NM: Mall security guards were governed by the Fourth Amendment in their arrest of defendant as performing a police function

Mall security gaurds were considered state actors for the purposes of the Fourth Amendment for their arrest of the defendant. State v. Santiago, 2008 NMCA 41, 143 N.M. 756, 182 P.3d 137 (2008), certiorari granted, 180 P.3d 1181 (N.M., 2008):

[*17] The mall security guards exceeded their private duties or authorization. They were not protecting their employer’s property, nor did they execute a lawful citizen’s 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.

B. State Action Under the Public Function and Government Agent Tests

[*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. “When they perform a public function or act as agents of a government investigation, their activities may therefore become state action for constitutional purposes.” 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 (“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.”).

1. The Mall Security Guards Exercised Public, Police Functions

[*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 “[s]ecurity personnel hired to protect private business premises are performing traditional police functions when they arrest, question, and search for evidence against criminal suspects.” Murillo, 113 N.M. at 189, 824 P.2d at 329.

[*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, 594 P.2d at 1005 (“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.”); 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 “the private security sector has become the largest single group in the country engaged in the prevention of crime.” Zelinski, 594 P.2d at 1005 (internal quotation marks and citation omitted). One study of private policing has recently concluded that today, “private police participate in much of the policing work that their public counterparts do.” Elizabeth E. Joh, The Paradox of Private Policing, 95 J. Crim. L. & Criminology 49, 51 (2004).

[*21] It is clear that, like the public police, private security guards have the potential to violate citizens’ 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 § 1.8(a), at 260 & n.29 (4th ed. 2004) (“[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.” (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).