Probable cause questioned in shoplifting case

Emily Steppick, Volume 50 Staff Member

JUDGE KELLER DELIVERED THE OPINION OF THE COURT IN WHICH JUSTICE NEWELL CONCURRED, AND JUDGE WALKER AND JUDGE ALCALA DISSENTED.

The issue in this case was whether an officer had probable cause to arrest a customer for theft before she exited the store and despite her claims that she intended to pay for the items. The Court of Criminal Appeals held that the officer did have reasonable suspicion to search the customer’s purse and probable cause to arrest her because there were sufficient facts to support an inference of her intent to deprive the store of the merchandise and the officer was not required to credit her innocent explanation. Additionally, the Court of Criminal Appeals held that the evidence established was sufficiently reliable to establish that the officer had probable cause for theft even if it was not sufficiently reliable to proof the crime beyond a reasonable doubt.

In State v. Ford, Ford was indicted for possession of methamphetamine after an employee reported that Ford was concealing store merchandise. When the officer approached Ford initially, the officer noticed that Ford was pushing a shopping cart with other merchandise inside, and that her purse was inside the child seat of the shopping card covered by a jacket. When questioned about the employee’s allegations, Ford admitted to having merchandise in her purse but claimed she intended to pay for the items. In searching Ford’s purse, the officer found six small bags of methamphetamine. Ford’s counsel moved to suppress the evidence, claiming that the officer lacked probable cause. The Court of Appeals affirmed the trial court’s granting of the motion to suppress because the evidence was not sufficiently reliable to establish that Ford had the requisite intent.

This Court previously held in Hill v. State that theft occurs when a person unlawfully exercises control over another person’s property with intent to deprive the owner of the property. Further, under Groomes v. United States, an officer may infer intent to commit theft where the customer never attempted to exit the store because the customer placed some items in a purse and some in a shopping cart. Finally, this Court previously explained that in determining the existence probable cause, the officer must not credit a customer’s innocent explanations.

Here, the Court held that because Ford placed some merchandise in her purse and others in her shopping cart, the officer could infer Ford’s intent to commit theft and was not required to consider Ford’s claims of her intent to pay for the merchandise in determining whether he had reasonable suspicion and probable cause.

Judge Newell concurred.

Judge Walker and Alcala dissented, opining that this Court should have affirmed the Court of Appeals’ holding despite the its failure to afford “almost total deference” to the trial court’s decision to suppress the evidence. While the dissenting judges agreed that the officer had probable cause, they explained that he lacked sufficient reliable evidence to support a finding of reasonable suspicion to stop Ford initially.

State v. Ford, No. PD-1299-16 (Tex. Crim. Sept. 20, 2017).