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State v. Ford

Court of Criminal Appeals of Texas

September 20, 2017

THE STATE OF TEXAS
v.
KIMBERLY FORD, Appellee

         ON 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.

          OPINION

          Keller, P.J.

         We 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.

         I. BACKGROUND

         A. Trial

         Appellee 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.[1]

         According 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 description exactly.

         The 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.[2] The purse was in the child seat of the shopping cart and was covered by a blue jacket.

         The 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.

         At the 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.

         The 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 store.
4. When stopped by the officer, Defendant had not passed the checkout area of the store.

         II. CONCLUSIONS OF LAW

         1. The 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.

         2. The officer did not have probable cause to arrest Defendant and to search her purse.

         3. The State did not meet its burden to show that a crime had occurred.[3]

         B. Appeal

         The 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 supplementation.

         The 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.[4] Consequently, the court of appeals held that the trial court erred in concluding that the officer lacked reasonable suspicion to conduct a stop.[5]

         Next, the court of appeals addressed whether the trial court erred in concluding that the officer lacked probable cause to arrest.[6] The court of appeals recognized that the carrying away of property is not an element of theft in Texas.[7] 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."[8] 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."[9]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.[10]

          The 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."[11]

         II. ANALYSIS

         Under 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.[12] As the prevailing party at the trial level, appellee gains the benefit of deference on factual findings made in her favor.[13] 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.[14]

         For an 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."[15] Probable cause is a fluid concept that cannot be readily reduced to a neat set of legal rules.[16] 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."[17] It is a greater level of suspicion than "reasonable suspicion" but falls far short of a preponderance of the evidence standard.[18] If an officer ...


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