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Westec story: gated communities and the Fourth Amendment

Westec story: gated communities and the Fourth Amendment.

by John B. Owens

I. Introduction

[F]ortified developments are ... proliferating. Their gates range from elaborate two-story guardhouses manned 24-hours a day to roll-back wrought iron gates to simple electronic arms. Guardhouses are usually built with one lane for guests and visitors, and a second lane for residents, who may open the gates with an electronic card, a punched-in code, or a remote control. Some gates with round-the-clock security require all cars to pass the guard, issuing identification stickers for residents' cars. Unmanned entrances have intercom systems, some with video monitors, for visitors asking for entrance.(1)

This passage comes neither from a James Bond dossier on his enemies like Doctor No, nor from a set designer's notes for the latest Judge Dredd/Road Warrior post-apocalypse nightmare. This passage is America, 1997.

These fortified, walled housing developments, often called "gated communities"(2) are "[tlhe fastest-growing residential communities in the nation."(3) They are no longer suburban palaces reserved for rock stars, athletes, or senior partners at law firms, nor are they merely residential retirement communities. Inner city residents, as well as "burbinites," are fortifying their communities,(4) largely out of fear of crime.(5) Gated communities are appearing around the country, with the largest concentrations in California, Texas, Illinois, New York, Florida, and Arizona.(6) Approximately 30,000 gated communities currently exist, and Oscar Newman, president of the Institute for Community Design Analysis, estimates that this total will double by end end of the Century.(7) With up to four million people currently living in these private communities(8) and their populations growing every day, a significant (and often influential) segment of American society will live under private government. These private neighborhoods are more than just fancy homes behind a fence: "[T]hey privatize community space, not merely individual space. Many of these communities also privatize civic responsibilities such as police protection and communal services such as schools, recreation, and entertainment. The new developments create a private world that shares little with its neighbors or the larger political system."(9)

Guarding these gated communities are the "private police" -- security firm like Westec Security, "whose warning signs are becoming as common as weeds on Southland [Los Angeles] lawns."(10) The growth of the private security industry mirrors the explosion in gated communities: Since 1980, the number of security guards has risen 64% to 1.6 million,(11) and it will reach 1.9 million by the year 2000.(12) Currently, private officers outnumber public police officers three to one.(13) Although the law treats these guards as private citizens,(14) the guards' responsibilities often exceed those of the "Average Joe." Many gated communities rely on private security for their police needs,(15) and the guards often resemble police officers: They wear uniforms with badges, carry guns, and drive patrol cars with sirens.(16) As private security increasingly plays the role of police officer for gated communities, Fourth Amendment issues of unconstitutional searches and seizures will arise.

"Because scholarly work on gated communities is essentially non-existent,"(17) no one knows whether the Fourth Amendment(18) applies to these private police forces that protect Fortress America." In Burdeau v. McDowell,(19) the Supreme Court held that "[the Fourth Amendment] ... was intended as a restraint upon the activities of sovereign authority, and was not intended to be a limitation upon other than governmental agencies."(20) In the almost seventy-five years since Burdeau, the Supreme Court continually has held that purely private searches do not implicate any Forth Amendment interests.(21) A private search can trigger the Fourth Amendment only if, "in light of all the circumstances of the case, [the private actor] must be regarded as having acted as an `instrument' or agent of the state.(22) Therefore, "town snoop" may open someone's mail,(23) inspect his movies,(24) or even break into his personal safe and desk drawers, (25) all without offending the Fourth Amendment, so long as she acts without police instigation. Perhaps the Framers never wished for the Fourth Amendment to apply to the town snoop or the nosy "little old lady" on the corner.(26) Yet these Angela Lansbury types are a far cry from the modern private police forces that patrol gated communities. When a private security force, such as a trained Westec team with former police officers, effectively acts as the police, does it trigger the Fourth Amendment?

Although the lower courts have largely split on whether private police forces are state actors,(27) thus implicating the Fourth Amendment, the Supreme Court has never decided this issue.(28) As gated communities and their private police envelop more people and land every day, the role that the Fourth Amendment plays in gated communities increases in importance. Part II of this Article examines the gated community phenomenon, and Part III scrutinizes the modern security forces that patrol "Fortress America."

The Article then pursues four possible that courts could use to extend the Fourth Amendment to gated communities. Part IV scrutinizes Burdeau v. McDowell(29) and determines the feasibility of overturning this cornerstone of private search cases. The remaining Parts apply various branches of the state action theory(30) to gated communities and their private police forces. Part V evaluates the application of the "if it looks like a duck, and it quacks like a duck, then it's a duck" test of Marsh v. Alabama(31) to the emerging "gated towns" that contain a variety of private social services. Next, Part VI applies the "symbiotic" state action theory of Burton v. Wilmington Parking Authority and Moose Lodge No. 107 v. Irvis(33) to the growing partnerships between die public and private police. Finally, Part VII determines if "police services" qualify as state action under the "powers traditionally exclusively reserved to the State" test of Jackson v. Metropolitan Edison Co.(34)

II. Gated Communities (35)

A. Their Proliferation

The original gated communities were the ancient Greek city-states, but the first true "gated" communities in the United States belonged to upper-class East Coast and Hollywood residents in the early twentieth century.(36) The creation of retirement developments in the 1960s and 1970s set the groundwork for today's suburban fortresses.(37) In the 1980s, heavy real estate speculation, combined with a fear of crime, led to the gated explosion(38) that has increased dramatically ever since.(39)

Although gated communities were initially safe havens for the wealthy and elderly, diverse social groups are now "forting up": 40

Gates, fences, and walls are no longer solely for those with money. At public housing projects throughout the country, housing authorities are installing fences and using guardhouses to restrict access to residents and their guests. Inner city communities are now doing the same, blocking streets to create mazes that deter drive-by crime and quick getaways, and gating apartment complexes and even entire neighborhoods.... ....

Working class city neighborhoods are also installing gates and fences. ....

Middle class homeowners are also forting Up .... 41

Nothing suggests that this "forting up" trend will slow. For example, a 1990 survey of potential Southern Californian home buyers determined that 54% wanted a home in a gated, walled development.(42) Considering that "8 out of 10 urban projects built currently is gated,"(43) not to mention we suburban explosion of gated communities, Fortress America increasingly will engulf significant segments of population and land mass.

B Gated Government(44)

Often accompanying the gates and the guards are many "town-like" features that transform private communities into far more than nice places to raise a family:

[T]he communities privatize community space, not merely individual space.

Many of these communities also privatize civic responsibilities such as police

protection and communal services such as schools, recreation, and

entertainment. The new developments create a private world that shares little with its

neighbors or tile larger political system.(45)

Some private communities are providing their own garbage collection, street cleaning, and even parks.(46) Las Colinas, Texas, exemplifies the "new town" move toward complete privatization of civic responsibilities. In addition to its population of 30,000, this new town encompasses hotels, retail complexes, and light industry behind its electronic gates.(47) Las Colinas' town square is none other than the privately owned and controlled mall.(48) Another example of the privatized community is the mammoth Silver Creek Valley Country Club in San Jose, California. A twenty-four hour gatehouse guards 1,500 residential units, and also will protect "a public elementary school and some commercial development on site, with separate entrances for those outside the development."(49) Some gated communities are marching even further down the road toward complete privatization: Five private communities are now independent and incorporated towns, complete with private government.(50) Accompanying these "private-civic" services are private governments, called residential associations, that demand adherence to rigid rules of conduct,(52) often without regard to basic constitutional rights.(53) Although states may exercise considerable control over these private governments, "existing state legislation governing the creation of condominiums, subdivisions, and cooperative apartments gives great latitude to the content of association rules and covenants. Rarely do such laws guarantee specific civil rights for association members."(54) Aside from racially restrictive covenants, which receive "strict scrutiny,"(55) courts often apply a very deferential reasonableness test to association provisions.(56) Private searches and seizures by security guards must pass only this deferential reasonableness test, rather than Fourth Amendment Scrutiny.(57) A residential association's authority over its "citizens" mirrors the power of "a CEO [over] a corporation."(58) Through the residential agreements, residents can bargain away their Fourth Amendment rights to join the gated community.(59) For example, before the collapse of Lincoln Savings & Loan Association, Charles Keating dreamed of building "Estrella," a private community of 100,000 near Phoenix. Although Keating never finished this project, Estrella's restrictions and covenants would have mandated that Estrella's board of directors could enter people's homes and "remove individual property that it considered obscene."(60)

Proponents of these often invasive provisions justify them as consensual.(61) Since the residents choose to live in such a community, they can consent to whatever reasonable restrictions the community desires. If the association's regulations offend someone's sensibilities, he can always move out. Yet with private communities encompassing more than merely homes but also shops and even light industry,(62) not everyone who passes through those patrolled gates consents to a community's regulations. For example, at Leisure World, a retirement community in Silver Spring, Maryland, "security guards board the public buses that serve the development, monitoring passengers while inside the walls to be sure `undesirables' don't enter via the bus."(63) Now if a person rides the public bus to meet a friend who works in Leisure World, she does not consent to the invasive and intimidating actions of the Leisure World guards. Or if a state public utility worker rides the bus into Leisure World to inspect the community's gas lines, must he open his tool box for inspection? Again, if the invasive search bothers him enough, he could quit his job and find work elsewhere. Yet the increasing privatization of suburban and urban communities effectively may prevent him from finding employment free from such intrusions. Some scholars suggest that the private community explosion will force even new home buyers to consent to private government: "[A]s old housing is replaced by new CID [common-interest development] housing, consumer choice is increasingly restricted. In short, growing numbers of Americans who wish to purchase new houses are going to be living in CIDS, and under the rule of private governments, regardless of their preferences."(64)

One may argue that these examples are extreme and hardly represent daily life in Leisure World or private communities in general. Yet they demonstrate that with the emergence of gated communities, complete with hotels and industry, not all those who encounter their restrictive provisions necessarily consent to them. Since gated communities often totally rely upon private police forces for their protection, these residents, nonresidents, security guards, and the Fourth Amendment surely will conflict.

C. Why?

Although many of the first modern gated communities targeted the elderly or people who liked living on a golf course, America's fear of crime(65) provides real estate agents with their best sales pitch. Oscar Newman explains the dramatic increase in privatized neighborhoods and towns: "People want to be totally assured that there is zero crime."(66) Real estate market analyst Sanford Goodkin agrees: "People are feeling insecure. They want their home to be a fortress."(67) This fear of crime permeates all social strata. While the wealthy can move into one of the thousands of new suburban fortresses, those unable to leave their community -- and most likely to be crime victims -- are creating their own "Security Zone Communities":(68)

Middle class homeowners are also forting up, fearful of high crime rates in

nearby neighborhoods or simply afraid that the demographic change and

growing violence they see around them could one day be at their doors....

....

In Los Angeles, dozens of neighborhoods, Black, Anglo, and Latino, rich,

poor, and middle class, have petitioned the city to privatize their streets since

the 1992 riots, and about a half dozen did so.(69)

Similar forting up has occurred in public housing and working class city neighborhoods, where the fear of drug dealing, vandalism, and drive-by shootings encouraged residents to petition city governments for these drastic measures.(70) Accompanying the iron gates and high-tech security devices in all these communities are private security guards, who "take on a previously national government role: Border security and defense."(71)

III. The Private Police(72)

A. Their Proliferation

Although Allan Pinkerton's security business protected Abraham Lincoln before the creation of the United States Secret Service,(73) the dramatic increase in private security forces coincided with the influx of gated communities in the 1980s.(74) As mentioned earlier, there are roughly 1.6 million security guards today,(75) and that total will increase to 1.9 million by the decades end.(76) In 1993, the American public spent $64.5 billion on private security,(77) and the Department of Justice estimates that this amount will leap to $104 billion by the year 2000.(78) Our nation spends roughly 73% more on private security than it does on the public police.(79)

Many cities and towns have hired private security firms to augment their normal police services.(80) For example, several Los Angeles suburbs have hired Westec Security to patrol their neighborhoods around the clock.(81) Merchants from New York to San Francisco have lobbied for a special tax to fund a private security force.(82) In fact, Grand Central Station has its own private police force, the "Grand Central Partnership."(83)

Some towns have gone a step further. Sussex, New Jersey, replaced its police force with private security guards after a drug scandal.(84) East Hills, New York, did the same in the mid-1980s, hiring thirty uniformed private guards to supplant sworn police officers.(85) This proliferation of private security is hardly a passing fancy. As long as people fear crime, private security will continue to play a major, if not the preeminent, role in neighborhood protection.

B. Their Powers

The law treats private security forces as private persons when it comes to their powers to arrest, interrogate suspects, and perform other police activities. For example, the California Legislature contends that "armed security guards should not be required to meet the same rigor of standards required of peace officers."(86) Technically, security guards should only "observe and report" suspicious activity.(87) Yet all private citizens may perform "citizens' arrests" on those that they suspect of criminal activity. In California, section 837 of the California Penal Code states:

A private person may arrest another:

1. For a public offense committed or attempted in his presence.

2. When the person arrested has committed a felony, although not in his

presence.

3. When a felony has been in fact committed, and he has reasonable cause

for believing the person arrested to have committed it.(88)

Many commentators argue that such open-ended definitions of citizens' arrests enable private security guards to "do just about everything a city cop can For example, section 844 of the California Penal Code provides that private citizens may break down the door of a home in pursuit of a suspected felon.(90) In limited circumstances, guards may detain and interrogate suspected felons(91) and carry concealed weapons.(92)

Although some states, like California, perform background checks on security guards(93) and require them to attend classes on their power to arrest,(94) at least eleven states have no regulations on security guards.(95) Despite these standards, many overzealous security guards often forget or ignore their training. A retired detective who oversees seven guards of the Grand Central Partnership acknowledges that his charges are "loaded with enthusiasm, and they would want to do more than private citizens can do."(96) One security guard admitted that "[y]ou've got a lot of guards out there who think they're police officers. Because they got a gun, they want to play hero."(97) Although the law may consider them private citizens, their badges, patrol cars, guns, and power often blur the line between private and public citizens. This distinction will become even less clear as the number of guards and gated communities continues to increase.

C. Their Purpose

Private security firms, their guards, and their clients send mixed messages as to the exact purpose of the private police.(98) Of course, security guards protect their clients' lives and property against unwanted intruders. Yet how far they should take their protective mission is unclear. The firms often claim that " [olur job is public relations and protection of clients, not law enforcement."(99) Westec argues that "[w]e're a business, not a law enforcement agency."(100) At most, the firms officially will admit that they serve as the "eyes and ears" of the police, but no more.(101) Protection of property, not the apprehension of criminals, is their advertised goal.

Yet the firms also promote themselves as the solution to overburdened police departments with extremely slow response times. According to Jon Cobb, a vice president of Westec: "There's no question, especially in certain areas of Los Angeles County, that the police are overburdened and can't always respond as quickly as people would like."(102) An owner of a private security firm admits that "private security is taking on a bigger role, doing a lot of things cops used to do."(103) A vice president of Blue Shield Protection Services boasts that "[w]e're like a small-town constable."(104) Gerard Panza of the Grand Central Partnership claims that the police department "appreciate[s] our work because we try to solve some problems ourselves, without police intervention."(105) Another Grand Central Partnership official, William O'Connor, proclaims, " [t]hat's the reason we're here: We do the work the police have trouble getting to because they're so busy."(106) In other words, these security guards "spend their days doing what New York's police department no longer has time to do: walking a beat."(107) These guards do more than shoo away transients or protect private property. Westec guards in Los Angeles neighborhoods "routinely ask outsiders to explain their presence or to leave."(108) According to Richard Dillon, security chief of the Grand Central Partnership, "[o]ur guys chase [criminals] five or ten blocks"(109) to make an arrest. For example, in July 1994, Westec apprehended fifteen suspects.(110) A 1985 Department of Justice study predicted this trend toward privatization: "Despite the expanded role of the police in crime prevention in recent years, it appears that the private sector will bear an increased prevention role while law enforcement concentrates more heavily on violent crime and crime response."(111) Security forces often are more than the "eyes and ears" of the police. They act as an extra set of hands and feet as well.

Many police officers and crime experts urge private security forces and police departments to collaborate in fighting crime. William Cunningham, the author of a National Institute of Justice report on private security, urges the police and private security firms to work together: "The debate is not whether private security is good or bad,(112) but how we can more effectively administer crime prevention programs by having public and private agencies work together."(113) The Los Angeles Police Department openly supports "private-sector solutions to the city's crime problem,"(114) and the Grand Central Partnership acts as "ambassadors to the city's police."(115) Cops often trade information on suspects with private security guards.(116) As city budgets are stretched even further, underfunded and desperate police forces will continue to turn to private security for assistance. Georgette Bennett, a New York criminologist, contends, "[w]e're going to see a growing number of partnerships between police and private security companies."(117)

The customers of private security firms also believe that these "square badges"(118) have replaced the police. The slow -- or nonexistent -- response of city police compels citizens to look elsewhere for their defense.(119) Richard Titus of the National Institute of Justice, the research division of the Department of Justice, explains, "[tlhere is this sense in the general public that the criminal justice system is just overwhelmed and you cannot rely on it. So we have to do it privately."(120) Private citizens around the country agree with Mr. Titus. A jewelry store owner in the Grand Central Partnership zone claims: "I haven't seen a uniformed policeman around here in years. [Without a private police force,] it's like a jungle out there."(121) A homeowner in Oakland, California, laments, "[w]e don't see police cars coming through here very often. Now there is at least a pseudo police presence."(122)

Clearly, modern security forces do more than protect their clients' property. Through their own eyes and those of crimilogists, police officers, and private citizens, companies like Westec are assuming a police-like role. As more of America becomes gated and protected by private firms in the twenty-first century, the "pseudo police" will assume even more functions that were traditionally performed by state police officials. This blurring between public and private policing probably will protect our citizenry, but also may eviscerate the Fourth Amendment.

IV. Burdeau v. McDowell: A Case on Trial

A. Introduction

Current Supreme Court jurisprudence allows the government to use evidence that a private party obtained by breaking into one's home, hacking one's computer system, or any other illegal method, so long as the state did not "sponsor" or directly encourage such actions. Burdeau v. McDowell(123) serves as the cornerstone for this law, and it continues to spawn endless variations of the same theme: The Fourth Amendment does not apply to private party searches. The Court could extend the Fourth Amendment to gated communities if it overturns Burdeau, thereby dissolving its public/private distinction. This Part examines Burdeau to determine its current vitality.

B. The Facts and Procedural History

The management of Henry L. Doherty Co., a New York holding company, fired J.C. McDowell because they suspected that he was defrauding them.(124) Not yet satisfied, they sent agents to break into his private office in pittsburgh.(125) The agents rifled through McDowell's desk and blew open both of the safes in his office.(126) Their actions revealed many incriminating papers, which they forwarded to Joseph A. Burdeau, a special assistant to the Attorney General of the United States.(127)

Burdeau planned to charge McDowell with mail fraud, so McDowell sued in the Western District of Pennsylvania for the return of his private papers.(128) He alleged that the agents' search and seizure violated his Fourth Amendment rights.(129) The district judge agreed, holding that "there had been a gross violation of the Fourth ... Amendment[] to the federal Constitution."(130) The Department of Justice appealed.

C. The Holding

In a seven-to-two decision written by Justice Day, the United States Supreme Court reversed the District Court and allowed the Department of Justice to use McDowell's private letters in a criminal prosecution, despite their questionable acquisition.(131) The Court cited a series of contemporary cases for support,(132) then concluded,

[t]he Fourth Amendment gives protection against unlawful searches and

seizures, and as shown in the previous cases, its protection applies to

governmental action. Its origin and history clearly show that it was intended

as a restraint upon the activities of sovereign authority, and was not

intended to be a limitation upon other than governmental agencies....

....

... It is manifest that there was no invasion of the security afforded by

the Fourth Amendment against unreasonable search and seizure, as whatever

wrong was done was the act of individuals in taking the property of

another.(133)

In other words, since the government did not participate in or compel the initial seizure of the papers, the agents' actions did not involve the Fourth Amendment, which the Framers created solely to prevent unreasonable governmental seizures.

D. The Dissent

As in many First Amendment cases during this era,(134) Justices Holmes and Brandeis dissented from the Court's opinion. Justice Brandeis, writing for the two dissenters, expressed his incredulity at the majority's result:

I cannot believe that action of a public official is necessarily lawful,

because it

does not violate constitutional prohibitions and because the same result

might

have been attained by other and proper means.... Respect for law will not be

advanced by resort, in its enforcement, to means which shock the common

man's sense of decency and fair play.(135)

In other words, the Court should not have endorsed such reprehensible behavior by admitting the illegally obtained evidence.(136) Yet the Court ignored Justice Brandeis' lamentations and allowed the prosecution of McDowell to continue. Apparently for Justice Day and the majority, the ends justified the means.

E. The Support

The majority cited many contemporary cases to support its holding that the Fourth Amendment only applied to governmental searches and seizures. A brief review of the cases illustrates their questionable support for the public/private distinction under the Fourth Amendment.(137)

1. Boyd v. United States(138)

In an opinion by Justice Bradley, the Court held that the Fourth and Fifth Amendments combined to prevent the production of an incriminating invoice.(139) The Court also touched on die scope of the Fourth Amendment. Justice Bradley cited Lord Camden's famous declaration of the sanctity of one's home: "[E]very invasion of private property, be it ever so minute, is a trespass. No man can set his foot upon my ground without license...."(140) Camden said that "no man" could trespass on his property, not that "no agent of the King" or other government official could enter his home without his permission. Similarly, in Boyd, Justice Bradley warned against the subtle yet devastating evisceration of crucial rights:

Illegitimate and unconstitutional practices get their first footing in

that way,

namely, by silent approaches and slight deviations from legal modes of

procedure. This can only be obviated by adhering to the rule that

constitutional

provisions for the security of person and property should be liberally

construed.... It is the duty of courts to be watchful for the

constitutional rights of

the citizen, and against any stealthy encroachments thereon.(141)

These two passages from Justice Bradley's opinion hardly support Burdeau's private/public distinction. Rather, they warn against "slight deviations," or exceptions, which may swallow up the amendment entirely.

Yet some language in Boyd does support Justice Day's opinion in Burdeau. When Justice Bradley explained the implications of the Court's holding, he apparently limited it to governmental invasions: "The principles laid down in this opinion affect the very essence of constitutional liberty and security.... [Tlhey apply to all invasions on the part of the government and its employees of the sanctity of a man's home and the privacies of life."(142) Of course, Boyd dealt with the government's illegal seizure of an invoice for plate glass, so Justice Bradley might naturally confine the holding to governmental activity. Yet Justice Bradley's limitation neutralizes much of the momentum gained by his "liberally construing" dictum and references to Lord Camden. Boyd's conflicting messages provide little guidance to those attempting to evaluate the Burdeau holding.

2. Adams v. New York(143)

In Adams, the Court upheld a New York law penalizing the possession of gambling paraphernalia. When examining the Fourth Amendment issues, Justice Day reviewed the holding of Boyd and wrote for the Court:

The security intended to be guaranteed by the 4th Amendment against

wrongful search and seizures is designed to prevent violations of private

security in person and property and unlawful invasion of the sanctity of the

home of the citizen by officers of the law, acting under legislative or judicial

sanction, and to give remedy against such usurpations when attempted.(144) Like

Justice Bradley in Boyd, Justice Day limited the scope of the Fourth

Amendment to governmental acts, which was perhaps a precursor to his Burdeau

opinion. Again, Adams involved a governmental seizure, so Justice Day may

have limited his holding to the facts. Yet Adams lacks the "liberally construed"

language of Boyd. Combining this absence with Justice Day's authoring of

both the Burdeau and Adams opinions allows one to conclude that Adams

generally supports the Burdeau public/private distinction.

3. Weeks v. United States(145)

In another opinion by Justice Day, the Supreme Court held that courts must exclude evidence that federal officials obtained illegally. Citing Adams, the Court examined the scope of the Fourth Amendment:

As to the papers and property seized by the policemen, it does not appear

that

they acted under any claim of Federal authority such as would make the

amendment applicable to such unauthorized seizures.... What remedies the

defendant may have against them we need not inquire, as the 4th Amendment

is not directed to individual misconduct of such officials. Its

limitations reach

the Federal government and its agencies.(146)

Weeks provides the strongest support for Burdeau's public/private distinction. The Court held that the exclusionary rule only applied to the actions of federal, and not state, agents. While this federal/state distinction no longer holds,(147) it demonstrates how limited Justice Day believed the Fourth Amendment to be. If the Court refused to apply the exclusionary rule to the illegal actions of state officials, then it would not extend the Fourth Amendment to private searches.

4. Silverthorne Lumber Co. v. United States(148)

In an opinion by Justice Holmes, a dissenter in Burdeau, the Court in Silverthorne held that the government could not illegally seize evidence and then subpoena witnesses and other "fruits" learned from such actions.(149) In making this decision, Justice Holmes wrote that "[t]he essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all."(150) Such language, although tailored to the facts at issue, suggests that the Fourth Amendment protects a defendant against all fruits of an illegal search. This general concept conflicts with the public/private distinction of Burdeau, which allows the government to benefit from an illegal/private search. Silverthorne differs from Burdeau in that government agents, and not private persons, committed the illegal seizure, but both cases deal with the government benefitting from the fruits of an earlier illegal search. Nothing in the opinion supports the public/private distinction.

5. Gouled v. United States(151)

An opinion by Justice Clarke, Gouled provides opponents of Burdeau with their best ammunition. After the Court reminded the reader of the Fourth Amendment's importance and the need to "prevent stealthy encroachment upon ... the rights secured by [it],"(152) the Court created a broad scope for the Fourth Amendment:

The prohibition of the Fourth Amendment is against all unreasonable

searches and seizures ....

[W]hether entrance to the home or office of a person suspected of a crime be

obtained by a representative of any branch or subdivision of the

government of

the United States by stealth, or through social acquaintance, or in the

guises of

a business call, and whether die owner be present or not when he enters, any

search and seizure subsequently and secretly made in his absence, falls

within

the scope of the prohibition of the Fourth Amendment ....(153)

The Court referred only to "representative[s] ... of the government," but one must read this reference in context. The first sentence spoke of all unreasonable searches and seizures, not just those committed by the government. Also, Gouled dealt with the governmental seizure of incriminating papers, so the Court had no need to discuss the actions of private persons, since none were involved in this case. If the Court wished to limit its holding to governmental actions, then it would have omitted the "all unreasonable" language.

F. The Judgment

One can plausibly argue that the Court should overturn Burdeau for several reasons. First, we base much of our modern case law, like our First Amendment jurisprudence, not on the majority opinions during this period but on the joint dissents of Justice Brandeis and Justice Holmes. For example, the current Brandenburg v. Ohio(154) incitement test for the First Amendment combines the Gitlow(155) dissent and Whitney v. California(156) concurrence of Justice Brandeis and Justice Holmes with the Masses Publishing Co. v. Patten(157) test of Judge Learned Hand.(158) Next, the text of the amendment does not single out governmental searches. Rather, it prohibits "unreasonable searches and seizures"(159) public or private. The Framers may have worried about the dreaded writs of assistance and general warrants,(160) but nothing suggests that they confined this fear to the government. Though governmental searches may have been the genesis for the Fourth Amendment, they should not become the amendment's exclusive domain.(161) Some state courts have adopted this reasoning and extended the Fourth Amendment to security guard searches.(162) Finally, the cases that the Burdeau Court cited provide little guidance, if any. Some support the public/private distinction, while others warn against drawing such arbitrary lines that will undermine the amendment.

Despite these arguments, it appears that the Court will never overrule Burdeau. Even if one accepts all of the contentions in the preceding paragraph, the doctrine of stare decisis may dictate adherence to the current rule.(163) For seventy-five years, the Court has upheld Burdeau and has extended the admissibility of privately gathered evidence. For example, in United States v. Jacobsen,(164) the Court held that cocaine found in a package initially opened by a Federal Express employee and then turned over to a government agent was still admissible, even though the agent did not obtain a warrant before he reopened the package.(165)

The Court also has rejected the circuit courts'attempts to lessen Burdeau's blow. Again in Jacobsen, the Court rejected the two-tier test of United States v. Kelly,(166) which held that while a private search may not invalidate the evidence, the government's subsequent search was subject to the Fourth Amendment.(167) Overturning Burdeau would not only ignore stare decisis, but it also would radically alter current law enforcement procedures, which is very unlikely considering the Court's recent acquiescence to law enforcement efforts to win the drug war.(168) Even if its foundation is unclear, Burdeau's public/private distinction remains a centerpiece of American criminal procedure. As overturning Burdeau may prove too great a task, an application of the Fourth Amendment to gated communities requires a much narrower holding.

V. The Marsh v. Alabama(169) "If it Quacks Like a Duck..." Test

A. The Case

Like many First Amendment plaintiffs of the 1940s,(170) Grace Marsh was a devout Jehovah's Witness who wished to spread the Word. She visited Chickasaw, a suburb of Mobile, Alabama, to convert the locals.(171) "[Chickasawl ha[d] all the characteristics of any other American town. [Chickasaw] consist[ed] of residential buildings, streets, a system of sewers, a sewage disposal plan, and a `business block.'"(172) Yet Chickasaw was no "normal" town. The Gulf Shipbuilding Corporation owned Chickasaw -- everything from the stores to the streets. Gulf paid the "sheriff," a deputy from Mobile County, to ward off "trespassers."(173)

In front of a sign discouraging solicitors,(174) Ms. Marsh distributed religious leaflets on a company-owned sidewalk, near the company-owned building where the United States leased a post office.(175) The "sheriff" approached and warned her that without a permit, she could not preach or pass along the Word.(176) She persisted, so the "sheriff" arrested her pursuant to an Alabama trespass law.(177) Ms. Marsh protested that the arrest "abridge[d] her right to freedom of press and religion contrary to the First and Fourteenth Amendments to the Constitution."(178) The Alabama Court of Appeals disagreed with Ms. Marsh, and the Alabama Supreme Court declined to hear her case.(179)

In a stunning opinion, the United States Supreme Court reversed the Alabama Court of Appeals. Writing for the majority, Justice Black carefully examined the characteristics of the town and concluded that "[tlhere [was] nothing to distinguish [Chickasaw and its shopping district] from any other town and shopping center."(180) He continued: "Ownership does not mean absolute dominion.... Thus, the owners of privately held bridges, ferries, turnpikes and railroads may not operate them as freely as a farmer does his farm. Since ... their operation is essentially a public function, it is subject to state regulation."(181) Although Gulf did retain a property interest in Chickasaw, Marsh's First Amendment rights "occup[ied] a preferred position."(182) Justice Frankfurter wrote separately to indicate the importance of fundamental rights, no matter whose land on which one stood:

[A] company-owned town is a town. In its community aspects it does not differ

from other towns.... Title to property as defined by State law controls

property relations; it cannot control issues of civil liberties which arise

precisely because a company town is a town as well as a congeries of property

relations. And similarly the technical distinctions on which a finding of

`trespass' so often depends are too tenuous to control decision regarding the

scope of the vital liberties guaranteed by the Constitution.(183) According to the majority, and especially Frankfurter's concurrence, if it looked like a town, felt like a town, and sounded like a town, then it was a town as far as the Bill of Rights was concerned.

B. The Argument

The quoted language of Marsh provides much ammunition for extending the Fourth Amendment to gated communities. If "a company town is a town," then many gated communities qualify as towns governed by the Fourth Amendment, itself a "vital libert[y] guaranteed by the Constitution."(184) Recall the mammoth communities of Silver Creek, which houses a public school inside its Walls,(185) and Las Colinas, a "community" of over 30,000 people, including hotels, fight industry, and commercial developments.(186) As one red estate lawyer describes,

community associations have been operating private systems of roads,

utilities,

parks, open space, and recreational amenities that are indistinguishable from

public facilities run by departments of municipal or county governments. The

functional distinctions. . .are hazy, to say the least.(187)

Commentators also have urged the extension of Marsh to residential associations, the private governments that rule gated communities: "Constitutionalists use the holding in Marsh to argue that the relationship of a resident to the private community and the power residential associations exert over their members justify the removal of the barriers between the private and public spheres."(188)

As America continues to fort up, more, gated communities will provide "town" services: Parks, streets, business districts, and even town squares. Much like Chickasaw, these private communities will become difficult to distinguish from "normal" towns. If "a company-owned town is a town,"(189) the argument goes, then a gated community also is a community.

C. The Judgment

The selections from Marsh appear to mandate that courts must extend basic liberties, like the Fourth Amendment, to private "town-like" gated communities. The Marsh selections, however, are just that: Selections. What they omit is Justice Black's emphasis on accessibility: "The more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional" rights of those who use it."(190) Justice Black also noted that Chickasaw was "accessible to and freely used by the public in general."(191)

Curtis Berger has developed a useful test to determine whether a forum is public or private for First Amendment rights, and his analysis proves useful in applying Marsh to gated communities.(192) He lists the following factors as indicative of private property: Expectation of privacy, expectation of quiet, limited physical access, freedom of association, right of exclusion, exclusivity of possession, and expectation of security.(193) Public properties usually retain the following qualities: Little expectation of privacy, no expectation of quiet, multiple points of entry, restricted freedom of association, privilege of free entry, lack of territoriality, and a reduced expectation of security.(194)

Applying these factors reveals, not surprisingly, that gated communities are private forums despite their many town-like attributes. Residents of walled neighborhoods and cities have strong expectations of privacy and security, and the communities have very limited access -- usually through one of the "James Bond archenemy" descriptions fisted in this Article's Introduction. By design, private communities keep unwanted people out by gates and guards. Therefore, if gated communities qualify under Professor Berger's test as private forums, then they must flunk the Marsh accessibility test. In United States v. Francouer,(195) the Fifth Circuit concluded that the Marsh rationale did not apply to Disney World because it was "not an open town fully accessible and available to all commerce. . . . No one is permitted into the outer gates of Disney World except by consent of the owners."(196)

Although Justice Frankfurter's concurrence ignored "accessibility" and spoke of how "a company-owned town is a town,"(197) it was just that: A concurrence that no one else joined. No matter how hard an advocate tries, she cannot convert a private gated community -- regardless of how much it quacks like a town -- into a town susceptible to the state action doctrine. To extend the Fourth Amendment into gated communities requires a different tact-a focus upon those who defend "Fortress America. "

VI. The Symbiotic Relationship" State Action Theory(198)

A. The Case

In Burton v. Wilmington Parking Authority,(199) the Eagle Coffee Shoppe refused to serve William H. Burton, an African-American male, "solely because he [was] a Negro."(200) Burton sued the Coffee Shoppe for violating his rights under the Equal Protection Clause of the Fourteenth Amendment.(201) The Fourteenth Amendment requires state action, and Burton alleged that the close relationship between the Coffee Shoppe and the Wilmington Parking Authority, the city-owned building that housed the Coffee Shoppe, qualified as such. The Supreme Court of Delaware held that Eagle was "acting in a `purely private capacity'" and rejected Burton's claims.(202)

In an opinion by Justice Clark, the Supreme Court reversed. The majority scrutinized the close relationship between the Coffee Shoppe and the parking structure and noted the city's ownership and maintenance of the complex.(203) The Court then held that Eagle's association with the city-owned parking structure triggered the protections of the Fourteenth Amendment:

The State has so far insinuated itself into a position of interdependence

with

Eagle that it must be recognized as a joint participant in the challenged

activity,

which, on that account, cannot be considered to have been so `purely private'

as to fall without the scope of the Fourteenth Amendment.(204)

Eleven years later, the Court in Moose Lodge No. 107 v. Irvis(205) recast the Burton "position of interdependence" test as the "symbiotic relationship between lessor and lessee" test.(206)

B. The Argument

One could argue that the cozy relationship between many police departments and private security forces qualifies as a "symbiotic" one. If public officers and private guards share information about suspects,(207) design patrol patterns,(208) and generally "work together,"(209) perhaps they pass the Burton-Moose Lodge test. For almost thirty-five years the Court did not recognize such a "symbiotic relationship;" however, it ended that trend in Lebron v. National Railroad Passenger Corp.,(210) where the Court held that Amtrak was "an agency or instrumentality of the United States for the purpose of individual rights guaranteed against the Government by the Constitution."(211) Since experts estimate that these public/ private partnerships will increase in both frequency and intensity,(212) this "symbiotic" relationship may soon exist, if it does not already.

C. The Judgment

Despite evidence that police departments and private security forces increasingly will work together to fight crime,(213) this relationship is probably not "symbiotic" enough to pass the Burton-Moose Lodge test. As the Court in Burton admitted, such inquiries are very fact specific:

[T]he conclusions drawn from the facts and circumstances of this record

are by

no means declared as universal truths on the basis of which every state

leasing

agreement is to be tested. Owing to the very "largeness" of government, a

multitude of relationships might appear to some to fall within the

Amendment's embrace, but that, it must be remembered, can be determined

only in

the framework of the peculiar facts or circumstances present.(214)

Jurisprudence since Burton confirms the validity of this passage.(215) For example, in Blum v. Yaretsky(216) the Court held that state licensing and subsidization of nursing homes, along with state payment of die medical expenses for 90% of the patients,(217) did not create a symbiotic relationship subject to the Fourteenth Amendment.(218) Similarly, in Jackson v. Metropolitan Edison Co.,(219) the Court held that no state action existed even though the utility "was a heavily regulated, privately-owned utility, enjoying at least a partial monopoly in the providing of electrical service within its territory"(220) and followed a state procedure to terminate Catherine Jackson's electric service.(221)

Although the Court concluded that a symbiotic relationship existed in Lebron,(222) one would be hard pressed to find a relationship as "intimate" as that between Amtrak and the government.(223) As Justice O'Connor's dissent illustrates, the question before the Court in Lebron was not the "general nature of the corporation as a private or public entity,"(221) but "the Specific action by Amtrak."(225)

Some commentators explain the result of the "symbiotic cases" by asserting that the Court will conclude that state action exists if it "looks" like State action.(226) In other words, if a reasonable person would think that the private actor is actually a state actor, then a symbiotic relationship exists. This rationale explains the results of Burton, Lebron, and the other cases. The reasonable person probably would believe that a coffee shop in a public parking structure was somehow controlled by the state. The same goes for Amtrak, an obviously subsidized and government-controlled entity with no real private competition. In contrast, a private nursing home and a private school are, by appearances, not state actors. The elderly can visit a state hospital, and children can attend public school. These two private entities do not appear, at least on the surface, to be public entities.

Assuming that the Court uses the "appearance" or "symbiotic relationship" test, then the partnerships between the police and private security guards protecting gated communities probably would not qualify as state action. Though the police and private security forces may share secrets and collaborate in setting up patrols, the reasonable person would not think that the "square badges" were the same as the police. Unless the security guards began driving "black and whites" and conducting raids with police officers, the reasonable person would distinguish the two forces. Planning may equal a public relations "partnership," but it does not equal a "symbiotic" relationship as dictated by Burton and its progeny.

VIII. Private Police -- A Public Function?

A. The Case: Jackson v. Metropolitan Edison Co.(227)

Metropolitan Edison (Met-Ed) terminated Catherine Jackson's electric service because she failed to pay her bills on time,(228) but did not provide Jackson with "notice, a hearing, and an opportunity to pay any amounts due."(229) She filed a section 1983 suit, claiming that the discontinuation of her electric power, violated her Fourteenth Amendment right to due process of law. The district court rejected her claim because the termination of electric service lacked the requisite "state action." The Third Circuit affirmed, and the Supreme court granted Certiorari.(230)

Writing for the majority, Justice Rehnquist admitted that "question whether particular conduct is `private,' on the one hand, or `state action,' on the other, frequently admits of no easy answer."(231) To clarify the murky doctrine,(232) he characterized this version of the "state action" test as whether a private entity exercised "powers traditionally and exclusively reserved to the state.(233) Though Met-Ed was a government regulated monopoly, it did not perform such a "traditional and exclusive" function, and thus failed the new standard.(234)

B. The Argument

Although the Jackson state action hurdle is a high one, the special role that the police play should clear it. Laurence Tribe describes the "traditional and exclusive" test:

There must exist a category of responsibilities regarded at any given time

as so

"public" or "governmental" that their discharge by private persons, pursuant

to state authorization even though not necessarily in accord with state]

direction, is subject to the federal constitutional norms that would apply

to public

officials discharging those same responsibilities.(235)

In other words, state action can exist when a private party performs a public function, even if the private party acts without any government influence.

While providing electricity to homes might not be a traditional state function, American police departments have exercised the power of the state to protect its citizenry for one hundred and fifty years. Although the use of tradition often confuses the issue,(236) history speaks clearly on the role of police departments in the United States. In 1845, Philadelphia created the first modern American police department(237) and Boston soon followed in 1854.(238) By 1857, New Orleans, Cincinnati, Chicago, and Baltimore all had their own public forces.(239) If this long history does not establish police departments as a traditional state function, then nothing will.

The special powers of the police also are exclusive to the state. For example, the Fourth and Fourteenth Amendments allow the state to search one's home with a warrant. A private person cannot obtain a warrant and enter someone's home without the resident's consent, nor can he briefly detain and pat down a suspicious person for weapons.(240) As Lawrence Friedman suggests, "[o]ur criminal justice system -- maybe every criminal justice system -- includes an aspect that is downright oppressive. Criminal justice is, literally, state power."(241)

C. The Judgment

From the outset, the traditional and exclusive test is difficult to pass. Even the Court has said that "[w]hile many functions have been traditionally performed by governments, very few have been `exclusively reserved to the State.'"(242) The Court's decisions confirm that statement by holding that no traditional and exclusive state function exists in such seemingly traditional areas as nursing home care(243) and education.(244) The only functions that have passed the public function test are the administration of elections for public officials(245) and the management of a city park,(246) and the Court decided those cases before Justice Rehnquist's formulation in Jackson.

Yet some Supreme Court opinions have indicated that private police forces pass the traditional and exclusive test. In Flagg Brothers v. Brooks,(247) a dissenting Justice Stevens cited Griffin v. Maryland(248) and wrote: [I]t is clear that the maintenance of a police force is a unique sovereign function, and the delegation of police power to a private party will entail state action."(249) Justice Rehnquist, writing for the majority, responded that "Griffin ... sheds no light on the constitutional status of private police forces, and we express no opinion here."(250) Flagg Brothers may not establish that private police forces equal state actors, but it does illustrate Justice Stevens' view. Although Justice Rehnquist did not endorse Justice Stevens' opinion on the status of private police forces, he did not disagree with it either.

The lower courts have split on applying the traditional and exclusive test to private police forces. In United States v. Garlock,(251) Judge Gibson rejected this application of the public function theory, writing that "the mere fact that an individual's job involves the investigation of crime does not transform him into a government actor."(252) The District of Columbia Court of Appeals came to a similar conclusion in United States v. Lima:(253) "We reject the contention that application of the Fourth Amendment can be resolved by looking at the nature of the activities performed by security employees."(254) Yet several courts have spoken otherwise, such as the Court of Appeals in New Mexico: "In many instances ... private security police serve a public purpose. When they perform a public function or act as agents of a government investigation, their activities may therefore become state action for constitutional purposes.(255) A New York court also recognized the role that private police play today: "[G]iven the proliferation in this country of privately-employed security personnel as a supplement to or, as in this case, a replacement for local law enforcement authorities, the privacy rights of a citizen of this State may be increasingly jeopardized."(256) Dissenting judges in both Lima(257) and Minnesota v. Buswell(258) came the to the same conclusion.

Garlock correctly concludes that if private guards perform private responsibilities, such as patrolling a client's store or feeding his pets, their actions do not implicate the Fourth Amendment. But as private guards continue to act as police -- pursuing suspects,(259) inspecting public bus passengers that enter a gated city,(260) or frisking guests in common areas within gated communities -- they cross the line and perform a public function. Professor LaFave explains why the Fourth Amendment should apply to private guards acting as police:

Where private police actually supplant the public police or deal regularly

with

the general public, particularly if it may be said they are not disinterested

criminal convictions as an aid to the private objectives of their employer,

would be sound as a matter of law and policy to hold those police subject to

the

commands of the Fourth Amendment.(261)

The line separating police work from private security work often will be a blurry one. Yet, this occasional ambiguity should not allow private guards to act as police without Fourth Amendment restrictions.

As security firm executives, guards, and clients attest,(262) private security forces often act as police officers. While schools and nursing homes historically may not have been the exclusive function of the state, police departments clearly are, because until today, no private organization exercised: investigative and patroling responsibilities.(263) Though "very few [state functions] have been `exclusively reserved to the State,'"(264) if private forces effectively replace the police in many gated communities, a traditional and exclusive role of the state, they are state actors under Jackson. The police exemplify the very essence of state power, and if private security forces now assume this role, they become a part of the state itself.

VIII. Conclusion

The twenty-first century American dream will be a nice house with a dog behind a white picket electrified fence with guard towers. The friendly police officer walking her beat will be Westec Security Officer Jones, and your neighbor will run for residential association president. To some, this sterile "Westec Story" may appear ridiculous, but it is reality for more than four million Americans today, and increasingly will become so in the future.

This seemingly harmless setting threatens one of our most basic rights: The Fourth Amendment. To secure their community, private police forces increasingly will adopt invasive measures to ensure no "undesirables" enter. Interrogation, pat downs, and other intrusive actions normally reserved for the police will become weapons in the security officer's arsenal. America continues to fort up, and even nonresidents will be unable to avoid interacting with these gated communities.

In McCulloch v. Maryland,(265) John Marshall reminded his brethren that "we must never forget, that it is a constitution we are expounding."(266) And as what constitutes the landscape of America changes, so must our understanding of who polices its streets and neighborhoods. Though the Fourth Amendment may not apply directly to Fortress America, it must be extend to its soldiers, those acting as the new police for these gated communities. Otherwise, the modern, unfettered private security forces will "reduce[] the Fourth Amendment to a form of words."(267)

(1.) Edward J. Blakely & Mary Gail, Snyder, Fortress America: Gated and Walled Communities in the United Stales 5 (Lincoln Institute of Land Policy No. WP95EB1, 1995) [hereinafter Blakely-Snyder Report] (on file with the author).

(2.) The Blakely-Snyder Report defines gated communities as "those intentionally designed security communities with designated and landscaped perimeters, usually walls or fences, that are designed to prevent penetration by nonresidents." Blakely-Snyder Report, supra note 1, at 2.

(3.) Timothy Egan, many Seek Security in Private Communities, N.Y. Times, Sept.3, 1995, at A1.

(4.) See infra note 41 and accompanying text.

(5.) See infra notes 65-71 and accompanying text.

(6.) [Gated communities] are formed nearly everywhere in the country ... in Oregon, Washington, Iowa, Minnesota, Wisconsin, Arkansas, Massachusetts, Hawaii, Kansas, the DC metropolitan area, Missouri, Michigan and Nevada. Few have been founder in the deep South, and none in New England outside Massachusetts. They remain rarities in the Midwest except around large cities like Chicago, St. Louis and Detroit.

Blakely-Snyder Report, supra note 1, at 5.

(7.) Lucy Soto, Suburban Fortresses: Gated Communities Are Going Up, Keeping Out, Atlanta J. & Const., Sept. 17, 1995, at F4 (quoting Oscar Newman, president of the Institute for Community Design Analysis).

(8.) Blakely-Snyder Report, supra note 1, at 1.

(9.) Id. at 2.

(10.) Ronald L. Soble, Private Firms on Patrol. Security is Big Business, L.A. Times, May 21, 1985, at [section] 1, 1.

(11). Peter Fimrite, Private Security Business Booms, S.F. Chron., Dec. 8, 1994, at Al (citing a study of the National Institute of Justice).

(12.) Gage Harter, Cop and Microchip Coexist in a Booming Industry: Security, Bus. Wkly., Aug. 1, 1994, at 8 (citing Hallcrest Report, a 1990 analysis of security trends).

(13.) Charles Oliver, Private Sector Crime Control: More Firms, States Think Government Efforts Wanting, Inv. Bus. Daily, May 12, 1994, at 1.

(14.) See infra notes 86-95 and accompanying text.

(15.) See infra notes 102-111 and accompanying text.

(16.) See, e. g., Tucker Carlson, Safely Inc.: Private Cops Are There When You Need Them, 73 Heritage Pol'y Rev. 66 (1995)

(The ... guards look strikingly like New York City cops. The resemblance is deliberate. Says Panza, `We want people to drink from a distance that it may be a police officer. That is a deterrent. By the time they ascertain that the guy is not a police officer, maybe the opportunity to commit the crime has disappeared.')

(quoting Gerard Panza, head of the Grand Central Partnership security force).

(17.) Blakely-Snyder Report, supra note 1, at 3.

(18.) The Fourth Amendment provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

U.S. Const. amend. IV.

(19.) 256 U.S. 465 (1921).

(20.) Id. at 475.

(21.) See, e.g., United States v. Jacobsen, 466 U.S. 109, 113 (1984) ("This Court has also consistently construed [Fourth Amendment] protection as proscribing only governmental action."); Walter v. United States, 447 U.S. 649, 656 (1980) ("It has, of course, been settled since Burdeau v. McDowell ... that a wrongful search or seizure conducted by a private party does not violate the Fourth Amendment and that such private wrongdoing does not deprive the government of the right to use evidence that it has acquired lawfully."); Coolidge v. New Hampshire, 403 U.S. 443, 487 (1971)

("But it is no part of the policy underlying the Fourth and Fourteenth Amendments to discourage citizens from aiding to the utmost of their ability in the apprehension of criminals. If, then, the exclusionary rule is properly applicable to the evidence taken from the Coolidge house on the night of February 2, it must be upon the basis that some type of unconstitutional police conduct occurred."); cf. Colorado v. Connelly, 479 U.S. 157, 166 (1986) ("The most outrageous behavior by a private party seeking to secure evidence against a defendant does not make that evidence inadmissible under the Due Process Clause.").

(22.) Coolidge, 403 U.S. at 487.

(23.) Jacobsen, 466 U.S. at 111 (discussing a Federal Express employee who opened a package containing contraband).

(24.) Walter, 447 U.S. at 651-52 (discussing private employees who examined male pornographic films sent to wrong address).

(25.) Burdeau v. McDowell, 256 U.S. 465, 470-71 (1921) (discussing private employees who hired agents to break into an ex-employee's office, rifle through his desk and blow open his safe.).

(26.) See infra note 153 and accompanying text.

(27.) See infra notes 251-258 and accompanying text.

(28.) See Flagg Bros., Inc. v. Brooks, 436 U.S. 149,163 n.14 (1978) ("[T]his Court has never considered the private exercise of traditional police functions."); see also Collins v. Womancare, 878 F.2d 1145, 1150 (9th Cir. 1989)

([T]he [Flagg Brothers] majority had in mind the scenario not of an isolated citizen's arrest, but rather of a municipality or state's delegation of its entire police power to a private police force. Flagg Brothers therefore provides no guidance on whether a citizen's arrest constitutes state action or action under color of state law. Indeed Flagg Brothers demonstrates that the Court 'has never considered die private exercise of traditional police functions.') (quoting Flagg, 436 U.S. at 163 n.14).

(29.) 256 U.S.465 (1921).

(30.) The Supreme Court has admitted that "[wlhile the principle that private action is immune from the restrictions of the Fourteenth Amendment is well established and easily stated, the question whether particular conduct is `private,' on the one hand, or `state action,' on the other frequently admits of no easy answer." Jackson v. Metropolitan Edison Co., 419 U.S. 345, 349-50 (1974); see also Lebron v. National R.R. Passenger Corp., 115 S.Ct. 961, 964 (1995) (O'Connor, J., dissenting) ("It is fair to say that `our cases deciding when private action might be deemed that of the state have not been a model of consistency.' ") (citations omitted).

(31.) 326 U.S. 501, 510-11 (1946).

(32.) 365 U.S. 715, 725 (1961).

(33.) 407 U.S. 163, 175 (1972).

(34.) 419 U.S. 345, 352 (1974).

(35.) Since "scholarly work on gated communities is essentially non-existent," Blakely-Snyder Report, supra note 1, at 3, much of this section relies upon the Blakely-Snyder Report.

(36.) Id at 3.

(37.) Id. at 2-3.

(38.) Id at 2.

(39.) For example,

in 1988, one-third of the 140 projects in development in Orange County, California were gated, compared to only 15 percent in 1983.... On Long Island, gated communities were rare just 10 years ago but are now becoming common, with a gatehouse included in almost every condominium development over 50 units. Id. at 5.

(40.) The Blakely-Snyder Report uses "forting up" to describe the "dramatic manifestation of the fortress mentality growing in America." Id at 17.

(41.) Id. at 14, 15, 16. The report continues: "It is estimated that one-third of the communities developed with gates are luxury developments for the upper and upper-middle class, and over one-third are retirement-oriented. The remainder are mostly for the middle-class, with some working-class communities." Id at 5. A recent newspaper article detailing the evolution of gated communities in Atlanta summed up the diverse groups that are forting up:

The cream of die sports, business and entertainment worlds has long paid top dollar for the refuge found behind locked gates and high walls. But fame and a fat wallet are quickly disappearing as requirements for membership in the club. ....

Walled-off enclaves affordable to the less-than-fabulously-wealthy are beginning to blossom in the suburbs of metro Atlanta, sealing off residents who share similar circles and earning power, a passion for privacy and a fear of crime.

Soto, supra note 7, at F4.

(42.) Blakely-Snyder Report, Supra note 1, at 5.

(43.) Id. at 5.

(44.) This analysis primarily applies to that "suburban fortresses" that adopt their own private governments. Many inner-city neighborhoods, however, may adopt similar regulations in the future.

(45.) Blakely-Snyder Report, supra note 1, at 2.

(46.) Id. at 19.

(47.) Id. at 23.

(48.) Id. At one time, the Supreme Court treated privately owned malls as "town squares," guaranteeing basic rights against the property rights of the owner, Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, Inc., 391 U.S. 308 (1968), but the Court later overturned that decision in Hudgens v. NLRB, 424 U.S. 507 (1975). Nevertheless, state courts can interpret state constitutions to extend constitutional rights to private "town squares." See Pruneyard Shopping Center v. Robins, 447 U.S. 74 (1980).

(49.) Blakely-Snyder Report, supra note 1, at 11.

(50.) Id. at 21. Three of the incorporated towns, Hidden Hills, Rolling Hills, and Canyon Lake, are in California, while Tiny Golf and Golden Beach are in Florida. Id.

(51.) Many scholars have examined the peculiar phenomenon of private government. See generally Todd Brower, Communities Within the Community: Consent, Constitutionalism, and Other Failures of Legal Theory in Residential Associations, 7 Land Use & Envtl. L. 203 (1992); Robert C. Ellickson, Cities and Homeowner Associations, 130 U. Pa. L. Rev 1519 (1982); Albert A. Foer, Democracy in the New Towns: The Limits of Private Government, 36 U. Chi. L. Rev. 379, 403-07 (1969); Uriel Reichman, Residential Private Governments: An Introductory Survey, 43 U. Chi. L. Rev. 253 (1976); Katharine Rosenberry, The Application of the Federal and State Constitutions to Condominiums, Cooperatives and Planned Developments, 19 Real Prop. Prob. & Tr. J. 1 (1984); Stewart E. Sterk, Freedom from Freedom of Contract. The Enduring Value of Servitude Restrictions, 70 Iowa L. Rev. 615 (1985); James L. Winokur, The Mixed Blessings of Promissory Servitudes. Toward Optimizing Economic Utility, Individual Liberty, and Personal Identity, 1989 Wis. L. Rev. 1 (1989); Note, The Rule of Law in Residential Associations, 99 Harv. L. Rev. 472 (1985) [hereinafter Note, The Rule]. Residential associations control nongated private communities as well. Approximately 32 million people live under some form of private government in the United States. Evan McKenzie, Privatopia: Homeowner Associations and the Rise of Residential Private Government 11 (1994). This Article, however, focuses upon only gated communities.

(52.) For example, one homeowner association censored a member for being "seen parking in circular driveway kissing and doing bad things for over 1 hour." David Willman, Woman Faces Fine for Kissing Her Date, L.A. Times, June 16, 1991, at A3. In Hidden Hills, one of the private incorporated towns, "white picket fences are mandatory." Blakely-Snyder Report, supra note 1, at 22. The "Country Club of the South," a gated community outside of Atlanta, bars all motorcycles from entering the private neighborhood. Soto, supra note 7, at F4. For a humorous (and startling) catalogue of such restrictions, see McKenzie, supra note 5 1, at 15-18. After facing such restrictions, one resident asked, "Who are these little Hitlers making these rules?" Id. at 17.

(53.) "Some associations have attempted to restrict residence to members of a particular spiritual or religious community, and others have enacted rules that control commercial and political speech within their boundaries." Note, The Rule, supra note 51, at 473-74.

(54.) Id. at 475.

(55.) See Shelley v. Kraemer, 334 U.S. 1 (1948) (holding that a racially restrictive covenant violates the Fourteenth Amendment); see also Note, The Rule, supra note 51, at 476-77 (examining federal and state court applications of the Shelley holding).

(56.) See, e.g., Hidden Harbour Estates, Inc. v. Norman, 309 So.2d 180, 182 (Fla. Dist. Ct. App. 1975) ("[T]he test is reasonableness. If a rule is reasonable the association can adopt it; if not, it cannot. It is not necessary that conduct be so offensive as to constitute a nuisance in order to justify regulation thereof.").

(57.) Even if the association's search and seizure rules flunk this weak reasonableness test, any incriminating evidence is still admissible in a criminal prosecution. See infra note 123 and accompanying text. For a defense of this reasonableness test, see Rosenberry, supra note 51, at 30-31 ("[C]ourts, whenever possible, should refuse to apply the body of constitutional law to documents governing common-interest developments and should determine, instead, whether provisions in those documents are reasonable restraints on alienation or satisfy the common-law `rule of reasonableness.'").

(58.) Michael Ratcliffe, A Review [of Privatopia] for URBGEOG (unpublished manuscript, on file with the author). One residential association board member remarked to Mr. Ratcliffe that "[a]ccording to the by-laws, we can do whatever we want." Id.

(59.) See Cohan v. Riverside Park Place Condominium Ass'n, Inc., 333 N.W.2d 574, 576 (Mich. Ct. App. 1983) holding that association board of directors has implied right to inspect interior of condominium units for suspected violations of association rules). Residential agreements can restrict other basic constitutional rights. See, e.g, Laguna Publishing Co. v. Golden Rain Foundation of Laguna Hills, 182 Cal. Rptr. 813 (Cal. Ct. App. 1982) (holding that a residential association can exclude free, nonsolicited newspapers).

(60.) Robert Scheer, Of Saviours and Loans: Charles H. Keating, Jr., Moral Zealot, Made Our Faith in Bankers Seem Obscene, Playboy, Sept. 1990, at 58. In 1995, new developers bought the Estrella property and began constructing a new private community, minus the invasive restrictions. Susan Doerfler, Estrella: Born Again, Ariz. Republic, May 6, 1995, at AH1.

(61.) See Ellickson, supra note 51, at 1526-27 ("The initial members of a homeowners association, by their voluntary acts of joining, unanimously consent to the provisions in the association's original governing documents."). Some scholars argue that these agreements in actuality are rarely "consensual." See Winokur, supra note 51, at 88 ("Although these rights are waivable, the fact that servitudes are rarely comprehended or even read by home purchasers should belie the assertion that the residents have consented to relinquishing their civil rights to free participation in association governance."); see also Note, 77&e Rule, supra note 51, at 478-83 (presenting a thorough examination and critique of this "consensual" theory as applied to private communities).

(62.) See infra text accompanying note 64.

(63.) Blakely-Snyder Report, supra note 1, at 9.

(64.) McKenzie, supra note 51, at 12.

(65.) As one criminologist puts it, "`fear of crime is more devastating and limiting than the actuality of crime.'" Anne Willette, How Crime Is Changing the Look of America: Citizens Can Be a Community or Be Cut Off, USA Today, July 18, 1995, at 1A (quoting Randall Atlas, Miami architect and criminologist): Yet studies suggest that in the nation's largest cities, violent crime rates are decreasing. Id. Nevertheless, these fears, despite reality, fuel the forting up phenomenon.

(66.) Soto, supra note 7, at F4. Yet some commentators suggest that gated communities fail to reach the zero crime level:

Those with experience in the secured-community business concede that they're often selling the perception of security rather than reality. "You're not going to keep out the pros, just the amateurs," said Dick Seimens, who has built roughly a dozen gated neighborhoods in South Florida. In Atlanta, a team of burglars singled out Northside's gated communities over a period of 16 months. Suspects were nabbed early this year, but only after at least 90 homes had been stripped of $1 million in jewelry, cash and silver.

Id.

(67.) Blakely-Snyder Report, supra note 1, at 17.

(68.) The Blakely-Snyder Report uses this term to describe the lower and middle class attempts to fort up. Security Zones are those communities "where fear of crime and outsiders is the foremost motivation for defensive fortifications." Id. at 8.

(69.) Id. at 16, 18.

(70.) Id. at 14-15. Not all low-income communities advocated gates, identification cards, aid security cameras. In Potomac Gardens, a Washington, D.C., housing project, the government installed these measures without the consent of the housing project residents. Although this forting up initially outraged tenants, they eventually supported the new gates after a reduction in drug dealing and vandalism. Id. at 14.

(71.) Id. at 21.

(72.) Although outside the scope of this Article, the privatization of the criminal justice system has extended even to private prisons. See Oliver, supra note 13, at 1.

(73.) Harter, supra note 12, at 8. Pinkerton's service also "hunted crooks, guarded millionaires ... and fathered a whole industry of private police forces." Id For an interesting history of Mr. Pinkerton, we Charles P. Nemeth, Private Security and the Law 1 (1989).

(74.) Again, this growth arose from the great fear of crime. For example, Westec Security in San Diego reported a tripling of business during the "Night Stalker" killing spree during the mid 1980s. Mike Granberry, Fear Is a Good Salesman for S.D. Security Firms, L.A. Times, Oct. 10, 1985, at [sections] 5, 1.

(75.) Fimrite, supra note 11, at A1.

(76.) Harter, supra note 12, at 8.

(77.) Id.

(78.) Willette, supra note 65, at 1A.

(79.) Blakely-Snyder Report, supra note 1, at 17. The cost of the entire criminal justice system, including prisons, etc., is around $100 billion. Oliver, supra note 13, at 1.

(80.) This is not a peculiarly American phenomenon. English towns have begun hiring private firms to augment or even replace the bobbies. See Jason Bennetto, Robocop Moving in on the Bobby's Beat, The Independent, May 17, 1995, at 9 ("Bobbies on the beat are in danger of being replaced by groups of `untrained, bully boys' by the next century ....").

(81.) Fimrite, supra note 11, at A1.

(82.) Id.

(83.) Carlson, supra note 16, at 66. San Francisco merchants also had their own police force, the so-called "specials," who patrolled commercial areas and possessed the "special" police powers of access to a person's criminal history and the ability to issue tickets. City's Private Patrols on Cops' Hit List: Chief Ribera Wants to Eliminate Police Powers of "Specials," S.F. Chron., Oct. 13, 1994, at A2. The city's police commission soon rescinded many of their "special" powers, converting them to regular security guards. Security Specials' Powers Cut: Private Cops Can No Longer Arrest, S.F. Chron, Dec. 1, 1994, at A19.

(84.) Fimrite, supra note 11, at A1. After pressure from police unions, the state forced Sussex to break its contract with the private security firm. Oliver, supra note 13, at 1.

(85.) Carlson, supra note 16, at 66.

(86.) Cal. Penal Code [sections] 7582 Statutory Note (e) (West 1995).

(87.) Soble, supra note 10, at 1 (quoting an anonymous California state spokesperson).

(88.) Cal. Penal Code [sections] 837 (West 1995).

(89.) Nina Munk, Rent-a-cops, Forbes, Oct. 10, 1994, at 104.

(90.) The section reads in full:

To make an arrest, a private person, if the offense is a felony, and in all cases a peace officer, may break open the door or window of the house in which the person to be arrested is, or in which they have reasonable grounds for believing the person to be, after having demanded admittance and explained the purpose for which admittance is desired.

Cal. Penal Code [sections] 844 (West 1995).

(91.) See Cal. Penal Code [sections] 490.5(f)(1) (West 1995)

(A merchant may detain a person for a reasonable time for the purpose of conducting an investigation in a reasonable manner whenever the merchant has probable cause to believe the person to be detained is attempting to unlawfully take or has unlawfully taken merchandise from the merchant's premises.).

This "shopkeeper's" privilege also applies to theaters and libraries.

(92.) See Cal. Penal Code [sub-sections] 12027(3)(e) (West 1995) (authorizing "guards or messengers of common carriers, banks, and other financial institutions while actually employed in and about the shipment, transportation, or delivery of any money, treasure, bullion, bonds, or thing of value within this state" to carry concealed weapons).

(93.) Cal. Penal Code [sections] 7582 (West 1995).

(94.) Cal. Penal Code [sections] 7583.6 (West 1995) ("Every person entering the employ of a licensee to perform the functions of a security guard or a security patrolperson shall complete a course in the exercise of the power to arrest prior to being assigned to a duty location."). The training must be at least two (!) hours, and include the following topics: responsibilities and ethics in citizen arrest relationship with the public police in arrest, limitations on security guard power to arrest, restrictions on searches and seizures, and criminal and civil liabilities. Cal. Penal Code [sections] 7583.7 (West 1995).

(95.) Fimrite, supra note 11. at A1.

(96.) Carlson, supra note 16, at 66.

(97.) Scott Harris, Guns Spell Peril, Not Security, for Private Guards, Experts Say, L.A. Times, Oct. 13, 1985, at [sections] 2, 1 (quoting Eddie Rojo, security guard of Pedus International).

(98.) For example, many cops believe that "guards seem to occupy a confusing gray area between public official and private citizen." Carlson, supra note 16, at 66. Oakland police officer Art Michel thinks "it's kind of a scary trend if we are going to have people out there doing police work when they don't have the training." Fimrite, supra note 11, at A1.

(99.) Carol McGraw, Assaults Tied to Security Guards Prompt Concern, L.A. Times, July 4, 1988, at [sections] 1, 3 (quoting Brian O'Connor, general manager of Bel-Air Patrol). Another example is the brochure of Woodside & Portola Private Patrol in Portola Valley, California. The firm promises to alert the police if an alarm sounds, to check on the home periodically, and even to feed one's pets. It never pledges, however, to interrogate or pursue intruders. Woodside & Portola Private Patrol, Woodside Patrol Security Programs 1 (1995) (on file with the author).

(100.) Soble, supra note 10, at 1.

(101.) See, e.g., Carlson, supra note 16, at 66 (quoting Gerard Panza of the Grand Central Partnership: "We are the eyes and ears of the police department."); Clare Collins, Private Patrol Neighborhoods Willing to Pay for Own Security, Chi. Trib., Oct. 2, 1994, at 10H (quoting Peter J. Buccino, Deputy Commander of the New York Police Department: "[T]he guards become the eyes of the neighborhood."); Fimrite, supra note 11, at A1 (quoting David Opperud, agent supervisor for Bay Alarm: "We we the eyes and ears of the police department.").

(102.) Collins, supra note 101, at 10H.

(103.) Soble, supra note 10, at 1.

(104.) Id. at 21.

(105.) Carlson, supra note 16, at 66.

(106.) Id.

(107.) Id.

(108.) Collins, supra note 101, at 10H.

(109.) Carlson, supra note 16, at 66.

(110.) Munk, supra note 89, at 106.

(111.) Soble, supra note 10, at 1.

(112.) This Article does not intend to degrade the private security industry. Rather, private security can play an important role in crime prevention. This Article does examine, however, when the law should treat these private security guards as state actors subject to the Fourth Amendment.

(113.) Fimrite, supra note 11, at A1.

(114.) Collins, supra note 101, at 10H.

(115.) Carlson, supra note 16, at 66.

(116.) Collins, supra note 101, at 10H.

(117.) Id. at 10H. In New York, residents and community leaders of the neighborhoods from 59th to 96th streets are considering a proposal in which private security guards, funded by public tax money, would openly cooperate with police to patrol the neighborhood. Id.

(118.) Police officers derisively call private security guards "square badges." Carlson, supra note 16, at 66.

(119.) See Fimrite, supra note 11, at A1 ("As city police from lurch from one crisis to another -- and responses to routine calls get slower and slower -- residents are turning to private security firms to patrol their neighborhoods.").

(120.) Willette, supra note 65, at 1A; see also Munk, supra note 89, at 104 ("Unimpressed by the security provided by strapped undermanned and frequently demoralized municipal police forces, frustrated citizens are increasingly turning to the private sector for their protections.").

(121.) Carlson, supra note 16, at 66 (quoting Alan Maleh, New York City jewelry store owner).

(122.) Fimrite, supra note 11. at A1 (quoting Joel Effron, Oakland hills homeowner).

(123.) 256 U.S. 465 (1921).

(124.) Id. at 473.

(125.) Id.

(126.) Id.

(127.) Id. at 474.

(128.) Id.

(129.) McDowell also alleged that the search violated his Fifth Amendment rights, but he lost that claim as well. Id. at 475-76.

(130.) Id at 472.

(131.) Id. at 476.

(132.) For a review of these cases, see infra text accompanying now 137-153.

(133.) Burdeau, 256 U.S. at 475.

(134.) See, e.g., Gitlow v. New York, 268 U.S. 652 (1925) (allowing a state to sanction subversive advocacy); Abrams v. United States, 250 U.S. 616 (1919) (same); see also Whitney v. California, 274 U.S. 357 (1927) (Holmes and Brandeis dissent from the majority holding, but concur with the result on a technical ground). Holmes and Brandeis' dissents in these cases have become more influential than the majority opinions. See in infra text accompanying notes 154-158.

(135.) Burdeau, 256 U.S. at 477 (Brandeis, J., dissenting).

(136.) Both Justice Brandeis and Justice Holmes expounded on this point in their dissents to Olmstead v. United States, 277 U.S. 438 (1928). Justice Brandeis wrote:

In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means -- to declare that the government may commit crimes in order to secure the conviction of a private criminal -- would bring terrible retribution.

Id at 485. Justice Holmes concurred with Justice Brandeis' opinion and also added:

For those who agree with me no distinction can be taken between the government as prosecutor and the government as judge. If the existing code does not permit district attorneys to have a hand in such dirty business it does not permit the judge to allow such iniquities to succeed.

Id. at 470.

(137.) Two of the cases that the Burdeau Court cites -- Johnson v. United States, 228 U.S. 457 (1913), and Perlman v. United States, 247 U.S. 7 (1918) -- provide little guidance as to the public/private distinction. This Article does not discuss their holdings, but recognizes that their lack of support does not help the Burdeau cause.

(138.) 116 U.S. 616 (1886).

(139.) Id.

(140.) Id. at 627 (quoting Lord Camden) (emphasis added).

(141.) Id. at 635.

(142.) Id. at 630 (emphasis added).

(143.) 192 U.S. 585 (1904).

(144.) Id. at 598.

(145.) 232 U.S. 383 (1913).

(146.) Id. at 398.

(147.) See Mapp v. Ohio, 367 U.S. 643 (1961) (extending the exclusionary rule to state prosecutions).

(148.) 251 U.S. 385 (1920).

(149.) Id. at 389.

(150.) Id. at 392.

(151.) 255 U.S. 298(1921).

(152.) Id. at 304.

(153.) Id. at 305, 306 (emphasis added).

(154.) 395 U.S. 444, 447 (1969) (per curiam). The current test is whether the speech "is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." Id.

(155.) 268 U.S. at 672-73.

(156.) 274 U.S. 357, 372-80 (1927).

(157.) 244 F. 535, 540 (S.D.N.Y. 1917).

(158.) Gerald Gunther, Constitutional Law 1025 (12th ed. 1991).

(159.) For the text of the Fourth Amendment see supra note 18.

(160.) For the history behind the Fourth Amendment, see generally Jacob W. Landynski, Search and Seisure and the Supreme Court 19 (1966).

(161.) I do not argue that the Fourth Amendment ultimately should apply to all private acts. Rather, I urge an expansion of our understanding of "government" to include regulate and organized security organizations that effectively replace the police in gated communities. See infra notes 235-264 and accompanying text.

(162.) For example, in Montana v. Brecht, the Montana Supreme Court held that "[t]he violation of the constitutional right to privacy and against compulsory self-incrimination is as detrimental to the person to whom the protection is guaranteed in the one case as in the other. To distinguish between classes of violators is tantamount to destruction of the right itself." 157 Mont. 264, 270 (1971). This decision was based on both the federal Fourth Amendment and Article III Section 7 of the state constitution, its so-called "privacy section." Id. at 269-70. Yet the court reversed itself 14 years later in Montana v. Long: "[I]n accordance with well-established constitutional principles, we hold that the privacy section of the Montana Constitution contimplates privacy invasion by state action only." 216 Mont. 65, 71 (1985).

The California Supreme Court came to a similar conclusion in California v. Zelinksi, 24 Cal.3d 357 (1979), but Proposition 8, a California initiative, overturned the holding and returned California law to the Burdeau standard. See California v. Taylor, 222 Cal.App.3d 612, 621 (1990).

For a state court argument that Mapp v. Ohio overturned Burdeau, see the dissent in Sackler v. Sackler, 229 N.Y.S.2d 61, 67 (1962) ("In my opinion, Burdeau v. McDowell no longer survives as precedent compelling the admission of illegally obtained evidence.... [Ilt was obliterated by Mapp v. Ohio...") (citations omitted).

(163.) The current Court has shown a willingness to ignore stare decisis, such as in Seminole Tribe of Florida v. Florida, 116 S. Ct. 1114 (1996) (holding that Congress cannot override the Eleventh Amendment with the commerce clause), and United States v. Lopez, 115 S. Ct. 1624 (1995) (overturning a federal guns near school law as being outside the Commerce Clause power). Nevertheless, the Court shows no indication that it will overrule Burdeau.

(164.) 466 U.S. 109 (1984).

(165.) Id. at 117 ("The Fourth Amendment is implicated only if the authorities use information with respect to which the expectation of privacy has not already been frustrated.").

(166.) Id ("It is well-settled that when an individual reveals private information to another, he assumes the risk that his confidant will reveal that information to the authorities, and if that occurs, the Fourth Amendment does not prohibit governmental use of that information.").

(167.) This test comes from United States v. Kelly, 529 F.2d 1365, 1371 (8th Cir. 1976). For a pre-Jacobsen look at the Kelly test and its progeny, see David L. DeNinno, Private Searches and Seizures: An Application of the Public Function Theory, 48 Geo. Wash. L. Rev. 433, 442-48 (1980).

(168.) For articles detailing the Rehnquist Court's acquiescence to the drug war, see Gerald S. Reamey, When "Special Needs " Meet Probable Cause: Denying the Devil the Benefit of the Law, 19 Hastings Const. L.Q. 295 (1992) (examining how the Court's "special needs" analysis threatens the Fourth Amendment); Stephen A. Saltzburg, Another Victim of Illegal Narcotics: The Fourth Amendment (As Illustrated By the Open Fields Doctrine), 48 U. Pitt. L. Rev. 1, 2 (1986) ("[T]here is another victim of illegal narcotics in the United States, every bit as real as the others, yet much less obvious; this victim is the fourth amendment."); Steven Wisotsky, Crackdown: The Emerging `Drug Exception' to the Bill of Rights, 38 Hastings L.J. 889, 893 (1987) (detailing what "weapons" die Court has allowed in this war, including Department of Defense supplied planes, helicopters, boats, and even a nuclear powered aircraft carrier).

(169.) 326 U.S. 501 (1946).

(170.) See, e.g., Douglas v. City of Jeannette, 319 U.S. 157 (1943) (holding that a federal court may not enjoin a state criminal proceeding involving a Jehovah's Witness); Murdock v. Pennsylvania, 319 U.S. 105 (1943) (overturning a law that barred Jehovah's Witnesses from distributing leaflets without a permit as an unconstitutional "prior restraint"); Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) (holding that the First Amendment does not protect a Jehovah's Witness from uttering "fighting words," such as "damned racketeer" and "damned fascist").

(171.) Marsh, 326 U.S. at 503.

(172.) Id. at 502.

(173.) Id.

(174.) The sign read in full: "This is Private Property, and Without Written Permission, No Street, or House Vendor, Agent or Solicitation of Any Kind Will Be Permitted." Id. at 503.

(175.) Id.

(176.) Id.

(177.) Id. The relevant Alabama law was Title 14, Section 426 of the 1940 Alabama Code.

(178.) Id. at 504.

(179.) Id.

(180.) Id. at 503.

(181.) Id. at 506.

(182.) Id at 509.

(183.) Id. at 511 (Frankfurter, J., concurring).

(184.) Id. The Supreme Court often has said that the Fourth Amendment is one of our most precious freedoms. See, e.g., Coolidge v. New Hampshire, 403 U.S. 443,455 (1971) ("In times of unrest, whether caused by crime or racial conflict or fear of internal subversion, [the Fourth Amendment] and the values that it represents may appear unrealistic or "extravagant" to some. But the values were those of the authors of our fundamental constitutional concepts.").

(185.) See supra text accompanying note 49 (describing Silver Creek).

(186.) See supra text accompanying notes 47-48.

(187.) Norman Geis, Personal Viewpoint: Residential Private Governments and the Law, 67 A.B.A. J. 1418, 1418 (1981).

(188.) Brower, supra note 51, at 250.

(189.) Marsh, 326 U.S. at 510 (Frankfurter, J., concurring).

(190.) Id. at 506.

(191.) Id. at 503.

(192.) Curtis J. Berger, Pruneyard Revisited. Political activity on Private Lands, 66 N.Y.U. L. Rev. 633 (1991).

(193.) Id. at 653-54.

(194.) Id at 655.

(195.) 547 F.2d 891 (5th Cir. 1977).

(196.) Id at 893-94.

(197.) Marsh, 326 U.S. at 510 Frankfurter, J., concurring).

(198.) There is no single state action theory. Courts at various tests use various tests. For an excellent examination of the various state action just written just days after Lebron v. National Railroad Passenger Corp., see Gallagher v. Neil Young Freedom Concert, 49 F.3d 1442,1448-57 (10th Cir. 1995) (applying the nexus test, the symbiotic relationship test, the joint action test, and the public function test).

(199.) 365 U.S. 715 (1961).

(200.) Id. at 716.

(201.) Id.

(202.) Id.

(203.) Id. at 723-24.

(204.) Id at 725.

(205.) 407 U.S. 163 (1972).

(206.) Id. at 175. In Moose Lodge, the Court held that the discriminatory policies of a private club did not trigger the Fourteenth Amendment, even though the state licensed Moose Lodge to serve alcohol. Id at 171-72.

(207.) See supra note 116 and accompanying text.

(208.) See supra note 122.

(209.) See supra notes 112-117 and accompanying text.

(210.) 115 S. Ct. 961 (1995).

(211.) Id. at 972.

(212.) See supra note 117 and accompanying text.

(213.) See id.

(214.) Burton, 365 U.S. at 725-26.

(215.) See 1 Martin A. Schwartz & John E. Kirklin, Section 1983 1983 Litigation: Claims, Defense, and Fees [section] 5.11, at 274 (2d ed. 1991) ("The present Supreme Court ... has not found state action in any case that has relied upon Burton. In each case in which the applicability of Burton has arisen the Court has distinguished Burton on its facts as part of its justification for not finding state action."). Of course, this omits the recent but limited holding of Lebron.

(216.) 457 U.S. 991 (1982).

(217.) Id. at 1011-12.

(218.) Id at 1012.

(219.) 419 U.S. 345 (1974).

(220.) Id. at 358.

(221.) Id. For other examples of the Court's unwillingness to find a symbiotic relationship, see San Francisco Arts & Athletics Inc. v. United States Olympic Comm., 483 U.S. 522, 547 n.29 (1987) (holding that there was no symbiotic relationship even though Congress granted the Committee exclusive use of the term "Olympic") and Rendell-Baker v. Kohn, 457 U.S. 830, 842 (1982) (holding that no state action existed even though the school received 90% of its funding from the state).

(222.) Lebron, 115 S. Ct. at 972.

(223.) The Court issued a very limited holding: We hold that where, as here, the Government creates a corporation by special law, for the furtherance of governmental objectives, and retains for itself permanent authority to appoint a majority of the directors of that corporation, the corporation is part of the Govermnent for purposes of the First Amendment. Id. at 974-75.

(224.) Id. at 976 (O'Connor, J., dissenting).

(225.) Id.

(226.) See Geofrrey R. Stone et al., Constitutional Law 1633 (2d ed. 1991).

(227.) 419 U.S. 345 (1974).

(228.) Id. at 347. Met-Ed also claimed that someone tampered with the meter so Met-Ed could not register the amount of energy used. Id.

(229.) Id.

(230.) Id. at 349.

(231.) Id. at 349-50.

(232.) Some commentators argue that Chief Justice Rehnquist's clarification was little more than an attempt to limit the state action doctrine. See Dilan A. Esper, Note, Some Thoughts on the Puzzle of State Action, 68 S. Cal. L. Rev. 663, 705 (1995) ("Love it or hate it, Justice Rehnquist's standard has stuck. Essentially, it has eviscerated the public function doctrine.").

(233.) Jackson, 419 U.S. at 352.

(234.) Id. at 364.

(235.) Laurence Tribe, American Constitutional Law [sections] 18-5, at 1705

(236.) Human history is so diverse and contradictory that if one looks hard enough, one can find some historic example to support virtually any position. For example, Judge Posner wrote that arrests were not traditional governmental functions because "[t]here have been citizen arrests for as long as there have been public police -- indeed much longer. In ancient Greece and Rome, and in England until the nineteenth century, most arrests and prosecutions were by private individuals.... Arrest has never been an exclusively governmental function." Spencer v. Lee, 864 F.2d 1376, 1380 (7th Cir. 1989) (en banc).

To Judge Posner's credit, he does not end his search with ancient Greece and Rome, but reads Blackstone for guidance. Still, his citation to the days of Aristotle and Cicero is disconcerting. Could one argue that the role of "punishment" is not a traditional and exclusive function of the state because in early England, disputes were settled not by the King, but by private blood feuds? Another article can tackle that subject. For a look at the blood feuds, see Sir Frederick Pollock & Frederick William Maitland, 2 The History of English Law Before the Time of Edward I, at 450 (1899).

(237.) Lawrence M. Friedman, Crime and Punishment In American History 69 (1993).

(238.) Id.

(239.) Id.

(240.) See Terry v. Ohio, 392 U.S. 1 (1968) (allowing police to stop and frisk individuals for weapons).

(241.) Friedman, supra note 237, at 462.

(242.) Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 158 (1978) (quoting Jackson, 419 U.S. at 356).

(243.) Blum v. Yaretsky, 457 U.S. 991, 1011-12 (1982).

(244.) Rendell-Baker v. Kohn, 457 U.S. 830, 842 (1982).

(245.) Terry v. Adams, 345 U.S. 461, 468-70 (1953).

(246.) Evans v. Newton, 382 U.S. 296, 298-302 (1966).

(247.) 436 U.S. 149 (1978).

(248.) 378 U.S. 130 (1964).

(249.) Flagg Bros., Inc., 436 U.S. at 172 n.8 (Stevens, J., dissenting).

(250.) Id. at 163 n. 14.

(251.) 19 F.3d 441 (8th Cir. 1994).

(252.) Id. at 443-44. The Tenth Circuit applied much of this analysis in Gallagher v. Neil Young Freedom Concert, 49 F.3d 1442, 1457 (10th Cir. 1995).

(253.) 424 A.2d 113 (D.C. 1980) (en banc).

(254.) Id. at 121.

(255.) New Mexico v. Murillo, 113 N.M. 186, 189 (Ct. App. 1991).

(256.) New York v. Stormer, 518 N.Y.S.2d 351, 352 (1987)

(257.) 424 A.2d at 122

([A] retail store security guard, who does more than protect his employer's property full-time, but who pursues, apprehends and detains criminals, who performs custodial searches (consensual or nonconsensual) or seizes and preserves evidence, add who interrogates and refers the criminal for prosecution is performing a police function exclusively reserved to the state.)

(Mack, J., dissenting).

(258.) 460 N.W.2d 614, 622 (Minn. 1990) ("Private investigators and security guards who regularly engage in the `public function' of law enforcement should be subject to fourth amendment constraints.") (Yetka, J., dissenting).

(259.) See supra note 109 and accompanying text.

(260.) See supra note 63 and accompanying text.

(261.) Wayne R. LaFave, Search and Seizure: A Treatise On The Fourth Amendment [section] 1.8(d) (2d ed. 1987).

(262.) See supra note 102-122 and accompanying text.

(263.) But see supra note 73 and accompanying text.

(264.) Flagg Bros., Inc., 436 U.S. at 158 (quoting Jackson, 419 U.S. at 356).

(265.) 17 U.S. (4 Wheat) 316 (1819).

(266.) Id. at 407.

(267.) Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392 (1920).

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