STATE'S PETITION FOR DISCRETIONARY REVIEW FROM THE
THIRTEENTH COURT OF APPEALS NUECES COUNTY.
Keller, P.J., delivered the opinion of the Court in which
Keasler, Hervey, Richardson, Yeary, and Keel, JJ., joined.
Walker, J., filed a dissenting opinion in which Alcala, J.,
joined. Newell, J., concurred.
consider whether a police officer had probable cause to
arrest a customer for theft from a store (for concealing
items in her purse) when she had not yet exited the store and
when she claimed, after being confronted by the officer, that
she was going to pay for the items she had taken. We conclude
that the officer had probable cause to arrest.
was indicted for possession of methamphetamine. The drugs
were seized from her purse at a Dollar General store during a
theft investigation. Appellee filed a motion to suppress the
drugs, and the police report of the incident was admitted at
the suppression hearing.
to the police report, a Dollar General store employee
reported that a customer in the store was concealing store
merchandise in her purse and jacket. Upon arriving at the
store, the responding police officer met with the employee
who made the report. The employee told the officer that the
customer in question was in the northeast corner of the
store, and she described the customer as a "white female
with blond hair" wearing "blue jeans and a light
blue shirt." The officer went to that part of the store
and encountered appellee, who met the employee's
officer informed appellee that she had been seen concealing
items in her purse. Appellee responded that she had put items
in her purse, but she was not done shopping, and she was
going to pay for the items before she left. The officer
noticed that appellee had a shopping cart and that there were
items from the store in the cart that were not in her
purse. The purse was in the child seat of the
shopping cart and was covered by a blue jacket.
officer picked up the blue jacket and discovered that the
purse was zipped up and full of merchandise. Upon removing
the store items from the purse, the officer discovered six
small baggies of methamphetamine and two pills later
identified as hydrocodone/ibuprophen. The store employee
printed a receipt for the store items in the purse, and the
total price was $75.10. Appellee was placed under arrest for
theft over $50. She was later booked into jail on charges of
theft and possession of controlled substances.
suppression hearing, the trial court observed that appellee
"never actually tried to leave the store with the
property." The trial court acknowledged that "theft
may be complete without the actual removal of property"
but then concluded that a theft had not occurred here because
appellee "was still shopping." The trial court
further stated that it was left "with a narrative that
is hearsay upon hearsay. There's no one here to vouch for
the credibility of the information." The trial court
acknowledged that appellee "had some items in the basket
[shopping cart] and some items in a purse that was zipped up
and concealed." But the trial court determined that
there was insufficient evidence that appellee intended to
steal the items because she never tried to leave the store
with the items, she did not flee when approached, she did not
try to hide anything, and she indicated that she was going to
pay for the items. Consequently, the trial court concluded
that "the officer acted prematurely in contacting her in
the middle of the store and asking about items that she
placed in a purse, whether zipped or unzipped" and that
inferring an intent to steal was "just too big a leap at
this point, considering her cooperation." The trial
court also stated that it "question[ed] the reliability
of the information contained within the report provided by
[the store employee] to the officer" and "there not
being anyone to substantiate the information [the store
employee] gave." The trial court granted appellee's
motion to suppress.
trial court's written findings of fact and conclusions of
law were as follows:
I. FINDINGS OF FACT
1. On January 9, 2013, a store employee of the Dollar General
Store at Waldron and Glenoak in Corpus Christi, Nueces
County, Texas called Corpus Christi Police Department after
becoming suspicious that Defendant was shoplifting.
2. When the police officer arrived, he found Defendant inside
the store shopping.
3. When stopped by the officer, Defendant had not left the
4. When stopped by the officer, Defendant had not passed the
checkout area of the store.
CONCLUSIONS OF LAW
officer did not have reasonable suspicion to believe that
Defendant had committed a crime at the time he stopped the
Defendant and searched her purse.
officer did not have probable cause to arrest Defendant and
to search her purse.
State did not meet its burden to show that a crime had
State's appeal addressed two interactions between
appellee and the police officer: (1) the conversation between
the officer and appellee, and (2) the search of
appellee's purse. The State contended that the
conversation was part of a consensual encounter. In the
alternative, the State contended that the officer had
reasonable suspicion to stop appellee to question her about a
possible theft. Regarding the search, the State contended
that the totality of the circumstances, including the
employee's report and the officer's conversation with
appellee, gave rise to probable cause to arrest. The State
further argued that, because the officer had probable cause
to arrest, the search was a valid search incident to arrest.
The State also claimed that the trial court's findings on
the motion to suppress were incomplete and needed
court of appeals rejected the State's claim that the
conversation was part of a consensual encounter but agreed
with the State that the police officer had reasonable
suspicion to stop appellee to ask her
questions. Consequently, the court of appeals held
that the trial court erred in concluding that the officer
lacked reasonable suspicion to conduct a stop.
the court of appeals addressed whether the trial court erred
in concluding that the officer lacked probable cause to
arrest. The court of appeals recognized that the
carrying away of property is not an element of theft in
Texas. Nevertheless, the court noted
appellee's statement that she was going to pay for the
items in her purse before she left the store, and the court
said, "Nothing else in the record indicates any actions
or statements by Ford indicating that she was attempting to
appropriate the items with an intent to deprive Dollar
General of the merchandise, as she had not left the store and
also had other items in a shopping cart that she intended to
purchase." The court of appeals also stated,
"The only evidence introduced by the State to support
its arguments was [the officer's] police report and
narrative, which the trial court referenced in its ruling by
expressly finding that the reliability and accuracy of the
information given by [store employee] to [the officer]
regarding the 'items and information' contained
within [the officer's] report was
questionable."Based on these remarks, the court of
appeals held that the trial court was within its discretion
to conclude that the State failed to meet its burden of
establishing probable cause to arrest.
court of appeals also rejected that the State's claim
that the trial court's findings needed supplementation:
"Here, we conclude that the oral and written findings of
fact and conclusions of law made and adopted by the trial
[court] are adequate for this Court to review the trial
court's application of law to facts."
the appellate standard of review on Fourth Amendment claims,
an appellate court is to afford almost total deference to the
trial court's determination of historical facts, and of
application-of-law-to-fact issues that turn on credibility
and demeanor, while reviewing de novo other
application-of-law-to-fact issues. As the prevailing party
at the trial level, appellee gains the benefit of deference
on factual findings made in her favor. However,
whether the facts, as determined by the trial court, add up
to reasonable suspicion or probable cause is a question to be
reviewed de novo.
arrest to be justified under the Fourth Amendment, a police
officer must have "probable cause to believe that the
suspect has committed or is committing an
offense." Probable cause is a fluid concept that
cannot be readily reduced to a neat set of legal
rules. Although the concept evades precise
definition, it involves "a reasonable ground for belief
of guilt" that is "particularized with respect to
the person to be searched or seized." It is a
greater level of suspicion than "reasonable
suspicion" but falls far short of a preponderance of the
evidence standard. If an officer ...