The Utah Court of Appeals recently addressed whether the actions of store employees who detain and search an individual suspected of retail theft can be attributed to the government for purposes of challenging the search and seizure under the Fourth Amendment of the United States.
In Orem City v. Santos, Elba Santos was charged with stealing from Costco. While Santos was shopping three Costco employees observed what they considered to be unusual behavior. They escorted her to the main office where they questioned her and searched her purse and stroller. After being charged with retail theft in the Orem City Justice Court, Santos filed a motion to suppress the statements she made to the Costco employees, arguing that the Costco employees were acting as government actors. “When a private party acts as an agent of a government authority, any search performed by that private party becomes subject to state and federal constitutional protections. See State v. Watts, 750 P.2d 1219, 1221 (Utah 1988).” The trial court found that the employees were not government actors.
On appeal the court applied a two part analysis to determine if the employees were government actors, thereby making their actions subject to a suppression motion.
The test used to determine if a private party is involved in state action comes from the Ninth Circuit case Walther, 652 F.2d 788. In that case the court determined that in order for a private party to be considered a state actor “the government must be involved either directly as a participant or indirectly as an encourager of the private citizen’s actions.” To determine the extent of the government’s involvement the court has to consider “whether the government knew of or acquiesced in the search,” and then, second, “the person’s intent and purpose in conducting the search” and “whether the person was acting in the person’s own interest or to further law enforcement.” The defendant also has to show “that the private party acted with the intent to assist the government in its investigatory or administrative purposes and not for an independent purpose.”
The court found that in Utah, the state has given merchants the authority to detain a suspected thief, but that authority does not equate to the government’s knowledge or acquiescence of the search by the Costco employees of Santos. Additionally, the court found that because Costco had a legitimate business purpose of asking Santos questions (liability, protecting business assets, etc.), Santos could not show that Costco engaged in state action. Thus, the Utah Court of Appeals found that the Costco employees were not engaged in state action, and therefore, their questioning of the defendant was not subject to a motion to suppress.
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