than other private persons. (See Private Police in California: A Legislative Proposal (1975) 5 Golden Gate L.Rev. 115, 129-134; cf. Stapleton v. Superior Court (1968) 70 Cal.2d 97, 100-101, fn. 3, 73 Cal. Rptr. 575, 447 P.2d 967.) Like all private persons, security employees can arrest or detain an offender (Pen.Code, sec. 837) and search for weapons (Pen.Code, sec. 846) before taking the offender to a magistrate or delivering him to a peace officer (Pen.Code, secs 847, 849). The permissible scope of search incident to a citizen's arrest is set out in People v. Sandoval (1966) 65 Cal.2d 303, 311, fn. 5, 54 Cal.Rptr. 123, 128, 419 P.2d 187, 192.5: "A citizen effecting such an arrest is authorized only to 'take from the person arrested all offensive weapons which he may have about his person' (Pen.Code, sec. 846), not to conduct a search for contraband 'incidental' to the arrest, or to seize such contraband upon recovering it. [Citation.] We reject the suggestion of People v. Alvarado (1962) 208 Cal.App.2d 629, 631, 25 Cal.Rptr. 437, that the search of one private individual or his premises by another is lawful simply because 'incidental' to a lawful citizen's arrest...." The rationale behind the rule is that, absent statutory authorization, private citizens are not and should not be permitted to take property from other private citizens. The limits of the merchant's authority to search is now expressly stated in Penal Code section 490.5. Paragraph (3) of subdivision (e) provides that "During the period of detention any items which a merchant has reasonable cause to believe are unlawfully taken from his premises and which are in plain view may be examined by the merchant for the purposes of ascertaining the ownership thereof." (Italics added.) Neither the statute nor the privilege which it codified purport to give to the merchant or his employees the authority to search. In the present case, instead of holding defendant and her handbag until the arrival of a peace officer who may have been authorized to search, the employees instituted a search to recover goods that were not in plain view. Such intrusion into defendant's person and effects was not authorized as incident to a citizen's arrest pursuant to section 837 of the Penal Code (Sandoval, supra, 65 Cal. fn. 5, at p. 311, 54 Cal.Rptr. 123, 419 P.2d 187), or pursuant to the merchant's privilege subsequently codified in subdivision (e) of section 490.5. It was unnecessary to achieve the employees' reasonable concerns of assuring that defendant carried no weapons and of preventing loss of store property. As a matter of law, therefore, the fruits of that search were illegally obtained. The People contend that the evidence is nevertheless admissible because the search and seizure were made by private persons. They urge the Burdeau v. McDowell (1921) 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048 holding that Fourth Amendment proscriptions against unreasonable searches and seizures do not apply to private conduct, is still good law and controlling.... Defendant contends, on the other hand, that only by applying the exclusionary rule to all searches conducted by store detectives and other private security personnel can freedoms embodied in the Fourth Amendment of the federal Constitution and article I, section 13 of the state Constitution be protected from the abuses and dangers inherent in the growth of private security activities. More than a decade ago we expressed concern that searches by private security forces can involve a "particularly serious threat to privacy" (Stapleton, supra, 70 Cal.2d at pp. 100-101, fn. 3, 73 Cal.Rptr. at pp. 577 n. 3, 447 P.2d at pp. 969 n. 3); in Stapleton and later in Dyas v. Superior Court (1974) 11 Cal.3d 628, 633, 114 Cal.Rptr. 114, 522 P.2d 674, we left open the question whether searches by such private individuals should be held subject to the constitutional proscriptions. We now address the problem. Article I, section 13 of the California Constitution provides in part that: "That right of the people to be secure in their persons, houses, papers and effects against unreasonable seizures and searches may not be violated...." Although the constitutional provision contains no language indicating that the "security" protected by the provision is limited to security from governmental searches or seizures, California cases have generally interpreted this provision as primarily intended as a protection of the people against such governmentally initiated or governmentally directed intrusions. The exclusionary rule, fashioned to implement the rights secured by the constitutional provision, has therefore been applied to exclude evidence illegally obtained by private citizens only where it served the purpose of the exclusionary rule in restraining abuses by the police of their statutory pow ers.... We have recognized that private security personnel, like police, have the authority to detain suspects, conduct investigations, and make arrests. They are not police, however, and we have refused to accord them the special privileges and protections enjoyed by official police officers. (See People v. Corey (1978) 21 Cal.3d 738, 147 Cal. Rptr. 639, 581 P.2d 644.) We have excluded the fruits of their illegal investigations only when they were acting in concert with the police or when the police were standing silently by. (Stapleton, supra, 70 Cal.2d at p. 103, 73 Cal.Rptr. 575, 447 P.2d 967.) We are mindful, however, of the increasing reliance placed upon private security personnel by local law enforcement authorities for the prevention of crime and enforcement of the criminal law and the increasing threat to privacy rights posed thereby. Since Stapleton was decided, the private se curity industry has grown tremendously, and, from all indications, the number of private security personnel continues to increase today. A recent report prepared by the Private Security Advisory Council to the United States Department of Justice describes this phenomenon in the following terms: "A vast army of workers are employed in local, state and federal government to prevent crime and to deal with criminal activity. Generally thought of as the country's major crime prevention force are the more than 40,000 public law enforcement agencies with their 475,000 employees. While they constitute the . . . most visible component of the criminal justice system, another group has been fast rising in both numbers and responsibility in the area of crime prevention. With a rate of increase exceeding even that of the public police, the private security sector has become the largest single group in the country engaged in the prevention of crime." (Private Security Adv. Coun. to U.S. Dept. of Justice, LEAA, Report on the Regulation of Private Security Services (1976) p. 1.) Realistically, therefore, we recognize that in our state today illegal conduct of privately employed security personnel poses a threat to privacy rights of Californians that is comparable to that which may be posed by the unlawful conduct of police officers. (See generally, Private Police in California—A Legislative Discussion Notes 1. See John M. Burkoff, "Not So Private Searches and the Constitution," Cornell Law Review 66 (April 1981): 627; State v. Nelson, 354 So.2d 540 (La. 1978); State v. Helfrich, 600 P.2d 816 (Mont. 1979). 2. In what other contexts could the state action requirement be reduced or eliminated? 3. Article I, paragraph 19 of the New Jersey Constitution provides "Persons in private employment shall have the right to organize and bargain collectively..." Proposal, supra, 5 Golden Gate L.Rev. 115; Bassiouni, Citizen's Arrest: The Law of Arrest, Search and Seizure for Private Citizens and Private Police (1977), p. 72.) Moreover, the application of the exclusionary rule can be expected to have a deterrent effect on such unlawful search and seizure practices since private security personnel, unlike ordinary private citizens, may regularly perform such quasi-law enforcement activities in the course of their employment. (See Seizures by Private Parties: Exclusion in Criminal Cases (1967) 19 Stan.L.Rev. 608, 614-615.) In the instant case, however, we need not, and do not, decide whether the constitutional constraints of article I, section 13, apply to all of the varied activities of private security personnel, for here the store security forces did not act in a purely private capacity but rather were fulfilling a public function in bringing violators of the law to public justice. For reasons hereinafter expressed, we conclude, that under such circumstances, i.e., when private security personnel conduct an illegal search or seizure while engaged in a statutorily-authorized citizen's arrest and detention of a person in aid of law enforcement authorities, the constitutional proscriptions of article 1, section 13 are applicable. 4. See generally Note "Free Speech, The Private Employee, and State Constitutions," Yale Law Journal 91 (January 1982): 522. For cases treating the problem of state action in the private employment context, see Schreiner v. McKenzie Tank Lines, Inc., 432 So.2d 367 (Fla. 1983); Gay Law Students Assoc. v. Pacific Tel. & Tel. Co., 24 Cal.3d 458, 468-70, 595 P.2d 592, 598-602 (1979); Peper v. Princeton University, 77 N.J. 55, 389 A.2d 465 (1978). H. Substantive Due Process and State Constitutions A.E. Dick Howard, "State Courts and Constitutional Rights in the Day of the Burger Court" Virginia Law Review 62 (June 1976): 879-83. © 1976 Virginia Law Review Association and Fred B. Rothman & Co. Reprinted by permission. I. Economic Regulation Attempts to resort to the federal courts for the protection of economic enterprise from government regulation began shortly after the adoption of the Fourteenth Amendment. They came at a time when many states, such as those that passed the Granger Laws, 23 were beginning to be more active regulators of business. At first it appeared that the Fourteenth Amendment's due process clause would be confined to questions of procedure, but pressures to make substantive decisions soon arose. In 1877 Justice Miller complained that the Supreme Court's docket was "crowded with cases in which we are asked to hold that State courts and State legislatures have deprived their own citizens of life, liberty, or property without due process of law." He thought this "abundant evidence" of a "strange misconception" about the Fourteenth Amendment.24 And a few years later the Court commented that the Court was "not a harbor 23These were laws passed by certain midwestern states in the early 1870's attempting through rate reform to regain control over the railroads operating in those states. They provoked a major constitutional crisis over state interference with private enterprise. See G. MILLER, RAILROADS AND THE GRANGER LAWS (1971). 24Davidson v. New Orleans, 96 U.S. 97, 104 (1877). where refuge can be found from every act of illadvised and oppressive State legislation."25 Yesterday's strange misconceptions have a way of becoming tomorrow's law. It was not many years before the Court was to become just the sort of refuge it said it would not be. In 1897 the Court for the first time struck down a state law on substantive due process grounds, speaking through Justice Peckham of Fourteenth Amendment "liberty" as including the right to live and work where one chooses, earn a livelihood "by any lawful calling," pursue “any livelihood or avocation," and enter into contracts for those purposes.26 In 1905 the Court used the due process clause to strike down a New York statute limiting employment in bakeries to ten hours a day, stating that statutes limiting the hours in which "grown and intelligent men may labor to earn their living, are mere meddlesome interferences with the rights of the individual...."27 For the next thirty years the Court used the due process clause to invalidate minimum wage laws, statutory standardization of bread loaf weight, and other state social and economic legislation.28 The so-called "Constitutional Revolution" of the 1930's, occasioned in part because of the pressing need to use state police power to deal with the crisis of a severe depression, brought a new order supportive of economic regulation. Since then, the Supreme Court has overruled many of the old substantive due process decisions, taking the view that as far as eco 25 Missouri Pac, Ry. v. Humes, 115 U.S. 512, 521 (1885). 26 Allgeyer v. Louisiana, 165 U.S. 578, 589 (1897). 27Lochner v. New York, 198 U.S. 45. 61 (1905). 20 See, e.g., Weaver v. Palmer Bros. Co., 270 U.S. 402 (1926) (prohibiting use of shoddy [sic] in manufacture of bedding); Jay Burns Baking Co. v. Bryan, 264 U.S. 504 (1924) (weight of loaves of bread); Adkins v. Children's Hosp., 261 U.S. 525 (1923) (minimum wages for women): Coppage v. Kansas, 236 U.S. 1 (1915) (outlawing "yellow dog" contracts in labor relations). nomic questions are concerned, it will "not sit as a super-legislature" to weigh the wisdom of state legislation.30 The point is made most directly in Ferguson v. Skrupa,31 where Justice Black-long one of the most bitter foes of the old uses of substantive due process-declared: "Whether the legislature takes for its textbook Adam Smith, Herbert Spencer, Lord Keynes, or some other is no concern of ours."32 In this area the Burger Court has adhered to the "hands-off" doctrine that its predecessors have followed since 1937.... Long before the adoption of the Fourteenth Amendment, state courts had begun to develop a body of substantive due process law, drawing on state constitutional due process or "law of the land" provisions.41 And notwithstanding the Supreme court's post-1937 "hands-off" posture in the economic sphere, studies of state court decisions have made it clear that substantive due process has lived on in the states. Two such studies were written in the 1950's. One concluded that "it is not surprising that just as the doctrine of substantive due process was finding expression in the states before 1890, so also the principle should continue to enjoy a vigorous life in some states after it has fallen into disuse on the national level."42 The other study expressly approved of this activity by state courts. Noting that pressure groups are often able to secure legislation distinctly not in the public interest, the commentator thought the problem of abuse of the police power "real and important" and argued for state courts using state constitutions "to strike a balance between the economic freedom of the individual and the power of government."43 Old habits die hard, and it is not surprising that state court judges in the 1950's were still thinking in substantive due process terms. That generation of judges had completed their legal education well before even the Supreme Court had begun to reject the premises of the cases decided early in the twentieth century. One might expect, however, that by the 1970's, with the Supreme Court's renunciation of "See generally A. Howard, The Road From Runnymede (1968); Corwin, The Doctrine of Due Process of Law Before the Civil War, 24 Harv.L. Rev. 366, 460 (1911). 42 Paulsen, The Persistence of Substantive Due Process in the States, 34 MINN. L.REV. 91, 93 (1950) (emphasis in original). 43 Hetherington, State Economic Regulation and Substantive Due Process of Law, 53 Nw. U.L. Rev. 226, 248-51 (1958). See also Note, Counterrevolution is State Constitutional Law, 15 Stan.L.Rev. 309 (1963). substantive due process in economic cases so clear and so widely known, state court would have fallen in line, and limited their own review of legislative judgments touching social and economic questions. A look at state court decisions of the 1960's and 1970's shows that this has not happened. Substantive due process continues to live in at least some state courts. The picture, one hastens to say, is quite mixed. Many courts defer to legislative judgments in terms similar to those used by the United States Supreme Court. For example, the Supreme Court of Ohio has stated that it is “not concerned with the wisdom" of legislation,44 and the Supreme Judicial Court of Massachusetts has determined that all it requires is that there be "any rational basis of facts that reasonably can be conceived" to sustain the legislation.45 A number of state courts, however, prefer a more searching inquiry into the justification for state regulation of economic activity. Cases reviewing challenges to fair trade laws, regulation of prices, and business and professional licensing schemes and other barriers to entry into a business or profession are illustrative. Fair trade law cases are especially interesting because they reveal an instance in which, precisely at the same time the federal trend has been towards the "hands-off" view, state courts have been increasingly willing to strike down such laws.46 As of 1956, seventeen states had upheld these statutes as valid under their state constitutions; only four states had declared them unconstitutional.47 Today, the tide has turned markedly in the other direction; far more states have struck down fair trade laws than have upheld them.48 The state courts overturning these laws have used various grounds, including invalid delegation of legislative power, violation of due process of law, limits of the police power, and state constitutional provisions against price fixing or monopolies. "Olin Mathieson Chem. Corp. v. Ontario Store of Price Hill, Inc., 9 Ohio St. 2d 67 70, 223 N.E.2d 592, 594 (1967). 45Corning Glass Works v. Ann & Hope, Inc., 363 Mass. 409, 416, 294 N.E.2d 354, 358 (1973). 46 Congress has recently repealed its statutory authorization for fair trade laws. Act. of Dec. 12, 1975. Publ. L. No. 94-145, 89 Stat. 801, amending 15 U.S.C. sec. 1, 45 (1970), as amended (Supp. IV, 1974). Fair trade statutes authorize resale price maintenance by contracts enforceable against nonsigners having knowledge of such contracts. 47 See Corning Glass Works v. Ann & Hope, Inc., 363 Mass. 409; 413-14, 294 N.E.2d 354, 357 (1973). 48 See 2 CCH Trade Reg. Rep. para. 6.041 (Mar. 15, 1976). Discussion Notes 1. For an excellent review of the demise of federal substantive due process, see Robert G. McCloskey, "Economic Due Process and The Supreme Court: An Exhumation and Reburial," Supreme Court Review 1962: 34 (1962). 2. See James C Kirby, Jr., "Expansive Judicial Review of Economic Regulation Under State Constitutions," in Developments in State Constitutional Law, ed. Bradley D. McGraw (St. Paul: West Publishing Co., 1985), pp. 94-145; Peter J. Galie, "State Courts and Economic Rights," Annals of the American Academy of Political and Social Science 496 (March 1988): 76. Bulova Watch Co. v. Brand Distributors of North Wilkesboro, Inc. 206 S.E.2d 141 (N.C. 1974) The plaintiff is a well known manufacturer of watches and other products which it sells throughout the nation to retail jewelry stores for resale. Within this State, it sells its watches to retailers with whom it enters into a "Fair Trade Agreement." By such agreement the retailer agrees not to sell or offer for sale any watch or other article, bearing the plaintiff's brand or trade name, at a price different from that shown on a retail price list compiled and furnished by the plaintiff, who reserves the right to change the listed prices from time to time. The agreement further provides that the plaintiff agrees to employ all reasonable and lawful means, including legal action, to obtain and enforce general observance of such prices by retailers. The corporate defendants operate retail establishments selling watches, jewelry and like products in North Wilkesboro, the individual defendant being the president and principal stockholder of each such corporation. None of the defendants has made any contract with the plaintiff, or with any other person, restricting such defendant's right to sell any watch or other product manufactured by or bearing the brand, name or trade mark of the plaintiff, or restricting such defendant's right to fix, as it may see fit, the price for which it will sell such article. Watches and other products manufactured by the plaintiff are sold in North Carolina in fair and open competition with like products of other manufacturers. The plaintiff has repeatedly taken legal action and, by other lawful means, has consistently endeavored to prevent sales of its products at retail in North Carolina for prices less than those established by its price lists issued pursuant to its "Fair Trade Agreements." In each of the lower courts they [defendants] contended that the Act is a violation of the Law of the Land Clause, Article 1, sec. 19, of the Constitution of North Carolina in that: (1) It arbitrarily limits the property rights of a retailer in a product which he has purchased and his liberty to dispose of the article as he sees fit; (2) it has no relation to the health, safety or welfare of the citizens of North Carolina, but is an unwarranted and unconstitutional use of the police power of the State to enforce an artificial price fixed by the plaintiff; and (3) it is an unconstitutional delegation to private persons, firms and corporations of the power to fix prices without any standard of administration or control by any governmental agency. LAKE, Justice. The pertinent portions of the North Carolina Fair Trade Act, enacted in 1937, are as follows: "GS 66-56. Violation of contract declared In Lilly & Co. v. Saunders, 216 N.C. 163, 4 S.E.2d 528, 125 A.L.R. 1308 (1939), this Court held the Fair Trade Act constitutional, Justice Barnhill, later Chief Justice dissenting. The judgments of the Court of Appeals and of the Superior Court in the present case are in accord with that decision. The defendants ask us to reconsider that decision and to determine anew the constitutionality of the Fair Trade Act, specifically the nonsigner provision contained in G.S. sec. 66-56, substantially for the reasons set forth in |