 N.M. 426, 970 P.2d 1151. We view the facts as determined by the district court in the light most favorable to its ruling, In re Josue T., 1999-NMCA-115, \u00b6 14, 128 N.M. 56, 989 P.2d 431, we indulge all reasonable inferences in support of the district court\u2019s ruling, and we disregard all evidence and inferences to the contrary. State v. Jason L., 2000-NMSC-018, \u00b6 10, 129 N.M. 119, 2 P.3d 856. \u201cDetermining the reasonableness of a search, however, is a matter of law.\u201d In re Josue T., 1999-NMCA-115, \u00b6 14, 128 N.M. 56, 989 P.2d 431. We therefore apply a de novo review to the district court\u2019s determination that the search in this case was unreasonable. Id.\nANALYSIS\n{8} The Fourth Amendment to the United States Constitution provides in pertinent part: \u201cThe right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated]!]\u201d U.S. Const, amend. IV. Had the search of Defendant\u2019s pants pockets and the seizure of their contents been undertaken by the APD officers, the results would not be admissible in a criminal trial under established precedent, and the State does not argue otherwise. See Ingram, 1998-NMCA-177, \u00b6 6, 126 N.M. 426, 970 P.2d 1151 (\u201cIt is well-established doctrine that a police officer, in an encounter with a citizen, may conduct a protective search, known as a Terry [v. Ohio, 392 U.S. 1, 24, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ] search, to ensure that the individual is not armed.\u201d); State v. Eskridge, 1997-NMCA-106, \u00b6 24, 124 N.M. 227, 947 P.2d 502 (stating that a police officer concerned about his personal safety during an investigatory stop may check for weapons when he reasonably believes the individual may be armed and dangerous, but the officer is only permitted to pat down the outer clothing of the individual to feel for weapons); State v. Flores, 1996-NMCA-059, \u00b6 17, 122 N.M. 84, 920 P.2d 1038 (stating that such a protective search is allowed for the limited purpose of protecting the investigating officer and absent probable cause, such a search for weapons may not be expanded into a search for evidence of a crime). In the case before us, the district court found the mall security guard did not perform a pat down search for weapons; he reached into Defendant\u2019s pockets and removed items, none of which could have been mistaken as weapons.\n{9} The issue in this case is whether the fruits of the search and seizure, undertaken by mall security guards, rather than police, are admissible in a criminal prosecution of Defendant. The issue arises because of the doctrine that the Fourth Amendment does not apply to private individuals who act solely for their own purposes. See Murillo, 113 N.M. at 188, 824 P.2d at 328 (\u201cThe courts of New Mexico, like other jurisdictions, have accepted the long-standing rule that the protections of the Fourth Amendment do not apply to private individuals acting for their own purposes.\u201d). However, for the Fourth Amendment to not apply, the State may not receive the evidence as the result of any instigation by state officials or their participation or involvement in the illegal search. See State v. Ybarra, 111 N.M. 234, 237, 804 P.2d 1053, 1056 (1990) (\u201cThe government, of course, cannot avoid constitutional restrictions by using a private individual as its agent, nor can it claim that only a private act is involved when government officers, subject to constitutional limitations, have participated in the act. Under such circumstances the constitutional restrictions on governmental activity cannot be said to be inapplicable.\u201d (quoting People v. Jones, 47 N.Y.2d 528, 419 N.Y.S.2d 447, 393 N.E.2d 443, 445 (1979))); see also Byars v. United States, 273 U.S. 28, 33, 47 S.Ct. 248, 71 L.Ed. 520 (1927) (\u201cWe do not question the right of the federal government to avail itself of evidence improperly seized by state officers operating entirely upon their own account. But the rule is otherwise when the federal government itself, through its agents acting as such, participates in the wrongful search and seizure.\u201d). Thus, we have held that the Fourth Amendment applies to \u201csearches effected by a private party who is acting \u2018as an instrument or agent of the Government.\u2019\u201d Murillo, 113 N.M. at 189, 824 P.2d at 329 (quoting Skinner v. Ry. Labor Executives\u2019 Ass\u2019n, 489 U.S. 602, 614, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989)).\n{10} We therefore determine whether the mall security guards in this case were acting \u201cas an instrument or agent of the Government\u201d when they seized and searched Defendant. This requires an analysis to determine whether, and to what extent, police officers of the State were involved with, or connected to, the conduct of the mall security guards. If that involvement or connection is sufficient to conclude that the State was involved, then the conduct will be deemed \u201cstate action\u201d with the consequence that its validity will be scrutinized by Fourth Amendment standards.\nA. State Action Under the Murillo Test\n{11} Murillo involved a search conducted by an off-duty investigator employed by the district attorney\u2019s office while he was on duty as a private security guard. Murillo, Id. at 187, 824 P.2d at 327. We recognized that a commissioned police officer may have incentives to obtain convictions even while he is acting for a private employer. Id. at 191, 824 P.2d at 326. Under these circumstances, we concluded that the burden is on the State to show that the officer was acting in a truly private capacity, and to make this determination, we considered the four factors enunciated by the Supreme Judicial Court of Massachusetts in Commonwealth v. Leone, 386 Mass. 329, 435 N.E.2d 1036, 1041-42 (1982). Murillo, 113 N.M. at 191, 824 P.2d at 331. Those factors are: \u201c(1) whether the guard acted under the control of his private employer; (2) whether the guard\u2019s actions clearly related to his private employer\u2019s private purposes; (3) whether the search was conducted as a legitimate means of protecting the employer\u2019s private property; and (4) whether the methods and manner of the search were reasonable and no more intrusive than necessary.\u201d Id. In this case, however, there is no indication in the record that any of the Coronado Mall security guards were off-duty police officers. In fact, Security Guard Martin testified he is not a police officer, and he never has been one. Thus, while the factors to be considered by Murillo are helpful, they are not dispositive in answering the question posed in this case. Nevertheless, we do consider them for guidance in resolving the ultimate issue before us.\n{12} The first Leone factor is whether the guard acts under the control of his private employer. Leone, 435 N.E.2d at 1041. If the investigation exceeds the guard\u2019s private duties or authorization, he may be considered a government actor. Id. The record in this case does not reveal what specific duties the Coronado Mall security guards were authorized to perform. However, most courts reason that \u201cthe primary function and concern of privately employed security officers is protection of their employers\u2019 property, rather than conviction of wrongdoers.\u201d Id. at 1039-40. Defendant did not threaten to damage any Coronado Mall property; Defendant did not damage any Coronado Mall property; Defendant did not shoplift property from any Coronado Mall store; and Defendant did not otherwise pose a threat to any Coronado Mall property or patrons. The mall security guards exceeded their private duties by chasing Defendant, throwing him to the ground, handcuffing him, and searching him. When they engaged in these activities the mall security guards were not doing anything to safeguard mall property or patrons.\n{13} Moreover, the State\u2019s assertion that the mall security guards executed a valid citizen\u2019s arrest does not withstand scrutiny. Historically, a citizen\u2019s power to arrest has been limited to felonies. See State v. Barreras, 64 N.M. 300, 304, 328 P.2d 74, 76 (1958) (stating that \u201c \u2018any person\u2019 may, without a warrant, arrest a felon\u201d). There is no claim that Defendant committed a felony that justified the mall security guards in ordering, then throwing Defendant to the ground, handcuffing him, and searching him. We have also noted that at common law a private person could arrest for a breach of the peace committed in his presence. Downs v. Garay, 106 N.M. 321, 323, 742 P.2d 533, 535 (Ct.App.1987). Here, Defendant did not commit a breach of the peace in the presence of the mall security guards. Even if Defendant had committed a breach of the peace within their presence, it is questionable whether the mall security guards could have made a valid citizen\u2019s arrest. See State v. Emmons, 2007-NMCA-082, \u00b6 15, 141 N.M. 875, 161 P.3d 920 (\u201c[T]he Supreme Court [has] specifically declined to favor eitizens\u2019s arrest for breaches of the peace, stemming from their concern that such an expansion of citizen power might likely lead to more breaches of the peace and encourage vigilantism.\u201d).\n{14} Secondly, we consider whether the actions of the mall security guards clearly related to the private employer\u2019s private purposes. Leone, 435 N.E.2d at 1041. A private purpose to be served by an arrest and search might be to detain a shoplifter or to recover merchandise stolen from a store within the Coronado Mall. However, \u201c[a]n investigation that goes beyond the employer\u2019s needs cannot be justified as an incident of the guard\u2019s private function.\u201d Id. The conduct of the mall security guards in this ease clearly exceeded any private legitimate needs of the Coronado Mall. No legitimate private purpose was being served by chasing Defendant, throwing him to the ground, handcuffing him, and searching him.\n{15} Third, \u201cthe investigation must be a legitimate means of protecting the employer\u2019s property, and so must be reasonable in light of the circumstances surrounding it.\u201d Id. at 1042. In this ease, Defendant posed no threat to the Coronado Mall property, Defendant had not damaged or destroyed any mall property, and the mall security guards did not suspect him of shoplifting.\n{16} Finally, we consider whether the method and manner of the search performed by the mall security guards was reasonable and no more intrusive than necessary. Id. There was no justification for macing and throwing Defendant to the ground simply because he did not obey their order to get to the ground. Whether they had authority to issue such a command under the circumstances is itself questionable. Furthermore, the search performed by the mall security guards was clearly more intrusive than necessary. Security Guard Martin testified that it is customary for the mall security guards to conduct a pat down for weapons when there is a confrontation or if a felony has been committed. He also testified: \u201cThe only time we\u2019re allowed to move something off someone\u2019s person is when it poses a threat, like a knife, a gun, something of that nature.\u201d The search of Defendant\u2019s pockets cannot be characterized as a pat down for weapons, because the pill bottle was clearly not a weapon, and there was no legitimate reason for opening the pill bottle. See People v. Zelinski, 24 Cal.3d 357, 155 Cal.Rptr. 575, 594 P.2d 1000, 1006 (1979) (en banc) (concluding that while waiting for the police to arrive, private store security guards who removed a stolen blouse, together with a pill vial from the defendant\u2019s purse and opened the pill vial, thereby discovering a fine, powdery substance, later determined to be heroin, \u201cwent beyond their employer\u2019s private interests\u201d).\n{17} The mall security guards exceeded their private duties or authorization. They were not protecting their employer\u2019s property, nor did they execute a lawful citizen\u2019s arrest. If the mall security guards had been off-duty police officers, they would be deemed to be acting as an instrument or agent of the Government, and their conduct would be subject to the Fourth Amendment under Murillo.\nB. State Action Under the Public Function and Government Agent Tests\n{18} The conduct of private security guards who are not off-duty police officers may also be measured under Fourth Amendment constitutional standards in appropriate cases. \u201cWhen they perform a public function or act as agents of a government investigation, their activities may therefore become state action for constitutional purposes.\u201d Murillo, 113 N.M. at 189, 824 P.2d at 329. Whether the private officers are performing a public function or are acting as agents of the government is determined as a question of fact. See id. at 190, 824 P.2d at 330 (\u201cThe general rule appears to be that whether a \u2018private\u2019 person is acting as an agent of the government is determined as a question of fact in light of all the circumstances.\u201d).\n1. The Mall Security Guards Exercised Public, Police Functions\n{19} We conclude the evidence supports a finding that the mall security guards were performing public, police functions in this case. It is evident that \u201c[sjecurity personnel hired to protect private business premises are performing traditional police functions when they arrest, question, and search for evidence against criminal suspects.\u201d Murillo, 113 N.M. at 189, 824 P.2d at 329.\n{20} We have recognized, as have other courts, that the use of private security forces is expanding in the United States. Id. at 190, 824 P.2d at 330. See Zelinski, 155 Cal.Rptr. 575, 594 P.2d at 1005 (\u201cWe are mindful, however, of the increasing reliance placed upon private security personnel by local law enforcement authorities for the prevention of crime and enforcement of the criminal law and the increasing threat to privacy rights posed thereby.\u201d); People v. Elliott, 131 Misc.2d 611, 501 N.Y.S.2d 265, 267-68 (N.Y.Sup.Ct.1986) (noting the increasing number of businesses, governmental agencies, neighborhoods, and individuals that are giving private security entities a new role that spills over into public law enforcement areas). The Zelinski court notes from a report prepared by the Private Security Advisory Council to the United States Department of Justice, that \u201cthe private security sector has become the largest single group in the country engaged in the prevention of crime.\u201d Zelinski, 155 Cal.Rptr. 575, 594 P.2d at 1005 (internal quotation marks and citation omitted). One study of private policing has recently concluded that today, \u201cprivate police participate in much of the policing work that their public counterparts do.\u201d Elizabeth E. Joh, The Paradox of Private Policing, 95 J.Crim. L. & Criminology 49, 51 (2004).\n{21} It is clear that, like the public police, private security guards have the potential to violate citizens\u2019 constitutional rights. Murillo, 113 N.M. at 189, 824 P.2d at 329. It is also evident that a serious danger to constitutional liberties would result if private security guards were allowed to perform these traditional police functions such as arresting, questioning, and searching for evidence, without applying any constitutional protections. See 1 Wayne R. LaFave, Search and Seizure \u00a7 1.8(a), at 260 & n. 29 (4th ed. 2004) (\u201c[T]he grave danger exists that the general admissibility of such evidence may create an atmosphere encouraging government officials to act in clandestine concert with private persons; while concerted activity would undoubtedly taint such evidence and require its exclusion in a criminal action, the problems of proof are obvious.\u201d (quoting Note, 63 Colum. L.Rev. 168,174-75 (1963))); David Alan Sklansky, Private Police and Democracy, 43 Am.Crim. L.Rev. 89 (2006) (expressing concerns about privatized policing for American democracy).\n{22} These concerns are very real in this case. The website for Coronado Mall (http:// www.ggp.com/Content/Data/mallfacts/ Coronado'enter_mallfact.pdf) describes it as New Mexico\u2019s largest enclosed bi-level mall with over 150 retail stores and 5 anchors within 1,153,954 square feet. The mall has 5,489 parking spaces, employs 19,443 people, and more than 12 million people visit the mall each year. Thus, the mall security guards in this case are responsible for a very large, public area in which millions of people come and go each year. The magnitude of the responsibilities performed by the mall security guards in providing security for the Coronado Mall easily equals or exceeds that of sworn police officers in many towns, cities, and counties in New Mexico.\n{23} We therefore align New Mexico with other courts that have expressed realistic concerns about safeguarding our constitutional rights where private police forces are used. To determine whether private security guards are performing public, police functions, we adopt the following test enunciated by Elliott, 501 N.Y.S.2d at 269:\nThese few concerned courts have fashioned a realistic \u2018public function or acting in the public interest test\u2019 which maintains that where organized and structured private security entities or agents assert the power of the state to investigate or make an arrest, or detain persons for subsequent transfer of custody to the state, or subsequent state law enforcement and the state has acquiesced or allowed such use of public power, such private organized action, in contemplation of state involvement, is sufficient to enable a court to apply constitutional restraints!}]\n{24} The mall security guards are structured and organized. They provide security services for businesses and patrons within Coronado Mall. Maintaining public order and keeping the public peace are traditional police functions. The mall security guards wear uniforms which look like APD uniforms; they are called \u201cofficers\u201d; and they have rank designations such as sergeant that are similar to those used by a police force. In this particular case, the mall security guards responded to the initial (but erroneous) report of a fight, without APD assistance. The mall security guards then called the APD for \u201cbackup,\u201d and arrested Defendant, calling the arrest a \u201ccitizen\u2019s arrest\u201d for disturbing the peace. They kept Defendant under arrest until APD arrived, pursuant to their policy. Simultaneous with the arrest, a mall security guard forcibly searched Defendant, on his own, and upon seizing the pill bottle from Defendant and opening it, said, \u201cLook what we have here. Call APD.\u201d We therefore conclude the totality of the circumstances support a finding that the mall security guards were performing public, police functions.\n2. The Mall Security Guards Acted as Instruments or Agents of the Police\n{25} We also conclude that the evidence supports the conclusion that the mall security guards were acting as instruments or agents of the police. The mall security guards employed by Valor Security and the APD work in conjunction with each other in providing security for the Coronado Mall. The APD is provided with a substation in the mall, and the APD assigns police officers to work on the mall premises to provide security. The police officers working at the mall have radios used by the private security guards employed by Valor Security, which enables both forces to communicate directly with each other. In this particular ease, Officer Newbill heard the initial report of a disturbance in the mall, but the Valor Security guards apparently intended to handle the matter on their own. When they wanted \u201cbackup\u201d the Valor Security dispatch requested APD assistance over its own radio, which two APD officers heard, and they responded in their police units immediately.\n{26} Defendant was arrested by the mall security guards with the intent of detaining Defendant until the APD officers arrived, and when the APD officers did arrive, they continued Defendant\u2019s arrest by putting him in the APD police unit while still in the handcuffs placed on Defendant by the mall security guards. Once they took custody of Defendant, the intent of the APD officers was to determine if the mall security guards wanted a criminal trespass notification issued to Defendant. If that was their desire, the APD officers would have issued Defendant the notification, telling him he could not return to the mall.\n{27} In the meantime, an APD officer picked up the property that the mall security guards had taken from Defendant, and took it into their own possession. An APD officer then opened the pill bottle seized from Defendant, and decided to field test its contents. This action effectively ratified its seizure by the mall security guards. The mall security guard went to the APD substation in the mall to exchange information with the APD officers so he could complete his report.\n{28} The evidence in this case demonstrates that the mall security guards and APD were acting cooperatively in a coordinated, concerted undertaking. The conduct of the mall security guards is sufficiently interconnected with the conduct of APD to conclude that they were acting as a team and as an instrument or agent of each other to an extent that makes it appropriate to measure the conduct of the mall security guards by constitutional standards.\nC. Suppression of the Evidence and Its Fruits\n{29} We have determined that the search of Defendant must be measured by Fourth Amendment standards for three different reasons, each of which alone is sufficient. Since the search and seizure did not comply with the Fourth Amendment, all evidence discovered as a result of the search and seizure is not admissible in a criminal trial against Defendant. Ingram, 1998-NMCA-177, \u00b6 9, 126 N.M. 426, 970 P.2d 1151 (\u201cEvidence which is obtained as a result of an unconstitutional search or seizure may be suppressed under the \u2018exclusionary rule.\u2019 \u201d).\n{30} While the cocaine itself is clearly the fruit of the unlawful search, the State argues that Defendant\u2019s statements should not have been suppressed because there was a sufficient break in the causal chain between the search and Defendant\u2019s statements. \u201cEvidence which is obtained by exploitation of a \u2018primary illegality\u2019 will be the fruit of that search and will be suppressed, unless an \u2018intervening independent act of a free will\u2019 can purge the taint of the illegally seized evidence.\u201d Id. \u00b6 10. In determining whether the chain was broken, \u201c[t]he temporal proximity of the arrest and the confession, the presence of intervening circumstances, ... and, particularly, the purpose and flagrancy of the official misconduct are all relevant.\u201d State v. Bedolla, 111 N.M. 448, 455, 806 P.2d 588, 595 (Ct.App.1991) (quoting Brown v. Illinois, 422 U.S. 590, 603-04, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975)).\n{31} The State argues that the causal chain was broken because the Defendant voluntarily made the statements to the APD officers, the officers were not present during the search, and the APD\u2019s discovery and testing of the drugs were in response to Defendant\u2019s statements rather than the search of the mall security guards. We disagree. The mall security guards and the APD officers were acting as a team. The APD officers had a radio monitoring the security guard\u2019s frequency. As a result, they knew about the incident and request for immediate back up. In addition, because the APD substation is located in the mall, the police instantly responded. An officer testified that they \u201cdrove as fast as [they] could.\u201d Furthermore, immediately upon arriving at the scene, an APD officer took Defendant to the police car. Based on this evidence, it is clear that the time between the search and the statements was negligible. In addition, when the mall security guard took the pill bottle from Defendant and opened it, he said, \u201cLook what we have here. Call APD.\u201d APD arrived immediately. The evidence supports a finding that Defendant knew that the APD was called because of the drugs. But for the illegal search by the mall security guards, Defendant would likely not have made any statements to the APD officers.\n{32} Therefore, we conclude the evidence supports a finding that Defendant\u2019s statements were obtained by an exploitation of the illegal search, that the causal chain between the search and his statements was not broken, and that Defendant\u2019s statements were also properly suppressed.\nCONCLUSION\n{33} The order of the district court is affirmed.\n{34} IT IS SO ORDERED.\nI CONCUR: RODERICK T. KENNEDY, Judge.\nJAMES J. WECHSLER, Judge (specially concurring).", "type": "majority", "author": "VIGIL, Judge." }, { "text": "WECHSLER, Judge\n(specially concurring).\n{35} I concur with the majority in affirming the district court\u2019s order suppressing the evidence obtained by the mall security guards. I do not, however, concur in much of the majority\u2019s analysis in reaching the conclusion that the security guards\u2019 activity was subject to the Fourth Amendment.\n{36} In analyzing the issue of whether the activity of the security guards was subject to the Fourth Amendment, the majority properly determines that the security guards were acting as instruments or agents of the government when seizing and searching Defendant. In reaching that conclusion, the majority relies on three independent grounds: that the security guards exceeded their private duties or authorization using the test applied in Murillo; that the security guards were performing public, police functions under the totality of circumstances; and that the security guards acted as instruments or agents of the APD officers.\n{37} I would simply rely on the third ground because it is supported by our analysis in prior opinions and does not require an unnecessary extension of our case law. We have recognized in both Murillo and State v. Hernandez, 116 N.M. 562, 565, 865 P.2d 1206, 1209 (Ct.App.1993), a case, in contrast to Murillo, involving a private security guard who was not also a commissioned law enforcement officer, that a private security guard\u2019s actions may constitute governmental action if the guard is \u201cacting as a government agent or instrument.\u201d The majority\u2019s third ground correctly decides this case on this basis. We need say nothing more. See Gabaldon v. Erisa Mortgage Co., 1997-NMCA-120, \u00b6 3, 124 N.M. 296, 949 P.2d 1193 (stating this Court\u2019s \u201cgeneral desire to decide cases on narrow rather than broad grounds\u201d), rev\u2019d in part on other grounds, 1999-NMSC-039, 128 N.M. 84, 990 P.2d 197.", "type": "concurrence", "author": "WECHSLER, Judge" } ], "attorneys": [ "Gary K. King, Attorney General, Santa Fe, NM, James W. Grayson, Assistant Attorney General, Albuquerque, NM, for Appellant.", "John Bigelow, Chief Public Defender, J.K. Theodosia Johnson, Assistant Appellate Defender, Santa Fe, NM, for Appellee." ], "corrections": "", "head_matter": "2008-NMCA-041\n182 P.3d 137\nSTATE of New Mexico, Plaintiff-Appellant, v. Luis SANTIAGO, Defendant-Appellee.\nNo. 26,859.\nCourt of Appeals of New Mexico.\nJan. 31, 2008.\nCertiorari Granted, No. 30,953, March 19, 2008.\nGary K. King, Attorney General, Santa Fe, NM, James W. Grayson, Assistant Attorney General, Albuquerque, NM, for Appellant.\nJohn Bigelow, Chief Public Defender, J.K. Theodosia Johnson, Assistant Appellate Defender, Santa Fe, NM, for Appellee." }, "file_name": "0756-01", "first_page_order": 792, "last_page_order": 801 }