State v. Morris

• Decision Date: 22 January 2019
• Docket Number: No. 2 CA-CR 2018-0123,2 CA-CR 2018-0123
• Citation: 246 Ariz. 154,435 P.3d 1060
• Parties: The STATE of Arizona, Appellant, v. Raymond Verbon MORRIS III, Appellee.
• Court: Arizona Court of Appeals

246 Ariz. 154

435 P.3d 1060

The STATE of Arizona, Appellant,

v.Raymond Verbon MORRIS III, Appellee.

No. 2 CA-CR 2018-0123

Court of Appeals of Arizona, Division 2.

Filed January 22, 2019

Barbara LaWall, Pima County Attorney, By Jacob R. Lines, Deputy County Attorney, Tucson, Counsel for Appellant

Joel Feinman, Pima County Public Defender, By Erin K. Sutherland, Assistant Public Defender, Tucson, Counsel for Appellee

Presiding Judge Eppich authored the opinion of the Court, in which Judge Espinosa and Judge Vásquez concurred.

EPPICH, Presiding Judge:

¶1 The state appeals the trial court’s ruling suppressing evidence police found while searching Raymond Verbon Morris III’s backpack after his shoplifting arrest. Because the court erred in concluding there was no probable cause to support Morris’s arrest, we vacate its ruling and remand the matter for further proceedings.

Factual and Procedural Background

¶2 In reviewing a motion to suppress, we view the evidence in the light most favorable to upholding the trial court’s ruling. State v. Peoples , 240 Ariz. 244, ¶ 7, 378 P.3d 421 (2016). On September 29, 2017, while monitoring surveillance video, a retail store’s loss-prevention employee saw Morris select a pair of sunglasses from a display, cut off and discard the price tag, and put them on. The employee called police to report that Morris was shoplifting. She continued to watch Morris and saw him select a package of condoms and an energy drink from the store’s shelves and put them in his shopping cart on top of his backpack, which he had placed there after wearing it into the store. Later, she saw Morris manipulate the backpack, and the condoms and energy drink were no longer visible; the employee believed Morris had placed the items into the backpack. When police arrived, the loss-prevention employee showed the officer video of Morris cutting the price tag off the sunglasses. She also told the officer she had seen Morris conceal items in his backpack and showed him the portions of the surveillance video she believed showed the concealment.

¶3 In that video, Morris selected two small boxes from shelves in the pharmacy and placed them in the cart with the backpack. One of the boxes—purple with a white side panel—was visible in front of the backpack as Morris later navigated through the toy department.¹ Morris remained in view as he pushed the cart out of the toy department and down a main aisle to the electronics department. As he traveled through the electronics department for the next eighty seconds, Morris and the cart were obscured behind displays most of the time, and when the cart was briefly visible during that time, the view of the purple and white box was obscured. Morris then pushed the cart down an aisle towards the camera and came back into view; his hands were manipulating the backpack, and when the place where the purple and white box had been came into view, the box was missing.

¶4 Morris put several other items in the cart’s basket during the two hours he was in the store, but he returned many of them to the store’s displays before approaching the store’s self-checkout registers. Once at a register, Morris scanned the items remaining in the cart but not the sunglasses, energy drink or condoms. He then attempted to pay for the items he had scanned, but the credit card he used was declined several times. While Morris was still at the register, police officers approached him, told him they suspected him of shoplifting and escorted him to the loss-prevention office. There, they formally placed him under arrest for shoplifting based on his failure to pay for the sunglasses and concealment of items in the backpack.

¶5 After a check of Morris’s criminal history revealed previous convictions on similar charges, police decided to arrest Morris for a felony. They then searched the backpack and found the condoms and energy drink, and also narcotics, drug paraphernalia and a loaded handgun. A grand jury indicted Morris on counts of prohibited possession of a weapon, possession of methamphetamine, possession of heroin and possession of drug paraphernalia.

¶6 Morris filed a motion to suppress the items police had found in his backpack, arguing his arrest was unlawful and that, in any event, the search was not valid as incident to the arrest. After an evidentiary hearing, the trial court granted the motion to suppress, finding there had been no probable cause to arrest Morris for shoplifting and the evidence from the backpack was inadmissible as fruit of the unlawful arrest. The court stated:

Defendant did not conceal the sunglasses, but instead, placed the sunglasses in plain view on his head. Furthermore, neither the deputies, nor the loss prevention officers, saw Defendant conceal the [condoms and energy drink], and therefore had not yet been able to determine if they were, in fact, concealed. In fact, it appears that loss prevention personnel took no steps to determine whether the [condoms and energy drink] were among the many items that Defendant had apparently returned to store shelves.

Because Defendant was still at the point of sale, he had not yet taken the items from the store without paying the purchase price. In fact, he maintained the ability to pay for all of the items, return the items, or leave the items at the register when the debit card was declined. While he had removed a price tag, Defendant could have sought assistance to pay the purchase price, returned the glasses, or taken any other action that did not constitute theft. In short, because Defendant was detained before either leaving or attempting to leave the store with unpaid items, there was no probable cause to arrest him for shoplifting.

¶7 After the trial court granted the state’s subsequent motion to dismiss the case without prejudice, the state timely appealed the court’s grant of Morris’s motion to suppress. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A) and 13-4032(6).

Probable Cause

¶8 The state argues police had probable cause to arrest Morris for shoplifting the sunglasses and the items found in the backpack, contending that a person need not attempt to leave a store without paying to commit shoplifting. As to the sunglasses, the state notes that Morris cut off and discarded the price tag, put the glasses on his head, and attempted to pay for other items without paying for the sunglasses, and concludes that "[a] reasonable person, applying common sense, would understand" that Morris was shoplifting them. The state also argues it was reasonable to believe that Morris had committed shoplifting by concealing items in the backpack because the condoms and energy drink were in the cart, Morris was then seen doing something with his backpack, and the items were no longer there.

¶9 The Fourth Amendment to the United States Constitution protects against "unreasonable searches and seizures." State v. Dean , 206 Ariz. 158, ¶ 8, 76 P.3d 429 (2003). Thus, an arrest must be based on probable cause. State v. Superior Court , 149 Ariz. 269, 273, 718 P.2d 171, 175 (1986). In general, a police officer may arrest a person without a warrant only if the officer has probable cause to believe that an offense has been committed and the person to be arrested is the offender. See A.R.S. § 13-3883(A) (codifying probable cause requirement for arrest). Probable cause is "information sufficient to justify belief by a reasonable man that an offense is being or has been committed," State v. Aguilar , 228 Ariz. 401, ¶ 14, 267 P.3d 1193 (App. 2011) (citing Ker v. California , 374 U.S. 23, 35, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963) ), and "requires only a probability or substantial chance of criminal activity, not an actual showing of such activity," State v. Sisco , 239 Ariz. 532, ¶ 15, 373 P.3d 549 (2016) (quoting Illinois v. Gates , 462 U.S. 213, 243 n.13, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) ). "Probable cause is something less than the proof needed to convict and something more than suspicions." State v. Aleman , 210 Ariz. 232, ¶ 15, 109 P.3d 571 (App. 2005) (quoting State v. Howard , 163 Ariz. 47, 50, 785 P.2d 1235, 1238 (App. 1989) ). The probable cause standard is objective, not subjective, and whether an officer believed there were sufficient facts to support an arrest is not material. State v. Turner , 142 Ariz. 138, 141, 688 P.2d 1030, 1033 (App. 1984). In applying the standard, we consider whether the collective knowledge of law enforcement officers at the time of arrest was sufficient to establish probable cause. Aleman , 210 Ariz. 232, ¶ 15, 109 P.3d 571.

¶10 The Fourth Amendment requires a court to suppress evidence that is the fruit of an unlawful arrest. State v. DeWitt , 184 Ariz. 464, 470, 910 P.2d 9, 15 (1996) (citing Maryland v. Macon , 472 U.S. 463, 468, 105 S.Ct. 2778, 86 L.Ed.2d 370 (1985) ). While in general we review rulings on motions to suppress for abuse of discretion, whether a probable cause determination comports with the Fourth Amendment is a mixed question of law and fact that we review de novo. See State v. Cheatham , 240 Ariz. 1, ¶ 6, 375 P.3d 66 (2016) ; see also Miller v. Fenton , 474 U.S. 104, 113-15, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985) (discussing why de novo review is appropriate for certain constitutional mixed questions of fact and law). We defer, however, to the trial court’s factual findings, including whether witnesses were credible and whether the inferences drawn by a police officer were reasonable. State v. Teagle , 217 Ariz. 17, ¶ 19, 170 P.3d 266 (App. 2007).

¶11 Arizona’s shoplifting statute provides, in relevant part:

A person commits shoplifting if, while in an establishment in which merchandise is displayed for sale, the person knowingly obtains such goods of another with the intent to deprive that person of such goods by:

1. Removing any of the goods from the immediate display or from any other place within the establishment without paying the purchase price; or

....

3. Paying less than the purchase price of the

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