2013 UT App 155
_________________________________________________________
THE UTAH COURT OF APPEALS
OREM CITY,
Plaintiff and Appellee,
v.
ELBA VIRGINIA SANTOS,
Defendant and Appellant.
Memorandum Decision
No. 20120316‐CA
Filed June 20, 2013
Fourth District, Spanish Fork Department
The Honorable Donald J. Eyre Jr.
No. 101201159
Kelly Ann Booth, Attorney for Appellant
Robert J. Church, Attorney for Appellee
JUDGE MICHELE M. CHRISTIANSEN authored this Memorandum
Decision, in which JUDGES WILLIAM A. THORNE JR. and
STEPHEN L. ROTH concurred.
CHRISTIANSEN, Judge:
¶1 Defendant Elba Virginia Santos appeals her conviction for
retail theft, a class B misdemeanor. See Utah Code Ann. § 76‐6‐
602(1) (LexisNexis 2012). Santos argues that the trial court erred in
not suppressing her written and verbal statements, which were
obtained by Costco employees during a shoplifting investigation.
We affirm.
¶2 On July 16, 2010, Santos was shopping with several other
individuals at the Costco located in Orem, Utah. Three Costco
employees observed certain behavior that led them to believe that
Santos was attempting to commit retail theft. Among other things,
the Costco employees observed Santos taking several items from
Orem City v. Santos
her shopping cart and placing them behind a diaper bag that was
located in a storage compartment underneath a baby stroller.
¶3 After observing this behavior, the Costco employees
approached Santos and escorted her to the main office of the store.
While in the main office, the employees asked Santos whether she
had merchandise in her possession for which she had not yet paid
and, if so, what she intended to do with that merchandise. The
employees also searched Santos’s purse and stroller. The
employees then requested Santos’s identification and informed the
Orem City Police Department (the OCPD) of her detention. Upon
the arrival of a police officer at the Costco store, the employees
surrendered Santos to the officer’s custody.
¶4 Santos was subsequently charged with retail theft. Santos
later filed a motion to suppress the statements she made to the
Costco employees. Santos argued that the Costco employees acted
as agents of the government in conducting a search when they
detained her in Costco’s main office and subjected her to an
interrogation, thereby violating her Fourth Amendment rights. The
trial court denied Santos’s suppression motion, and the case was
thereafter tried to a jury. The jury found Santos guilty, and she
appeals her conviction.
¶5 Santos does not challenge the trial court’s factual findings,
but instead challenges the trial court’s legal conclusions supporting
its denial of her suppression motion.1 We therefore accept the trial
court’s findings of fact and review the court’s denial of Santos’s
motion to suppress for correctness. See State v. Tripp, 2010 UT 9,
¶ 23, 227 P.3d 1251 (“A trial court’s ruling on a motion to suppress
1. Although Santos seems to challenge the trial court’s findings of
fact in her opening brief, she explicitly states in her reply brief that
she challenges only the trial court’s legal conclusions.
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Orem City v. Santos
is reviewed for correctness, including its application of the law to
the facts.”).
¶6 Santos argues that the Costco employees with whom Santos
interacted were engaged in state action during her interrogation
and detention. Thus, she contends, as state actors, the Costco
employees’ interrogation and detention were subject to the
constraints of the Fourth and Fifth Amendments to the United
States Constitution. See U.S. Const. amends. IV, V. As “[t]he party
objecting to the evidence,” Santos “has the burden of establishing
the agency relationship,” i.e., that “a private individual acts as an
agent of the government in conducting a search.” State v. Koury, 824
P.2d 474, 477 (Utah Ct. App. 1991).
¶7 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). To determine whether a
private party has acted as an agent of the government, our supreme
court has adopted the two‐part test set forth by the Ninth Circuit
Court of Appeals in United States v. Walther, 652 F.2d 788 (9th Cir.
1981). See Watts, 750 P.2d at 1221–22; Koury, 824 P.2d at 477.
¶8 To satisfy the Walther test, “[t]he government must be
involved either directly as a participant or indirectly as an
encourager of the private citizen’s actions before we deem the
citizen to be an instrument of the state.” Walther, 652 F.2d at 791. To
determine the extent of the government’s involvement, we first
consider “whether the government knew of or acquiesced [in] the
search,” and then, second, we “consider the person’s intent and
purpose in conducting the search and decide whether the person
was acting in the person’s own interest or to further law
enforcement.” Koury, 824 P.2d at 477; Watts, 750 P.2d at 1221–22.
More precisely, the party claiming governmental action by a
private party must show that the private party “‘acted with the
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Orem City v. Santos
intent to assist the government in its investigatory or
administrative purposes and not for an independent purpose.’”
State v. Ellingsworth, 966 P.2d 1220, 1223 (Utah Ct. App. 1998)
(quoting United States v. Attson, 900 F.2d 1427, 1432–33 (9th Cir.
1990)).
¶9 In analyzing Santos’s case under the Walther test, and to
determine whether the government knew of or acquiesced in the
search, we first look to the OCPD’s involvement in the questioning
and detention of Santos by the Costco employees. Santos argues
that the State, and specifically Utah law, authorizes and encourages
these employees to act on the State’s behalf. She points to Utah
Code section 77‐7‐12(1), which provides,
A peace officer, merchant, or merchant’s employee,
servant, or agent who has reasonable grounds to
believe that goods held or displayed for sale by the
merchant have been taken by a person with intent to
steal may, for the purpose of investigating the
unlawful act and attempting to effect a recovery of
the goods, detain the person in a reasonable manner
for a reasonable length of time.
Utah Code Ann. § 77‐7‐12(1) (LexisNexis 2012).2
2. In its denial of Santos’s motion to suppress, the trial court relied
on a similar statute, Utah Code section 76‐6‐603, to conclude that
the Costco employees had probable cause to reasonably detain
Santos. See Utah Code Ann. § 76‐6‐603(1)(a)–(e) (LexisNexis 2012)
(“Any merchant who has probable cause to believe that a person
has committed retail theft may detain such person, on or off the
premises of a retail mercantile establishment, in a reasonable
manner and for a reasonable length of time for all or any of the
following purposes: (a) to make reasonable inquiry as to whether
(continued...)
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Orem City v. Santos
¶10 Santos argues that the government knew of and acquiesced
in the Costco employees’ questioning and detention because the
statute provides private employees with “quasi‐law enforcement
status.” In support of this proposition, Santos cites Romanski v.
Detroit Entertainment, LLC, 428 F.3d 629 (6th Cir. 2005), which
stated, “Where private security guards are endowed by law with
plenary police powers such that they are de facto police officers,
they may qualify as state actors . . . .” Id. at 637. Santos also relies
on People v. Zelinski, 594 P.2d 1000 (Cal. 1979), which held that a
search conducted by store employees was not conduct “of . . .
private citizen[s] acting in a purely private capacity.” Id. at 1006.
The Zelinski court explained that “[a]lthough the search exceeded
2. (...continued)
such person has in his possession unpurchased merchandise and
to make reasonable investigation of the ownership of such
merchandise; (b) to request identification; (c) to verify such
identification; (d) to make a reasonable request of such person to
place or keep in full view any merchandise such individual may
have removed, or which the merchant has reason to believe he may
have removed, from its place of display or elsewhere, whether for
examination, purchase, or for any other reasonable purpose; [and]
(e) to inform a peace officer of the detention of the person and
surrender that person to the custody of a peace officer.”). In her
motion to suppress, Santos did not challenge the propriety of her
detention under section 76‐6‐603 or section 77‐7‐12(1), as the trial
court’s decision would seem to indicate. Rather, she argued below,
as she does on appeal, that the Costco employees were engaged in
state action, which implicated the protections of the Fourth
Amendment. We affirm the trial court’s denial of Santos’s motion
to suppress on different grounds. See infra ¶ 16; See also State v.
Tueller, 2001 UT App 317, ¶ 23, 37 P.3d 1180 (“It is a well‐
established rule that we may affirm a judgment of the trial court on
grounds other than those used as the basis for its decision.”).
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Orem City v. Santos
lawful authority, it was nevertheless an integral part of the exercise
of sovereignty allowed by the state to private citizens.” Id.
¶11 We find these cases inapposite. In Romanski, Michigan law
endowed the private security officers with plenary power to make
arrests. See Romanski, 428 F.3d at 638–39. In contrast, Utah Code
section 76‐6‐603 and section 77‐7‐12(1) provide merchants with the
authority only to detain a retail theft suspect. See Utah Code Ann.
§ 76‐6‐603 (LexisNexis 2012); id. § 77‐7‐12(1). In Zelinski, employees
searched a suspect’s person and effects for goods that were not in
plain view, which overstepped the bounds of the authority
prescribed in the California statute authorizing a merchant’s
privilege. See Zelinski, 594 P.2d at 1003–04.3
¶12 More to the point, as explained above, we analyze this issue
under the two‐part Walther test. See supra ¶¶ 8–9. Walther
explained, “Mere governmental authorization of a particular type
of private search in the absence of more active participation or
encouragement is . . . insufficient to require the application of
fourth amendment standards.” United States v. Walther, 652 F.2d
788, 792 (9th Cir. 1981). Moreover, in State v. Watts, 750 P.2d 1219
(Utah 1988), the supreme court held that although the police had
previously told an informant that they might dismiss their criminal
3. We further note that the California Supreme Court’s decision in
People v. Zelinski, 594 P.2d 1000 (Cal. 1979), has since been
abrogated by amendment of the California Constitution. See Collins
v. Womancare, 878 F.2d 1145, 1154 (9th Cir. 1989) (“[T]he continuing
validity of Zelinski has been called into doubt by the enactment of
Proposition 8, which amended California’s Constitution to prohibit
California courts, in the absence of express statutory authority,
from exclud[ing] evidence seized in violation of either the state or
federal Constitution unless exclusion is compelled by the federal
Constitution.” (second alteration in original) (citation and internal
quotation marks omitted)); see also Cal. Const. art. 1, § 28(f)(2).
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Orem City v. Santos
case against him if he assisted with their investigation of the
defendant, “the ‘offer’ given to the informant was ‘far too vague
and general to constitute governmental knowledge’” of the
informant’s search of the defendant’s premises. Id. at 1223 (quoting
United States v. Bazan, 807 F.2d 1200, 1203 (5th Cir. 1986)). Thus, the
“[police] did not in any sense know of or acquiesce in the
informant’s conduct.” Id.
¶13 Similarly, although Utah law authorizes a merchant’s
employee to reasonably detain a person suspected of theft, this
legal authorization does not equate to the government’s knowledge
of or acquiescence in the search that occurred here. See Utah Code
Ann. § 76‐6‐603; id. § 77‐7‐12(1). Santos does not point to any
evidence in the record, nor did the trial court find, that the OCPD
knew of or acquiesced in the Costco employees’ questioning of
Santos regarding her suspected shoplifting, at least prior to the
time the Costco employees called the OCPD to inform them of
Santos’s detention. Thus, there is no indication that the OCPD had
knowledge of or acquiesced in the Costco employees’ investigatory
conduct.
¶14 Furthermore, to prevail on the second element of the Walther
test, a defendant must show that the private party conducting the
search or seizure had “‘no other purpose but to aid the government’s
investigatory or administrative functions.’” State v. Ellingsworth,
966 P.2d 1220, 1223 (Utah Ct. App. 1998) (quoting Wallace v. Batavia
Sch. Dist. 101, 68 F.3d 1010, 1013 (7th Cir.1995)) (concluding that
Workers’ Compensation Fund agents investigated the defendant’s
claims to determine his eligibility for benefits and that this purpose
was “completely independent of law enforcement[’s]” prosecution
of the defendant for workers compensation fraud).
¶15 In support of her claim that the primary purpose for the
Costco employees’ investigation was to aid prosecution of
suspected shoplifters, Santos refers only to the Costco employees’
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Orem City v. Santos
testimonies that they routinely require suspected shoplifters to
complete Costco’s investigation forms to promote criminal
prosecution of those suspects. Although Santos makes much of this
testimony, she does not refer to the employees’ other testimony as
to their reasons for requiring suspected shoplifters to complete
those forms. For example, the employees’ testimonies reveal that
Costco also has business purposes for using the forms, such as for
training, record keeping, and defending potential civil lawsuits.
Finally, the trial court found that the employees acted “with the
primary purpose of protecting Costco assets,” and Santos does not
challenge the trial court’s factual findings on appeal. See supra ¶ 5
& note 1.
¶16 Moreover, this court has determined that a private person
does not become an agent of law enforcement simply because the
private person desires that someone be arrested or prosecuted. See
State v. Koury, 824 P.2d 474, 478 n.2 (Utah Ct. App. 1991). In this
case, the Costco employees who interacted with Santos certainly
may have had an interest in the successful prosecution of Santos for
shoplifting. But we cannot say that those employees did not also
have a separate interest in protecting the store’s assets. Simply
because the Costco employees ultimately participated in Santos’s
eventual criminal prosecution does not cancel out the legitimate
business reasons for their investigation. Therefore, the court did
not err in concluding that the employees were protecting Costco
assets.
¶17 Accordingly, we affirm the trial court’s denial of Santos’s
motion to suppress.
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