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State v. Morris

Court of Appeals of Arizona, Second Division

January 22, 2019

The State of Arizona, Appellant,
v.
Raymond Verbon Morris III, Appellee.

          Appeal from the Superior Court in Pima County No. CR20174598001 The Honorable Casey F. McGinley, Judge

          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.

          OPINION

          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 (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 ...

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