(dissenting).
Because the security agents here worked as instruments or agents of the state and thus were governed by the fourth amendment’s prohibition against unreasonable searches and seizures, I dissent.
The fourth amendment applies to searches and seizures effected by a private party acting “as an instrument or agent of the Government.” Skinner v. Railway Labor Executives Ass’n, 489 U.S. 602, 109 S.Ct. 1402, 1411, 103 L.Ed.2d 639 (1989). The degree of government participation in the private party’s activities sufficient to make the private party its instrument or agent is a question to be resolved “in light of all the circumstances.” Coolidge v. New Hampshire, 403 U.S. 443, 487, 91 S.Ct. 2022, 2048, 29 L.Ed.2d 564 (1971). According to the Supreme Court, the fact that the government did not compel a private party to perform a search does not, by itself, establish that the search is a private one. Skinner, 109 S.Ct. at 1411. Rather, fourth amendment protection can apply where the government has done “more than adopt a passive position toward the underlying private conduct.” Id.
In Skinner, federal regulations authorized, but did not compel, a private railroad to test employees to detect drug and alcohol use. The court found that, by removing legal barriers to testing, pre-empting collective bargaining agreements prohibiting testing, and indicating a strong preference for testing and a desire to share in the fruits of these intrusions, the government encouraged, endorsed and participated in the testing so as to implicate the fourth amendment. Id. at 1412.
Although there is no evidence that the county law enforcement officials compelled North Country Security to search vehicles, as in Skinner, they clearly adopted more than a passive position towards this conduct. At their meeting before the race season opened, Emerson, the owner and operator of North Country Security, and county law enforcement officials discussed the search and seizure of controlled substances at the gate of BIR. Emerson testified that the security guards agreed to contact him if they found contraband while searching vehicles for stowaways. Emerson would then call the county officials. They also agreed that the guards would hold persons possessing contraband until county officials arrived. An official was on call to make arrests if Emerson called. In short, the law enforcement officials here, like the government in Skinner, knew that private parties would be conducting searches and raised no legal barriers to these searches or to the prospect of private security guards forcibly holding people at the race track. Indeed, the county officials planned to use the fruits of those searches.
In Skinner, the Court discussed as a threshold matter whether the government endorsed searches and, after concluding that the fourth amendment applied, analyzed the validity of those searches. Skinner, 109 S.Ct. at 1411-22. The Court did not require the defendants to establish, as the majority suggests the defendants should here, that the government encouraged a particular manner of or objectives for searching people, nor does the Supreme Court require the government to provide incentives to private actors in order to implicate the fourth amendment. Establishing that the county officials knew that there would be security personnel at BIR searching vehicles and detaining people until they arrived is evidence that county officials acquiesced in the searches. This is official state action. Accordingly, I would *622hold that the security company here acted as an agent of the state and that defendants are entitled to the protection of the fourth amendment.
This same result follows from applying the test set out in United States v. Walther, 652 F.2d 788 (9th Cir.1981), and adopted by the majority. Majority Op. at 618. Under this test, courts determine if a private party acts as an agent of the government by considering (1) whether the government knew of and acquiesced in the search and (2) whether the search was conducted to assist law enforcement efforts or to further the private party's own ends. Id. at 792. As discussed above, the government knew of and acquiesced in the searches here. The searches benefited the government as well as BIR. BIR could have fulfilled its security needs simply by denying admittance to the race track. Certainly assisting law enforcement is a commendable practice, but, in this case, it should be exercised within the restraints of the Constitution.
Emerson’s status as an experienced police officer and special deputy for the Crow Wing County Sheriffs Department is not essential to finding state action. This fact does, however, lend additional weight to finding state involvement here. Emerson instructed Gately, a North Country security guard, to search every vehicle entering BIR during a 2-hour period the morning of the race. He was close enough to see Gately search defendants’ vehicles and handcuff the defendants to a fence. Emerson’s close contact with law enforcement officials as an employee raises the concern that his security agents, under his direction, conducted police work and circumvented the Constitution under the guise of private security work. Even though, as the majority notes, Emerson only had the power to make a citizen’s arrest at the BIR, searches effected pursuant to that authority are not immune to fourth amendment scrutiny. See State v. Schinzing, 342 N.W.2d 105, 108-11 (Minn.1983); State v. Filipi, 297 N.W.2d 275, 277-79 (Minn.1980).
Significant policy considerations underlie this issue. I agree with the Supreme Court of California that “searches by private security forces can involve a particularly serious threat to privacy.” People v. Zelinski, 24 Cal.3d 357, 365, 155 Cal.Rptr. 575, 579, 594 P.2d 1000, 1004 (1979). First, it seems to me incongruous to give private individuals who do not receive the equivalent training of official police forces broader authority to make searches and seizures than police officials themselves. Second, here, the security guards were clad in a police-like uniform, including a hat, badge, shoulder patches and belt with a flashlight. Gately also carried handcuffs and a sidearm. The security guards looked like and were acting like law enforcement officials. Private investigators and security guards who regularly engage in the “public function” of law enforcement should be subject to fourth amendment constraints. See Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265 (1946) (company-owned town acting in a public function subject to first amendment constraints); 1 W. LaFave, Search and Seizure § 1.8(d) at 200 (2d ed. 1987).
In general, it is important to note that the Constitution itself would not have been ratified if the original drafters had not promised to write the Bill of Rights. The colonists took the language in our Bill of Rights from a 700-year history of English law and were determined to put in writing fundamental rights upon which the government cannot infringe. They did not intend to leave these fundamental rights to chance, interpretation or an unwritten constitution such as the British still have. I am concerned that the majority opinion, in effect, waters down the Bill of Rights. The Bill of Rights should be changed by amending the Constitution itself, not by judicial interpretation.
As the majority acknowledges, the action taken by the security agents in searching the vehicles would undoubtedly violate the fourth amendment to the United States Constitution if performed by law enforce*623ment officials. Majority Op. at 617-618. Because I would find that North Country Security acted as an agent of Crow County law enforcement officials, I would affirm the court of appeals.