                                                                 FILED

                                                           MAR 07, 2013

                                                   In the Office of the Clerk of Court 

                                                  WA State Court of Appeals, Division III 


         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                            DIVISION THREE 


STATE OF WASHINGTON,                          )          No. 29961-9-111
                                              )
                            Respondent,       )
                                              )
        v.                                    )
                                              )          UNPUBLISHED OPINION
JOEL CRAVEZ,                                  )
                                              )
                            Appellant.        )

       KORSMO, C.J.     Joel Chavez challenges his conviction for unlawful possession of

a controlled substance, arguing the trial court erred by allowing evidence that nightclub

personnel found cocaine on Mr. Chavez's person. We agree with the trial court that the

security personnel were not acting as government agents and affirm the conviction.

                                    BACKGROUND

       Club Paradise was a drinking establishment in Richland, Washington. In 2006,

Paradise was the leading liquor establishment for calls for police service, causing a drain

on the Richland Police Department's (RPD) resources.

       In April 2007, Captain Al Wehner of the RPD approached the owners of Paradise

in an effort to address the problem. The RPD and Paradise decided that the club would
No. 29961-9-III
State v. Chavez


reimburse off-duty officers to be on-site at the club's parking lot on nights when the club

was hosting larger events such as concerts.! Between May 2007 and January 2009,

Captain Wehner and Ana Cuevas, one of the club's owners, exchanged numerous e-mails

relating to this agreement in which they determined which nights the club needed off-

duty officers and how much Paradise owed RPD for reimbursement.

       During a meeting on June 22,2007, the owners of Paradise asked Captain Wehner

for advice as to what should be done with narcotics found on a patron during a weapons

frisk. Captain Wehner recommended that club personnel should not seize any narcotics

because that would put the club staff in possession of the narcotics. He advised the

owners to tell security personnel to refuse admittance to any patron found with narcotics.

On June 28, the RPD conducted an hour-long training session for the Paradise security

personnel on "verbal judo" techniques, which focus on using verbal communication to

"de-escalate" situations.

       On March 14,2009, Joel Chavez entered Paradise and submitted to a search by the

security personnel. Charles Reum and Christopher Boyd were the security personnel on

duty that night. No testimony was elicited from Mr. Boyd regarding any classes or




      ! Typically, RPD supplied three police officers and one police supervisor who
provided a police presence in the club's parking lot.

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No. 29961-9-III
State v. Chavez


involvement he had with the RPD, but Mr. Reum testified that his only involvement with

the RPD was taking the verbal judo class.

       Mr. Reum observed another member of the security team, "Paul," perform a quick

"pat down" of Mr. Chavez, during which Paul felt a bulge in Mr. Chavez's pocket. The

security team told Mr. Chavez to remove the item, but he refused and attempted to leave

the club. However, Mr. Chavez was grabbed by security and taken to the ground.

Security removed the item from Mr. Chavez's pants against his will. The item was a

small bindle of a white powdery substance. Mr. Chavez was handcuffed while security

called the RPD.

       Officer leffBickford of the RPD arrived shortly thereafter and observed Mr.

Chavez handcuffed and lying on the floor. Mr. Boyd gave the suspected controlled

substance to Officer Bickford, which tested positive for cocaine. Mr. Chavez was taken

into custody and arrested for possession of a controlled substance. The RPD did not

arrest any Club Paradise security personnel for their possession of a controlled substance.

       Mr. Chavez filed a motion to suppress the cocaine, claiming that it was the product

of an unlawful search and seizure by the security personnel who were acting as agents of

the RPD. The trial court denied the motion, holding that Mr. Chavez did not establish

that the security personnel were acting as state agents.




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No. 29961-9-111
State v. Chavez


       Mr. Chavez was convicted of unlawful possession ofa controlled substance at a

stipulated facts trial. He then timely appealed to this court.

                                        ANALYSIS

       Mr. Chavez contends that the security personnel were acting as agents of the RPD

when they seized the cocaine, the seizure was not justified under the private search

doctrine, and the State should not be allowed to benefit from the illegal conduct. Each

argument is addressed in tum.

       The Fourth Amendment to the United States Constitution and article I, section 7 of

the Washington Constitution both protect an individual's right to privacy from

governmental trespass. See, e.g., State v. Rankin, 151 Wn.2d 689, 694-95, 92 P.3d 202

(2004). The Washington Constitution affords greater protection than the Fourth

Amendment by requiring a warrant before any search, whereas the Fourth Amendment

only protects against unreasonable searches by the State. Id. The Fourth Amendment

and article I, section 7 apply only to searches by state actors, not those by private

individuals. Burdeau v. McDowell, 256 U.S. 465, 475, 41 S. Ct. 574,65 L. Ed. 1048

(1921); State v. Carter, 151 Wn.2d 118, 124,85 P.3d 887 (2004). However, the

protections afforded by the Fourth Amendment and article I, section 7 do apply to

searches by private individuals who are acting as government agents. State v. Clark, 48

Wn. App. 850,855, 743 P.2d 822 (1987).


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No. 29961-9-111
State v. Chavez


       Mr. Chavez initially contends that the security personnel were acting as state

agents when they searched him and found the cocaine. He points to the fact that Paradise

sought out both training and advice from the RPD and claims the RPD' s action of

providing off-duty officers as security detail rises to a level of involvement that creates

state action. However, the record does not demonstrate a level of involvement that rises

to state agency, especially since the security personnel's actions went directly against the

advice of the RPD.

       A private individual acts as an agent of the state if the actions of the private citizen

were "instigated, encouraged, counseled, directed, or controlled" by the state or its

officers. State v. Agee, 15 Wn. App. 709, 713-14, 552 P.2d 1084 (1976), aff'd, 89 Wn.2d

416, 573 P.2d 355 (1977). Key considerations when determining whether state agency

exists include "whether the government knew of and acquiesced in the intrusive conduct"

and whether the private party "intended to assist law enforcement efforts or to further his

own ends." Clark, 48 Wn. App. at 856. A close working relationship between the police

and a private. citizen may be "tantamount to joint action," and make the private citizen an

agent of the state. State v. Birdwell, 6 Wn. App. 284, 288,492 P.2d 249 (1972). But the

fact that there are contacts between the police and a private citizen does not make that

private citizen an agent. State v. Walter, 66 Wn. App. 862, 866, 833 P.2d 440 (1992).




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No. 29961-9-II1
State v. Chavez


       Appellate courts review a suppression ruling to determine whether substantial

evidence supports the challenged findings of fact, and whether the findings of fact

support the conclusions of law, which are reviewed de novo. State v. Armenta, 134

Wn.2d 1,9,948 P.2d 1280 (1997). The defendant bears the burden of showing that a

private citizen who provides evidence to the government was acting as an agent of the

government. Clark, 48 Wn. App. at 856.

       The trial court correctly concluded that the security personnel were not acting as

state agents when they searched Mr. Chavez and seized the cocaine. Mr. Chavez failed to

show that the security personnel's actions were "instigated, encouraged, counseled,

directed, or controlled" by the state or its officers. Although Captain Wehner and Ms.

Cuevas regularly exchanged e-mails, these e-mails were limited to discussions about

which nights the police should supply off-duty police to work the parking lot and the

club's reimbursement for these services. The off-duty officers only worked in the

parking lot of the club and were never actually part of Paradise's security team. The

RPD provided only one hour-long training session for the security personnel which was

limited to verbal judo techniques only. These facts do not establish a "joint agency"

between the RPD and Paradise.

       Furthermore, Mr. Chavez's contention that there was a police influence on the

policies of Paradise fails because the security guards' actions went specifically against


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No. 29961-9-III
State v. Chavez


the advice given by the RPD. Captain Wehner told the club owners that security should

simply refuse entrance to any patron found with narcotics during a weapons pat down and

should not seize any narcotics found on patrons. However, the security personnel refused

to let Mr. Chavez leave the club but instead detained him, searched him against his will,

and seized the cocaine they found, all in direct opposition to the RPD's advice. The

security personnel's actions were not "instigated, encouraged, counseled, directed, or

controlled" by the RPD and the trial court correctly determined that Mr. Chavez failed to

establish that the security personnel were state agents. 2

       Mr. Chavez also contends that the security personnel broke the law when they

searched and detained him against his will, and that the State should not be allowed to

benefit from the illegal actions of private citizens. In support of this argument, Mr.

Chavez cites to the California Supreme Court case of People v. Zelinski, 24 Cal. 3d 357,

366-67, 594 P.2d 1000, 155 Cal. Rptr. 575 (1979), which held that when private security

personnel conduct an illegal search or seizure while engaged in a statutorily authorized


       2 Mr. Chavez also argues that the State's failure to prosecute the security personnel
for unlawful detainment, assault, and possession of a controlled substance tends to prove
that the security personnel were acting as agents of the state. However, a prosecuting
attorney is vested with great discretion in determining when to file criminal charges, and
may consider a wide range of factors when deciding whether to prosecute. See, e.g.,
State v. Lewis, 115 Wn.2d 294, 299, 797 P.2d 1141 (1990); State v. Rowe, 93 Wn.2d 277,
287,609 P.2d 1348 (1980). Given the broad discretion granted to prosecuting attorneys,
the prosecutor's failure to file charges against the security personnel does not tend to
prove they were acting as state agents.                .
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No. 29961-9-111
State v. Chavez


citizen's arrest in aid of law enforcement authorities, the exclusionary rule applied under

the California State Constitution. 3

       Mr. Chavez's reliance on Zelinski is misplaced because Washington has never

recognized such a rule. In Washington, "there is no prohibition against the State's use of

evidence or information obtained by a private citizen, even though by unlawful means,

unless the actions of the private citizen were in some way 'instigated, encouraged,

counseled, directed, or controlled' by the State or its officers." Agee, 15 Wn. App. at 713­

14. Although the club personnel may have illegally detained and searched Mr. Chavez,

his remedy for those acts lies with the civil justice system.

       Mr. Chavez's final argument is that the illegal search and seizure by the security

personnel is not protected under article I, section 7 because the Washington Supreme

Court determined that the private search doctrine is inapplicable to warrantless searches

in State v. Eisfeldt, 163 Wn.2d 628, 185 P.3d 580 (2008). The problem with this

argument is that it assumes there was a warrantless search by the State. There was not.


       3 Following the Zelinski decision, the California Constitution was amended and
California courts have determined that this constitutional amendment abrogated Zelinski
to the extent that it expanded the concept of state action under the California Constitution
beyond federal law. See, e.g., In re Christopher H., 227 Cal. App. 3d 1567, 1571-72,278
Cal. Rptr. 577 (1991); People v. Taylor, 222 Cal. App. 3d 612,621, 721 Cal. Rptr. 785
(1990). However, at the time Zelinski was decided, article I, section 13 of the California
Constitution provided that, "The right of the people to be secure in their persons, houses,
papers and effects against unreasonable seizures and searches may not be violated," a
provision that is similar to article I, section 7 of the Washington Constitution.
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No. 29961-9-III
State v. Chavez


       Under the private search doctrine, a warrantless search by a state actor does not

offend the Fourth Amendment if the search does not expand the scope of the private

search. Walter v. United States, 447 U.S. 649, 100 S. Ct. 2395, 65 L. Ed. 2d 410 (1980).

The rationale underlying this doctrine is that an individual's reasonable expectation of

privacy is destroyed by the private actor's search. United States v. Jacobsen, 466 U.S.

109, 119, 104 S. Ct. 1652,80 L. Ed. 2d 85 (1984). Washington does not recognize the

private search doctrine as an exception to the exclusionary rule. Eisfeldt, 163Wn.2d at

637-38.

       Although Mr. Chavez is correct in his assertion that the private search doctrine is

contrary to the Washington Constitution, that rule has no bearing on the case at hand

because here there was no warrantless search by the State. The Paradise personnel

detained and searched Mr. Chavez, finding cocaine in his pocket. They seized the

cocaine and gave it to the police when they arrived at the club. Unlike Eisfeldt, where a

repairman let the police into the house, showed them a suspected grow operation, and the

police subsequently searched the house, the RPD did not conduct any search of its own.

Since no State search occurred, Eisfeldt is inapplicable because the cocaine evidence was

not admitted pursuant to the private search doctrine. The trial court did not err in denying

the motion to suppress.

       Affirmed.


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No. 29961-9-II1
State v. Chavez


      A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.


                                                              Korsmo, C.J.

WE CONCUR:




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