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 ...