March 18, 2015
STATE OF TENNESSEE
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 for him, he cut out of the parking lot and went out, and the last time I saw him going out was by Shell Pockets. He went out across the parking lot.
At that time, I asked [the defendant] what she wanted me to do with the money that she had, because she had some money in her hand. . . . [S]he said we could put it in her purse. When I unzipped the purse to drop the money in it, I saw a clear plastic baggie with marijuana down inside the purse. It was just a little shallow pink purse.
On cross-examination, Officer Moran said it was the police department's policy to place the defendant under arrest in lieu of the cite-and-release procedure because she was from out of state.
At the conclusion of the hearing, the trial court took the matter under advisement and subsequently entered an order granting the defendant's motion to suppress evidence of the drugs found in her purse.
The State argues that the trial court erred in concluding that the defendant's arrest was illegal and that the evidence must be suppressed.
When this court reviews a trial court's ruling on a motion to suppress, "[q]uestions of credibility of the witnesses, the weight and value of the evidence, and resolution of conflicts in the evidence are matters entrusted to the trial judge as the trier of fact." State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). The party prevailing at the suppression hearing is afforded the "strongest legitimate view of the evidence and all reasonable and legitimate inferences that may be drawn from that evidence." State v. Keith, 978 S.W.2d 861, 864 (Tenn. 1998). The findings of a trial court in a suppression hearing are upheld unless the evidence preponderates against those findings. See id. However, the application of the law to the facts found by the trial court is a question of law and is reviewed de novo. State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001); State v. Crutcher, 989 S.W.2d 295, 299 (Tenn. 1999); State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997).
In granting the defendant's motion to suppress, the trial court determined:
Generally, a citation should be issued when there is a misdemeanor violation unless one of the eight circumstances in which a citation should not be issued exists. T.C.A. § 40-7-118, State v. Chearis, 995 S.W.2d 641 (Tenn. Crim. App. 1999) and State v. Walker, 12 S.W.3d 460 (Tenn. 2000). Herein, the undisputed evidence is that the defendant was arrested because she did not live in a county which is contiguous to Obion County. This is not a circumstance enumerated under the statute. Accordingly, the Court finds that a citation should have been issued to the defendant. Thus, the search was invalid, and the evidence is suppressed.
For reasons which we will explain, we disagree with the trial court's granting the defendant's motion to suppress.
Tennessee Code Annotated section 40-7-116(a)(3) provides:
A merchant, a merchant's employee, or agent or a peace officer who has probable cause to believe that a person has committed or is attempting to commit the offense of theft, as defined in § 39-14-103, may detain that person on or off the premises of the mercantile establishment if the detention is done for any or all of the following purposes:
. . . .
(3) To inform a peace officer of the detention of that person, or surrender that person to the custody of a peace officer, or both[.]
Section 40-7-116(b)(2) defines "probable cause" for arrest of the detained person to include a "[r]eport of personal observation from another merchant." Section 40-7-118(b)(1) provides, in part, that an officer "who has taken custody of a person arrested by a private person for the commission of a misdemeanor, shall issue a citation to the arrested person to appear in court." However, such a citation "may" be issued if the arrest was for "theft which formerly constituted shoplifting, in violation of § 39-14-103." Tenn. Code Ann. § 40-7-118(b)(3)(A).
Taking these statutes together, we conclude that Walmart asset protection employee David Lowry detained the defendant, after observing her attempting to leave the premises with a belt for which she had not paid, to inform Union City police officers, upon their arrival, of the facts and surrender custody to them. Since the defendant was charged with theft, they exercised their discretion to take her into custody, rather than issue a citation. We have reviewed de novo the trial court's application of the law to the facts and respectfully disagree with the court's conclusion that the search of the defendant's purse was invalid and the evidence should be suppressed. In our view, the defendant's detention by the Walmart asset protection employee, arrest by the Union City police officers, and search of her purse fully complied with the relevant provisions of Tennessee Code Annotated sections 40-7-116 and 40-7-118, as we have set out. Accordingly, we reverse the order of the trial court granting the defendant's motion to suppress and reinstate the charges against her.
Based upon the foregoing authorities and reasoning, we reverse the judgment of the trial court, reinstate the charges against the defendant, and remand the matter to the trial court for further proceedings consistent with this opinion.
Thomas T. Woodall, P.J., dissenting.
I respectfully dissent. First, I disagree with the majority's conclusion that the trial judge determined that the officers lacked probable cause to arrest Defendant. The majority quoted the trial court's ruling, which I interpret bases the decision on the fact that the officers took Defendant into custodial arrest in violation of a statute that mandated the issuance of a citation in lieu of custodial arrest. The trial court's reasoning was that since custodial arrest was invalid, the resulting search was invalid, and thus all evidence found in Defendant's purse must be suppressed.
I generally agree with most of the majority's interpretation of the facts elicited at the suppression hearing, but I must set forth additional facts in the record which support my conclusion that the trial court's judgment must be affirmed.
Mr. Lowry, the Wal-Mart employee, merely introduced himself to Defendant. She voluntarily accompanied him to her office at his request to complete some paperwork. Implicit, if not explicit, in Mr. Lowry's testimony was that he had not detained Defendant within the ordinary usage of the term "detention, " and it was absolutely explicit that he had not placed Defendant under a "citizen's arrest."
Not surprisingly, the trial court made a specific factual finding that "Mr. Lowry did not make a citizen arrest." Mr. Lowry further testified, as noted by the trial court, that it was "Wal-Mart policy that if one refused to talk with him [Mr. Lowry] and left, he [Mr. Lowry] would call the police and not attempt to detain the person." The evidence clearly supports the trial court's factual finding. If Mr. Lowry would not have attempted to place Defendant in detention if she had suddenly walked away from his office, he obviously had not already placed her in detention.
Also, it appears to me that the State has waived this court's determination that the warrantless arrest of Defendant by the police officers is justified by Mr. Lowry making a citizen's arrest, or a "probable cause detention" pursuant to T.C.A. § 40-7-116, which is relied upon by the majority.
At the suppression hearing, the State argued that the case was not a citizen's arrest, and I submit this includes a citizen's "detention" based upon the T.C.A. § 40-7-116 definition of "probable cause, " as shown in the following exchange:
THE COURT: And if I understand your [Prosecutor's] argument correctly - - and I'll hear from [Defense Counsel] in just a moment in rebuttal - - you're arguing that this was not a citizen's arrest, and under 40-7-118 (3) (a), the officer had the option of issuing a citation or arresting the person, but then they had to look at the nine factors set forth under that same statute and if one of those factors apply, they could arrest the person?
[The Prosecutor]: That is correct, Your Honor. That's what the statute says.
THE COURT: That's your argument?
[The Prosecutor]: Yes, sir.
In both the written motion to suppress and at the hearing on the motion in this case, Defendant argued that her arrest was illegal based on two theories: (1) that Defendant was unlawfully arrested without a warrant pursuant to T.C.A. § 40-7-103 and/or (2) that Defendant should have been issued a citation rather than being placed under custodial arrest pursuant to T.C.A. § 40-7-118.
The trial court's reliance on T.C.A. § 40-7-118 - "Use of citations in lieu of continued custody of an arrested person" - was misplaced. This statute does not become applicable unless and until: (1) a police officer has arrested someone for a misdemeanor committed in the officer's presence or (2) the officer takes custody of someone arrested by "citizen's arrest" for committing a misdemeanor. The proof at the suppression hearing, with the trial court's factual finding that there was not a citizen's arrest by Mr. Lowry, results in T.C.A. § 40-7-118 (and T.C.A. § 40-7-116) not even applying in this case, and the trial court erred in relying on the language of § 40-7-118 to grant Defendant's motion to suppress. However, the correct result was reached because there was an illegal arrest under T.C.A. § 40-7-103 (a) - "Grounds for arrest by officer without warrant" - because the misdemeanor offense was not committed in the officers' presence. T.C.A. § 40-7-103(a) sets forth eleven situations where an officer can arrest a person without an arrest warrant. An arrest for misdemeanor theft or shoplifting not committed in the presence of the officer is not one of those situations. Officer Moran testified that neither he nor Officer Osborne witnessed the commission of the shoplifting offense. Accordingly, Defendant's arrest was unlawful. The law is settled that,
If an individual is unlawfully placed under custodial arrest, a subsequent search is also unlawful and evidence seized as a result of the unlawful search is suppressed and not admissible in the prosecution's case in chief. See Wong Sun v. United States, 371 U.S. 471, 484-85 ; see also State v. Clark, 844 S.W.2d 597, 600 (Tenn. 1992).
State v. Walker, 12 S.W.3d 460, 467 (Tenn. 2000).
It is correct that Officer Moran observed the marijuana in Defendant's purse when he placed Defendant's cash into the purse at Defendant's request and/or with her consent. However, Officer Moran would not have had possession of the purse, and Defendant would not have been handcuffed behind her back (as the testimony showed) and unable to place the money into the purse herself, except for being in custody as the result of an unlawful arrest. Accordingly, the State is not entitled to rely on "consent" or "plain view" to justify the searches of the purse because they were a direct result of the unlawful arrest. Wong Sun v. United States, 371 U.S. 471, 487-88 (1963); United States v. Richardson, 949 F.2d 851, 858 (6th Cir. 1991).
Mr. Lowry could have made a citizen's arrest pursuant to T.C.A. § 40-7-116 (A merchant, merchant's employee, or agent or a peace officer who has probable cause to believe that a person has committed or is attempting to commit the offense of theft, as defined by § 39-14-103, may detain that person on or off the premises of the mercantile establishment if the detention is done for any or all of the listed purposes.). However, this was not done in this case. In any event, the precise language of T.C.A. § 40-7-116 does not exempt the application of T.C.A. § 40-7-103 that an officer is prohibited from making a warrantless arrest of a person who has committed a misdemeanor theft and the offense was not committed in the officer's presence. Statutes pertaining to criminal law must be strictly construed in favor of person charged with a crime. State v. Odom, 928 S.W.3d 18, 30 (1996). T.C.A. § 40-7-116(A)(3), relied upon by the majority, simply authorizes a merchant to detain a person when the merchant has probable cause to believe the person has committed a theft (felony or misdemeanor) for the purpose, as applicable in this case, of surrendering the person to the custody of a "peace officer." The language of the statute presumably applies only to lawful custody. There is nothing in T.C.A. § 40-7-116 which repeals the provisions of T.C.A. § 40-7-103 which prohibit the warrantless arrest of Defendant in this case. Perhaps it should. That, however, is under the authority of the General Assembly and not this Court.
The State, therefore, is not entitled to relief in this appeal. The judgment of the trial court should be affirmed.