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 1        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 2 STATE OF NEW MEXICO,

 3          Plaintiff-Appellee,

 4 v.                                                                                     No. 34,235

 5 DAVID HACKER,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
 8 Briana H. Zamora, District Judge

 9   Hector H. Balderas, Attorney General
10   Santa Fe, NM
11   Charles J. Gutierrez, Assistant Attorney General
12   Albuquerque, NM

13 for Appellee

14 Bennett J. Baur, Chief Public Defender
15 Will O’Connell, Assistant Appellate Defender
16 Santa Fe, NM

17 for Appellant

18                                 MEMORANDUM OPINION

19 SUTIN, Judge.
 1   {1}   Following his provisional guilty plea to possession of a controlled substance

 2 and drug paraphernalia, Defendant appeals the district court’s order denying his

 3 motion to suppress. Defendant contends that private security guards improperly

 4 detained and searched him in violation of his constitutional right to be free from

 5 unreasonable searches and seizures. He further contends that a law enforcement

 6 officer’s later pat-down search was patently a search for evidence and was unjustified

 7 as a search for weapons. We hold that the district court did not err in denying

 8 Defendant’s motion to suppress.

 9 BACKGROUND

10   {2}   Evidence at the suppression hearing supports all that follows in this background

11 section. Valor Security is a private security company that pursuant to contract

12 conducted surveillance of the parking areas of Coronado Shopping Center in

13 Albuquerque, New Mexico for the purpose of providing security to the property, as

14 well as visitors and tenants. Valor’s standard operating procedures include looking for

15 suspicious, unlawful activity in the parking lot area. The standard operating

16 procedures govern such activities as surveillance, initiating contact with individuals,

17 using handcuffs, and when to follow someone who has left Coronado’s property.

18 Valor conducted the training of its guards on standard operating procedures internally.




                                               2
 1   {3}   The Albuquerque Police Department (APD) maintains a substation on

 2 Coronado’s property. The only significant institutional connection between Valor

 3 employees and APD officers is that APD has conducted seven to eight informal

 4 training classes annually for Valor guards, including training on narcotic transactions

 5 and how to differentiate between types of drugs. In these training sessions, APD does

 6 not set Valor’s policies, train Valor on issues of state law, or direct Valor guards on

 7 how to act.

 8   {4}   With respect to the incident in question, Valor observed Defendant riding his

 9 bicycle around the Coronado parking lot without entering or leaving the mall. The

10 parking lot had been having a high number of vehicle crimes. Valor observed

11 Defendant enter a silver vehicle, briefly converse with the driver, and engage in a

12 hand-to-hand exchange, all over a period of 30-40 seconds. The driver dropped

13 Defendant off at his bicycle, and Defendant began riding through the parking lot away

14 from the building. Believing that a drug transaction had occurred, a Valor guard

15 followed the vehicle to get a license plate number. Defendant continued to ride his

16 bicycle around the parking lot. Another Valor guard pulled his vehicle in front of

17 Defendant, initiated contact, and asked something along the lines of “what’s going

18 on?” Defendant responded, “[w]hat the fuck do you want?” When the guard tried to

19 converse with Defendant, Defendant became “extremely agitated” and began


                                              3
 1 “screaming” statements like “[w]hat the fuck did I do? Leave me alone. I didn’t do

 2 nothing.” Defendant reached with one of his hands to his side in a manner that made

 3 the guard feel threatened. The guard secured Defendant’s arm by grabbing his wrist

 4 and told Defendant to calm down. Defendant started fighting, trying to get away, and

 5 trying to run.

 6   {5}   At this point, with two guards present, one guard tried to execute an armbar

 7 takedown as Defendant was swinging his other arm either trying to strike the guard,

 8 escape, or both. “There was physical contact between the two.” When Defendant

 9 continued to fight, scream, and yell, the guards took him to the ground and placed him

10 in handcuffs. Defendant was asked if he had any weapons and a security pat-down

11 appears to have been performed. One of the guards made the determination to ban

12 Defendant from Coronado for criminal trespass. The Valor shift supervisor began

13 filling out paperwork and conversing with Defendant to obtain information for the

14 ban. Valor dispatch had called APD in regard to the altercation and potential drug

15 transaction. While the guards waited for APD to respond, one of the guards had a

16 conversation with Defendant regarding the drug transaction. On the subject of

17 quantity, it appears that Defendant admitted to buying drugs from the driver of the

18 vehicle, got more agitated, and began saying “[m]y life is over” multiple times and

19 rocking back and forth. As the supervisor was filling out the paperwork, Defendant


                                             4
 1 got up and ran southbound off the property. Two guards left the property to find

 2 Defendant.

 3   {6}   One of the guards found Defendant between an apartment complex and the

 4 freeway and told him to stop, but Defendant kept “trying to run.” The guard caught

 5 up with and grabbed Defendant and both fell to the ground. A second guard arrived,

 6 and Defendant was transported to the APD substation at Coronado, where an APD

 7 officer, Officer Tapia, was given “a rundown of the situation on what had occurred[,]”

 8 which included Defendant’s hostile behavior toward the guards.

 9   {7}   Officer Tapia asked Defendant “[w]hat’s going on?” and Defendant responded,

10 “I made a mistake.” After obtaining Defendant’s address, Officer Tapia asked

11 Defendant what he was doing in the area, and Defendant responded, “I’m dumb.”

12 Officer Tapia Mirandized Defendant, which Defendant invoked. In her testimony,

13 Officer Tapia described her intention toward Defendant as follows: (1) believing that

14 she had possible assault charges, she wanted Defendant’s version of the events; (2) if

15 there were assault charges, her intention was to issue a criminal summons; and (3) she

16 intended to issue Defendant a criminal trespass notice for Coronado, then ensure that

17 Defendant left Coronado’s property.

18   {8}   Officer Tapia asked Defendant to stand so that she could perform a pat-down

19 for weapons based on her suspicion that Defendant may have been armed. She


                                             5
 1 attempted the pat-down prior to releasing Defendant from his handcuffs because, as

 2 she described, “[g]iven that he had already fought with three security officers that are

 3 much bigger than me, I wanted to ensure that I was safe.” Officer Tapia testified that

 4 if Defendant was “willing to fight with three security officers and run from them, . . .

 5 there was a possibility that he did have a weapon on him.” She explained that “[g]iven

 6 that he had been uncooperative, the suspicious behavior [he] showed, and that he,

 7 from my understanding, was uncooperative with mall security throughout their entire

 8 contact, I felt that it was a possibility he had a weapon on him.” Her intent was to pat

 9 Defendant down, complete preparation of a summons, issue and explain the criminal

10 trespass notification, and release him, making sure he left the property.

11   {9}   As Officer Tapia began the pat-down, Defendant said “I’m so stupid,” to which

12 Officer Tapia asked, “You’re so stupid?” Unsure of the reason for Defendant’s

13 statement, Officer Tapia then stated, “[y]ou know, you’ve been cooperative with me

14 so far.” Defendant then stated, “[m]y life is pretty much over[,]” causing Officer Tapia

15 to ask “[w]hat?” Defendant repeated that his life was pretty much over. Officer Tapia

16 asked why Defendant’s life was pretty much over, and Defendant admitted he had

17 drugs and then indicated that they were in his pocket. Officer Tapia asked Defendant

18 if she could take the drugs out, and Defendant said, “[y]eah, go ahead.” Officer Tapia




                                              6
 1 retrieved a black velvet bag containing a glass pipe with residue, a small blue baggy,

 2 and a clear plastic baggy containing methamphetamine.

 3   {10}   Officer Tapia testified that she did not intend to check Defendant’s pocket for

 4 drugs because she did not believe that the Valor guard’s statement was enough to

 5 justify “going into somebody’s pocket[.]” She further testified that she would not have

 6 retrieved the drugs from Defendant’s pocket if he had not consented, and instead, she

 7 would have obtained a warrant.

 8 THE DISTRICT COURT’S DETERMINATIONS

 9   {11}   The district court entered an order containing findings and conclusions with

10 respect to the foregoing background facts. Defendant has not challenged the court’s

11 findings. Findings regarding the status of Valor include: (1) None of the Valor guards

12 involved are certified law enforcement officers; (2) Valor is not hired or advised by

13 a state law enforcement agency; (3) Valor policy is not validated or directed by a state

14 law enforcement agency; (4) Valor uses a different radio channel than local law

15 enforcement agencies; (5) APD did not instruct Valor to approach, seize, or chase

16 Defendant on October 26, 2012; (6) State law enforcement agencies did not

17 discourage Valor’s behavior because they did not know about it as it relates to this

18 case; and (7) Officer Tapia treated Valor guards as she would treat any civilian when

19 she arrived on scene.


                                               7
 1   {12}   Based on State v. Santiago, 2009-NMSC-045, 147 N.M. 76, 217 P.3d 89, the

 2 district court concluded that Valor was not a state actor. The finding regarding Officer

 3 Tapia’s pat-down was that “Officer Tapia had reasonable concern for her safety upon

 4 initially encountering Defendant[, a]ccording to the [information] she received from

 5 [a Valor guard] that Defendant had fought with him, that Defendant had run away

 6 from him, and that Defendant was acting in an agitated manner.” The court found that

 7 Officer Tapia acted reasonably.

 8 DISCUSSION

 9 I.       Detention by Valor Did Not Constitute a Constitutional Violation

10   {13}   There exists no reason for any detailed discussion on this point. Our Supreme

11 Court’s Santiago decision is directly on point and controlling under the facts

12 presented in the present case. Id. Santiago involved the same private security company

13 and the same shopping mall as in the case now before us. Id. ¶ 4. The facts in the

14 present case do not fall outside of Santiago’s reach. Defendant’s argument to the

15 contrary is unpersuasive, in that it fails to significantly distinguish Santiago on the

16 facts and it fails to provide any authority to support a view that Santiago is not

17 controlling. Applying Santiago, we hold that Valor was not a state actor under either

18 an agency theory or a public function theory. See id. ¶¶ 29-37.

19 II.      Officer Tapia’s Pat-Down Did Not Constitute a Constitutional Violation


                                              8
 1 A.       Standard of Review and Rules

 2   {14}   This Court’s review of a district court’s ruling on a motion to suppress involves

 3 a mixed question of fact and law. See State v. Vandenberg, 2003-NMSC-030, ¶ 17,

 4 134 N.M. 566, 81 P.3d 19. “While deferring to the district court with respect to factual

 5 findings and indulging in all reasonable inferences in support of that court’s decision,

 6 we nonetheless review the constitutional question of the reasonableness of a search

 7 and seizure de novo.” State v. Light, 2013-NMCA-075, ¶ 19, 306 P.3d 534 (internal

 8 quotation marks and citation omitted).

 9   {15}   To justify a protective pat-down, the officer “must have a sufficient degree of

10 articulable suspicion that the person being frisked is both armed and presently

11 dangerous.” Vandenberg, 2003-NMSC-030, ¶ 22 (emphasis omitted). “[T]he officer

12 need not be absolutely certain that the individual is armed; the issue is whether a

13 reasonably prudent officer in the circumstances would be warranted in the belief that

14 [her] safety . . . was in danger.” Id. ¶ 23 (alteration, internal quotation marks, and

15 citation omitted). Our courts provide significant deference to the judgment of the

16 officer. If reasonable people might differ on the justification for a protective pat-down,

17 “we defer to the officer’s good judgment.” Id. (internal quotation marks and citation

18 omitted).




                                                9
 1   {16}   The evidence indicates that Officer Tapia conducted the pat-down based on

 2 what the guards detailed about Defendant’s hostile behavior and conduct that led her

 3 to believe that Defendant could be armed and dangerous. Further, she conducted the

 4 pat-down before she released Defendant from the handcuffs in order to ensure her

 5 safety once Defendant was no longer restrained. The district court could reasonably

 6 infer and conclude that Officer Tapia’s search was for weapons and not, as Defendant

 7 argues, “patently a search for evidence” or pretextual. We are not persuaded by

 8 Defendant’s argument that because Officer Tapia was aware that a guard may have

 9 already conducted a pat-down, she had no reasonable basis on which to conduct a pat-

10 down for weapons herself. Under the totality of circumstances, we hold that the

11 district court did not err in determining that Officer Tapia’s pat-down for weapons was

12 reasonable.

13 CONCLUSION

14   {17}   We affirm the district court’s denial of Defendant’s motion to suppress.

15   {18}   IT IS SO ORDERED.

16                                          __________________________________
17                                          JONATHAN B. SUTIN, Judge

18 WE CONCUR:


19 _______________________________
20 MICHAEL E. VIGIL, Chief Judge

                                              10
1 _______________________________
2 STEPHEN G. FRENCH, Judge




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