Assigned on Briefs August 5, 2014
Appeal from the Circuit Court for Obion County No. CC-13-CR-127 William B. Acree, Jr., Judge
Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Senior Counsel; Thomas A. Thomas, District Attorney General; and James T. Cannon, Assistant District Attorney General, for the appellant, State of Tennessee.
No appellate brief filed on behalf of appellee. Steve Conley, Union City, Tennessee (at trial), for the appellee, Derishon Wadlington.
Alan E. Glenn, J., delivered the opinion of the court, in which Roger A. Page, J., joined. Thomas T. Woodall, P.J., filed a dissenting opinion.
ALAN E. GLENN, JUDGE
On June 3, 2013, the Obion County Grand Jury returned a six-count indictment charging the defendant with theft of property valued at $500 or less, shoplifting, misdemeanor possession of marijuana, introduction of a controlled substance into a penal institution, possession of a controlled substance in a penal institution, and possession of twenty-six grams or more of cocaine with intent to deliver or sell. She subsequently filed a motion to suppress all evidence of the marijuana and cocaine, arguing that her arrest was illegal.
At the August 30, 2013 suppression hearing, David Lowry testified that on February 8, 2013, he was an asset protection employee at Walmart in Union City. As he was walking through the men's clothing department that day, he observed the defendant "take a belt, remove the tag from it and put the belt on." The defendant then headed toward the doors, and Lowry alerted management and followed the defendant. He stopped her "[j]ust outside the first set of doors in the . . . vestibule" past the checkouts. He introduced himself to the defendant and told her he needed to talk to her about the merchandise she had. They then went to the office at the back of the store for him to complete documentation and recover the merchandise. Lowry asked the defendant for her address, and she initially said she was from Union City. The defendant told Lowry she did not have a driver's license or other proof of identification. Lowry said that during the course of their discussion, it came out that the defendant was from Illinois. Lowry explained that because the defendant had "no driver's license, no proof of who she [was], an out-of-state address, [the store's] policy [was] to call the police department at that time."
In response to questioning from the trial court, Lowry said that if the defendant had lived in Union City and had produced a Tennessee driver's license, he would have completed the paperwork for her to be entered into the store's worldwide database of people caught shoplifting and she would have been allowed to leave.
On cross-examination, Lowry said that if the defendant had tried to run, he would have called the police department, explaining that the store's policy was not to chase a suspect "due to several incidents that [had] happened in the past." He acknowledged that it was store policy not to initiate citizen's arrests if there was going to be a physical altercation.
Officer Robert Osborne with the Union City Police Department testified that he responded to a shoplifting call at Walmart on February 8, 2013. Officer Chucky Moran also responded to the scene. Mr. Lowry told Officer Osborne that the defendant had stolen an $8 belt and handed him the defendant's Illinois driver's license. The defendant was taken into custody, and after they got outside to the patrol car, Officer Osborne asked the defendant if she wanted the officers to put the money in her hand in her purse. The defendant said yes, and Officer Moran placed the money in the defendant's purse. As he did so, he noticed a small clear bag containing "a green leafy substance" in her purse. The officers then transported the defendant to the county jail and began the booking process. As the officers were inventorying the defendant's purse, they found "a large clear bag of white powder substance, " which field-tested positive for cocaine. The substance was subsequently sent to the crime lab and verified as being cocaine. The weight was determined to be 70.38 grams.
On cross-examination, Officer Osborne said he made the decision to arrest the defendant because: "She was from Illinois. Our policy states that it's only from the border counties in the [S]tate of Tennessee, people in Obion County with a proper identification, and nobody from out of state qualifies for a misdemeanor citation process." He explained that the policy was based on the "likelihood of them [out-of-state residents] not showing up for court."
Officer Chucky Moran with the Union City Police Department testified that he responded to the shoplifting call at Walmart, arriving at about the same time as Officer Osborne. Lowry advised the officers about what had happened, and the defendant gave the officers an out-of-state identification. The defendant was handcuffed and taken outside. Officer Moran carried the defendant's purse and explained what happened when they got outside to the parking lot:
[The defendant] had some cash in her hand. At the time, she was begging, "Please don't take me to jail; please don't take me to jail." I believe she said, "I have the money to pay for it." Well, unfortunately, we weren't able to do that. . . . I asked her if she wanted me to give her purse to her boyfriend because she was requesting to speak with him. . . . I looked back down toward the garden center, she said, "There he is right there in that van." So I motioned for him to come down to where I was at. I was going to give him the purse. He – when he saw me motion ...