Page 25 - TPA Journal January - February 2018

valid search incident to arrest. The State also II. ANALYSIS
claimed that the trial courts findings on the
motion to suppress were incomplete and needed Under the appellate standard of review on Fourth
supplementation. Amendment claims, an appellate court is to afford
almost total deference to the trial courts
The court of appeals rejected the States claim that determination of historical facts, and of
the conversation was part of a consensual application-of-law-to-fact issues that turn on
encounter but agreed with the State that the police credibility and demeanor, while reviewing de
officer had reasonable suspicion to stop appellee novo other application-of-law-to-fact issues.
to ask her questions. Consequently, the court of
appeals held that the trial court erred in concluding For an arrest to be justified under the Fourth
that the officer lacked reasonable suspicion to Amendment, a police officer must have probable
conduct a stop. cause to believe that the suspect has committed or
is committing an offense.Probable cause is a
Next, the court of appeals addressed whether the fluid concept that cannot be readily reduced to a
trial court erred in concluding that the officer neat set of legal rules. Although the concept
lacked probable cause to arrest.6 The court of evades precise definition, it involves a
appeals recognized that the carrying away of reasonable ground for belief of guilt that is
property is not an element of theft in Texas.7 particularized with respect to the person to be
Nevertheless, the court noted appellees statement searched or seized. It is a greater level of
that she was going to pay for the items in her purse suspicion than reasonable suspicion but falls far
before she left the store, and the court said, short of a preponderance of the evidence standard.
Nothing else in the record indicates any actions If an officer has probable cause to arrest, a search
or statements by Ford indicating that she was incident to arrest is valid if conducted
attempting to appropriate the items with an intent immediately before or after a formal arrest.
to deprive Dollar General of the merchandise, as
she had not left the store and also had other items Appellee was suspected of committing the offense
in a shopping cart that she intended to purchase. of theft. Theft occurs when a person unlawfully
The court of appeals also stated, The only appropriates property with intent to deprive the
evidence introduced by the State to support its owner of the property. Appropriate means,
arguments was [the officer s] police report and among other things, to acquire or otherwise
narrative, which the trial court referenced in its exercise control over property other than real
ruling by expressly finding that the reliability and property. In Hill v. State, we recognized that a
accuracy of the information given by [store customer of a store can exercise control over
employee] to [the officer] regarding the items and property with an intent to deprive, even if the
information contained within [the officer s] customer has not yet left the store with the
report was questionable. property. In that case, the defendant did so by
concealing the property (a handgun) underneath
Based on these remarks, the court of appeals held his shirt. In Groomes v. United States, the District
that the trial court was within its discretion to of Columbia Court of Appeals addressed a fact
conclude that the State failed to meet its burden of situation very much like the one confronting us
establishing probable cause to arrest. today, where the defendant had some items in a
shopping cart and other items concealed in her
purse. The DC court found the facts sufficient to

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