Case Information
_________________________________________________________
T HE U TAH C OURT OF A PPEALS
O REM C ITY , Plaintiff Appellee, v.
E LBA V IRGINIA S ANTOS ,
Defendant Appellant. Memorandum Decision No.
Filed June
Fourth District, Spanish Fork Department The Honorable Donald J. Eyre Jr. No.
Kelly Ann Booth, Attorney Appellant Robert J. Church, Attorney Appellee
J UDGE M ICHELE M. C HRISTIANSEN authored Memorandum
Decision, which J UDGES W ILLIAM A. T HORNE J R and S TEPHEN L. R OTH concurred.
CHRISTIANSEN, Judge:
¶1 Defendant Elba Virginia Santos appeals her conviction for retail theft, class B misdemeanor. Code Ann. ‐ 602(1) (LexisNexis argues erred in suppressing written verbal statements, were obtained during shoplifting investigation. affirm. ¶2 On July was shopping several other individuals located Orem, Utah. Three Costco observed certain behavior led them believe attempting commit theft. Among things, observed taking several items from
Orem City Santos her shopping cart and placing them behind a diaper bag was located in a storage compartment underneath a baby stroller. ¶3 After observing behavior, the Costco employees approached Santos and escorted her main office store. While in main office, employees asked Santos she merchandise her possession she had yet paid and, if so, what she intended do with merchandise. The searched Santos’s purse and stroller. The then requested Santos’s identification and informed Police Department (the OCPD) her detention. Upon arrival a police officer store, employees surrendered Santos officer’s custody.
¶4 Santos subsequently charged theft. later filed motion suppress statements she made employees. argued acted agents conducting when they detained her Costco’s main office and subjected her an interrogation, thereby violating her Fourth Amendment rights. The trial denied suppression motion, case was thereafter tried jury. The jury found guilty, she appeals her conviction. challenge trial court’s factual findings,
but instead challenges trial court’s legal conclusions supporting denial her suppression motion. therefore accept trial court’s findings fact review court’s Santos’s motion suppress correctness. Tripp, UT 9, ¶ (“A trial court’s ruling suppress Although seems challenge trial court’s findings fact opening brief, she explicitly states her reply brief challenges only court’s legal conclusions. Santos reviewed correctness, including application of the the facts.”).
¶6 argues the with whom interacted were engaged state action during interrogation and detention. Thus, contends, as state actors, the Costco interrogation and detention subject the constraints the Fourth and Fifth Amendments the United States Constitution. See U.S. Const. amends. IV, V. As “[t]he party objecting evidence,” “has the burden establishing agency relationship,” i.e., “a private individual acts as an agent government conducting search.” State Koury , P.2d (Utah 1991).
¶7 When private party acts as an agent government authority, search performed by private party becomes subject state federal constitutional protections. See v. Watts , P.2d 1988). To determine whether a private party acted as an agent government, our supreme adopted two part test set forth Ninth Circuit Court Appeals Walther , F.2d Cir. Watts , P.2d at 1221–22; Koury , P.2d at 477. To satisfy Walther test, “[t]he government must be involved either directly participant indirectly as an encourager private citizen’s actions before we deem the citizen be instrument state.” Walther , at To determine extent government’s involvement, we first consider “whether acquiesced [in] search,” then, second, “consider person’s intent and conducting decide person acting person’s own interest further law enforcement.” Koury 477; Watts P.2d 1221–22. More precisely, party claiming governmental action a party must show party “‘acted intent to assist government its investigatory or administrative purposes and for independent purpose.’” Ellingsworth 1998) (quoting Attson 1432–33 Cir. 1990)). In analyzing Santos’s case under Walther test, and to
determine or acquiesced the search, first look OCPD’s involvement questioning and detention by employees. argues State, specifically Utah law, authorizes and encourages these act on State’s behalf. She points Utah Code section ‐ ‐ 12(1), provides,
A peace officer, merchant, or merchant’s employee, servant, or agent who has reasonable grounds to believe goods held displayed for sale the merchant have been taken a person intent steal may, for investigating the unlawful act attempting effect a recovery goods, detain a reasonable manner for a reasonable length time.
Utah Code Ann. § ‐ ‐ 12(1) (LexisNexis suppress, relied on a similar statute, Utah Code section conclude probable cause reasonably detain Santos. Code Ann. 603(1)(a)–(e) (LexisNexis 2012) (“Any merchant who probable cause believe person committed retail theft may detain such person, off premises mercantile establishment, reasonable manner reasonable length time all following purposes: (a) make reasonable inquiry whether
(continued...) argues that of acquiesced questioning detention because statute provides private “quasi ‐ law enforcement status.” In support of proposition, cites Romanski v. Detroit Entertainment, LLC , Cir. 2005), which stated, “Where private security guards are endowed with plenary police powers such that they are de facto police officers, they may qualify as state actors . . . .” Id. 637. also relies on People Zelinski P.2d (Cal. 1979), which held that a search conducted store conduct “of . . citizen[s] acting a purely capacity.” Id. 1006. The Zelinski court explained “[a]lthough exceeded (...continued) such person his possession unpurchased merchandise and make reasonable investigation ownership of such merchandise; (b) request identification; (c) verify such identification; (d) make a reasonable request such person place or keep full view any merchandise such individual may have removed, or which merchant reason believe he may have removed, from its place display elsewhere, for examination, purchase, other reasonable purpose; [and] (e) inform peace officer detention person and surrender custody peace officer.”). her suppress, did challenge propriety her detention under section section 12(1), as trial court’s decision would seem indicate. Rather, she argued below, as on appeal, engaged in state action, implicated protections Fourth Amendment. affirm trial court’s motion suppress different grounds. infra ¶ 16; See v. Tueller UT App ¶ (“It well ‐ established rule may affirm judgment on grounds than those used basis decision.”). v. lawful authority, it nevertheless an integral part exercise sovereignty allowed by state private citizens.” Id. ¶11 We find these cases inapposite. In Romanski , Michigan law endowed security officers with plenary power make arrests. See Romanski , 428 F.3d 638–39. In contrast, Utah Code section 76 ‐ 6 ‐ 603 section 77 ‐ 7 ‐ 12(1) provide merchants authority only detain theft suspect. See Code Ann. § (LexisNexis 2012); id. § 7 ‐ 12(1). Zelinski , employees searched suspect’s effects goods in plain view, which overstepped bounds authority prescribed in California statute authorizing merchant’s privilege. See Zelinski, P.2d 1003–04. [3] ¶12 More point, explained above, analyze issue under two part Walther test. See supra ¶¶ 8–9. Walther explained, “Mere governmental authorization particular type absence more active participation or encouragement is . . insufficient require application of fourth amendment standards.” v. Walther , F.2d 788, (9th Cir. Moreover, Watts , P.2d 1988), supreme held although police had previously told informant they might dismiss their criminal further note California Supreme Court’s decision in People Zelinski (Cal. 1979), since been abrogated by amendment California Constitution. Collins Womancare Cir. 1989) (“[T]he continuing validity Zelinski been called into doubt enactment Proposition amended California’s Constitution prohibit California courts, absence express statutory authority, from exclud[ing] evidence seized violation either state or federal Constitution unless exclusion compelled federal Constitution.” (second alteration original) (citation internal quotation marks omitted)); see Cal. Const. art. 28(f)(2). v. case against him if he assisted their investigation of the defendant, “the ‘offer’ given to the informant was ‘far too vague general to constitute governmental knowledge’” of the informant’s search the defendant’s premises. Id. (quoting Bazan F.2d (5th Cir. 1986)). Thus, the “[police] did not sense know or acquiesce in the informant’s conduct.” Id.
¶13 Similarly, although Utah law authorizes merchant’s employee reasonably detain suspected theft, this legal authorization does equate government’s knowledge or acquiescence search that occurred here. Code Ann. 603; id. § 12(1). point any evidence record, nor did find, that OCPD or acquiesced Costco employees’ questioning of regarding her suspected shoplifting, least prior the time Costco called OCPD inform them of detention. Thus, there no indication OCPD had knowledge acquiesced employees’ investigatory conduct.
¶14 Furthermore, prevail second element Walther test, defendant must show party conducting seizure “‘ no purpose but aid government’s investigatory administrative functions.’” Ellingsworth , 1998) (quoting Wallace Batavia Sch. Dist Cir.1995)) (concluding Workers’ Compensation Fund agents investigated defendant’s claims determine his eligibility for benefits purpose was “completely independent enforcement[’s]” prosecution defendant workers compensation fraud). support claim primary investigation aid prosecution suspected shoplifters, refers only employees’ testimonies that they routinely require suspected shoplifters complete Costco’s investigation forms promote criminal prosecution those suspects. Although makes much this testimony, does not refer employees’ testimony as their reasons for requiring suspected shoplifters complete those forms. For example, testimonies reveal Costco business purposes using forms, such for training, record keeping, defending potential civil lawsuits. Finally, trial court found that employees acted “with primary protecting assets,” does not challenge trial court’s factual findings appeal. supra ¶ & note 1.
¶16 Moreover, court determined person does not become an agent enforcement simply because desires someone be arrested prosecuted. See Koury n.2 this case, employees who interacted certainly may have interest successful prosecution for shoplifting. But we cannot say those did not also have separate interest protecting store’s assets. Simply because ultimately participated Santos’s eventual criminal prosecution cancel out legitimate business reasons their investigation. Therefore, did err concluding protecting Costco assets.
¶17 Accordingly, affirm court’s Santos’s suppress.