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Consensual Encounter

Sep 27
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Shoplifting Before Leaving the Store

Can Police Arrest a Person for Shoplifting Before They Leave the Store?

By Theft

Shoplifting Before Leaving the StoreThe Court of Criminal Appeals recently handed down a case regarding a police officer’s findings of reasonable suspicion and probable cause. The issue was whether an officer had probable cause to arrest a customer for theft from a store before she actually exited the store and when she claimed, after being confronted by the officer, that she was going to pay for the items shad had placed in her purse.

State v. Ford, Court of Criminal Appeals (2017)

The Facts—What Happened?

A Corpus Christi Police Department Officer responded to a report regarding a customer in a Dollar General Store concealing store merchandise in her purse and jacket. Upon arriving at the store, the responding officer met with the employee and was given a description of the customer.

The police officer approached a customer matching the employee’s description, identified later as Ford, and informed her that she had been seen concealing merchandise in her purse. Ford replied that she was not done shopping and had intended to pay for the items. However, the officer noticed that Ford had a shopping cart with store items that were not in her purse. The purse was covered by a jacket, which the officer picked up, and discovered that the purse was fully zipped up and full of merchandise. Upon removing the store items from her purse, the officer discovered six small baggies of methamphetamine and two pills.

The State charged Ford with theft over $50 and possession of controlled substances. Ford was subsequently indicted for possession of methamphetamine.

Defendant’s Motion to Suppress—The Trial Court Granted Defendant’s Motion and Determined No Reasonable Suspicion or Probable Cause

The drugs found on the defendant were discovered during a theft investigation. The defendant filed a motion to suppress the drugs. The trial court granted the motion to suppress.

At the suppression hearing, the trial court acknowledged that a theft could be complete without the physical removal of the property; however, the court also observed that the defendant never tried to leave the store with the merchandise and “was still shopping.” Further, the court determined that there was insufficient evidence that the defendant intended to steal the merchandise because she did not attempt to leave the store, she did not run or try to conceal anything when approached by the officer, and she stated that she intended to pay for the merchandise.

The trial court concluded that the “officer acted prematurely” in approaching the defendant and asking questions about the merchandise and that inferring an intent to steal was “too big a leap at [that] point.” The trail court questioned the reliability of the information provided during the suppression hearing as it all came from reports by the store employee and the police officer, both of whom were not at the suppression hearing to substantiate the information.

The Court of Appeals Agreed with the Defendant and the State—Holding that the Officer Had Reasonable Suspicion, but Not Probable Cause

On appeal, the State argued that the conversation between the police officer and the defendant was part of a consensual encounter and that the totality of the circumstances gave rise to probable cause to arrest the defendant.

The court of appeals rejected the State’s first claim that the conversation was part of a consensual encounter, but agreed with the State that the police officer had reasonable suspicion to stop the defendant to ask her questions. 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 held that the trial court was within its discretion when it concluded that the State failed to meet its burden of proof establishing probable cause to arrest. This discretion was used when determining that the evidence used by the State was “questionable” with no one able to corroborate the information provided.

The Court of Criminal Appeals Reversed the COA Judgment and Determined that an Officer has Probable Cause to Arrest for Theft Even Before the Defendant Exits the Store

The Court of Criminal Appeals recognized that both the trial court and the court of appeals recognized that it was not necessary for the defendant to take the merchandise out of the store for her to commit theft. Nevertheless, both of the lower courts erred in concluding that the officer did not have probable cause to believe that the defendant intended to steal the items.

The court explained that the officer had knowledge of at least four undisputed facts supporting the idea that the defendant intended to steal: (1) the store employee reported that the defendant was concealing items in her purse; (2) the defendant admitted to the officer that she had concealed items in her purse; (3) the shopping cart had items from the store that were not in her purse; and (4) the defendant’s jacket was covering her purse. The fact that the defendant placed some items in her shopping cart but concealed others in her purse caused the arresting officer to believe the defendant was intending to steal the concealed items.

The court supported this argument by referring to Groomes v. United States, 155 A.2d 73, 75 (D.C. App. 1959), in which the District of Columbia Court of Appeals heard a case—similar to this one—and concluded that once items are removed from the shelf and concealed or put in a convenient place for removal, the elements of a taking and appropriation are satisfied. Further, the police officer could reasonably believe that the placement of the jacket on top of the bag was used to further conceal items.

The court also addressed the lower courts’ concern of reliability of the reports by the employee and the officer. The court notes that the employee’s report was then corroborated by the admission of the defendant, and further, that the employee served as a citizen informant who the officer could reasonably rely on as one of several factors for determining probable cause.

Here, the Court determined that the lower courts erred in concluding that the police officer lacked probable cause to arrest the defendant. Accordingly, the Court reversed the judgments of the courts below.

See Judge Walker’s Dissenting Opinion

Jan 22
Love0

CCA Reverses a “Nonconsensual” Police Encounter

By Search & Seizure

Illegal Search and Seizure Defense Attorneys

What exactly is a “Consensual Encounter” between a police officer and a citizen?  The trend in Texas search and seizure law over the past several years seems to indicate that any time a police officer does not have reasonable suspicion to justify a detention of an individual (or probably cause to arrest), the courts label the unreasonable detention as a “consensual encounter,” thereby justifying the illegal search and sustaining the investigative actions that follow.  The courts reason that the citizen was free to leave at any time during the officer’s questioning so the 4th Amendment is not implicated.

My question has always been” “Exactly what do you think the officer would have done if the person tried to leave during this encounter?” In the case that follows, the Texas Court of Criminal Appeals takes a huge step in the right direction against “consensual encounters.”

Johnson v. State – One night, a resident of an apartment complex called 911 to report a suspicious person- an unidentified black male who was sitting out front of the leasing office watching cars.  In response to her call, a Houston Police officer went to the complex.  Although the officer did not see anyone outside the leasing office, he noticed a vehicle that was backed into a parking space with its lights on.  The officer parked his car in a manner in which the appellant would have had to maneuver around the car to leave and shined his high-beam spotlight in the car.  Believing that appellant could be the suspect, the officer approached the driver side door where he smelled an odor of marijuana.  Despite the fact that the appellant’s clothing did not match the description given by the resident, the officer spoke to the appellant using a ‘loud authoritative voice.’  During the officer’s interaction with the appellant, he smelled an odor of marijuana coming from inside the car.  The officer did not see the marijuana until after he asked appellant to step out of the car.  The officer arrested the appellant and charged him with misdemeanor possession of marijuana.

Appellant filed a motion to suppress asserting that his seizure was made without any reasonable suspicion that he was engaged in any criminal activity and that the acquisition of the evidence was not pursuant to a reasonable investigative detention or pursuant to an arrest warrant.  The trial court denied the motion holding that appellant had been detained and that the officer acted reasonably under the circumstances and did have articulable facts that justified the minimal detention.  The court of appeals affirmed the trial court’s judgment holding that a reasonable person in appellant’s position would have believed that he was free to ignore the officer’s request or terminate the interaction, thus making the initial interaction a consensual encounter rather than a Fourth Amendment seizure.

Police and citizens may engage in three distinct types of interactions: consensual encounters, investigative detentions, and arrests. Consensual police-citizen encounters do not implicate Fourth Amendment protections.  But, when a seizure takes the form of a detention, Fourth Amendment scrutiny is necessary and it must be determined whether the detaining officer had reasonable suspicion that the citizen is, has been, or is about to be engaged in criminal activity.

On review of the denial of appellant’s motion to suppress evidence that led to his marijuana conviction, the Court of Criminal Appeals held that the court of appeals erred in holding that the officer did not detain the appellant.  Under the totality of the circumstances, a reasonable person would not have felt free to leave.  When the officer (1) shined his high-beam spotlight into appellant’s vehicle, (2) parked his police car in such a way as to at least partially block appellant’s vehicle, (3) used a “loud authoritative voice” in speaking with appellant, (4) asked “what’s going on,” and (5) demanded identification, a detention manifested.  The Court of Criminal Appeals reversed and remanded the case to the court of appeals to consider the trial court’s determination that the officer had reasonable suspicion to detain the appellant and to decide whether that detention was valid.

Mar 04
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Texas Consensual Police Encounter Law

Perpetuating the Fiction of the Consensual Police Encounter

By Consensual Encounter, Criminal Defense

Is there really such a thing as a Consensual Police Encounter that ends with an arrest?

Texas Consensual Police Encounter LawIn a case released yesterday from the Texas Court of Criminal Appeals (State v. Castleberry), the CCA went to great lengths to defend and perpetuate the fiction of the consensual police encounter.

In Castleberry, the defendant and a friend were walking behind an Uncle Julio’s restaurant in Dallas. They were not engaged in and did not appear likely to engage in criminal conduct. A Dallas police officer approached them and asked for identification. The defendant reached for his waistband. The police officer then ordered appellant to place his hands in the air. The defendant grabbed a baggy of cocaine from his waistband and tossed it on the ground. The trial court suppressed the cocaine, reasoning that the officer did not have “reasonable suspicion” to justify the stop. The 5th District Court of Appeals agreed.

The CCA, on the other hand, held that the lower courts applied the wrong legal standard and characterized the stop as a consensual police encounter. Writing for the majority, Judge Keasler, stated:

Even if the officer did not tell the citizen that the request for identification or information may be ignored, the fact that a citizen complied with the request does not negate the consensual nature of the encounter…We conclude that a reasonable person in [the defendant’s] position would have felt free to decline [the officer’s] request for identification and information.

The obvious question then becomes, what would the CCA preferred the defendant to do? “No, thanks officer, I prefer not to provide any identification or tell you what I am doing. Thank you. Have a nice night.” Had the appellant said that, there is no doubt the court would now be using his noncompliance to justify a more intrusive search. There is absolutely no way for the defendant to win here.

The opinion goes on to suggest police officers (even when they are in uniform) are just like any average citizen.

Because an officer is just as free as anyone to question, and request identification from, a fellow citizen, [the officer’s]conduct shows that the interaction was a consensual encounter.

Ultimately, the CCA reasons that because the defendant could have been reaching for a weapon when he reached into his waistband, the officer’s further pat-down search was justified under Terry.

The CCA concludes:

The Court of Appeals failed to separate [the encounter] into two distinct parts: (1) [The officer’s] initial approach of [the defendant], which was a consensual encounter; and (2) [The defendant’s] act of reaching for his waistband, which provided [the officer] with reasonable suspicion to detain and frisk [the defendant]. We therefore reverse the court of appeals’s judgment, hold the seized contraband to be admissible, and remand the cause to the trial court.