SW Legal studies in Business

Search and Seizure Rules Apply to State Actors, Not Other Parties

New Mexico high court held that the cocaine a private guard took from a person suspected of fighting in a shopping mall could not be suppressed as evidence against the suspect. While the search and seizure that found the cocaine was improper, the Fourth Amendment rules regarding searches applies to state actors, such as the police, not private parties.

Topic Criminal Law
Key Words

Search and Seizure; Evidence; Security Guards

C A S E   S U M M A R Y

Security guards at a mall in Albuquerque worked for Valor Security. While on duty, they heard reports of a fight and ran to investigate. As they approached, Santiago ran out of the mall. The guards sprayed him with mace, tackled him, and handcuffed him. While waiting for the police to come, they searched his pockets and removed a pill bottle that contained little bags of cocaine. They turned the cocaine over to the police when they arrived to arrest Santiago. He was tried for possession of a controlled substance. He moved to suppress the evidence, as the bottle had been taken from him in an improper search. The district court suppressed the cocaine and related evidence as a fruit of the poisonous tree. The appeals court upheld the suppression, holding that the security guards were state actors and subject to the restrictions of the Fourth Amendment. The state appealed.


Reversed and remanded. The Fourth Amendment prohibits unreasonable searches and seizures by government actors. Under the exclusionary rule, evidence from an unconstitutional search is suppressed. Private security guards have not been granted broad police powers by the New Mexico legislature. They are only authorized to investigate matters that are incidental to a theft, loss, or taking of property that the guard has been hired to protect. Hence, the mall guards are not state actors for Fourth Amendment purposes. While the guards had no authority to search Santiago, as he was not accused of theft from the mall, the fact is that they did. Handing to the police the cocaine they found did not mean that the police ratified an improper search by private parties. Since the Fourth Amendment did not apply to the search by the mall guards, the evidence may be used.


State v. Santiago, ---P.3d--- (2009 WL 3094890, Sup. Ct., N.M., 2009)

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