435 P.3d 1060
Ariz. Ct. App.2019Background
- Store loss-prevention observed Morris cut a sunglasses price tag, discard it, put the sunglasses on, and later place a purple-and-white boxed item plus condoms and an energy drink in a cart that had his backpack on top.
- Surveillance showed the boxed item visible in the cart, then obscured for ~80 seconds while Morris pushed the cart through displays; when he reappeared manipulating his backpack, the box was missing.
- At self-checkout Morris scanned other items but did not scan the sunglasses, and his debit card declined; officers then detained and escorted him to the loss-prevention office and formally arrested him for shoplifting.
- After discovering prior convictions, police searched Morris’s backpack and seized the condoms, energy drink, narcotics, paraphernalia, and a loaded firearm; Morris was indicted on weapons and drug charges.
- Trial court granted Morris’s motion to suppress, concluding there was no probable cause to arrest him because no one actually saw concealment and he had not passed the point of sale; the state appealed.
- Court of Appeals reviewed the video and evidence de novo as to probable cause and vacated the suppression ruling, holding probable cause existed for shoplifting by concealment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether police had probable cause to arrest for shoplifting by concealment | Video and loss-prevention report establish probable cause to believe Morris concealed store items in his backpack | No one actually saw concealment; the video is inconclusive and items may have been returned to shelves | Held: Yes — probable cause existed based on disappearance of the box during narrow time span plus conduct with sunglasses and other facts |
| Whether shoplifting requires passing the point of sale | State: concealment is itself "obtaining" under § 13-1805(A)(5); no need to pass point of sale | Morris: "obtain" requires transfer of ownership at point of sale; arrest premature before point of sale | Held: Concealment completes the offense under § 13-1805(A)(5); no point-of-sale requirement for concealment |
| Whether officers needed to eliminate innocent explanations before arrest | State: officers need only probabilities, not certainties; they need not rule out all innocent explanations | Morris: officers should have verified items weren’t returned to shelves or allowed only a Terry stop | Held: Probable cause standard tolerates reasonable innocent explanations; full elimination not required |
| Whether typical shopping with a bag would criminalize ordinary shoppers | Morris: interpreting concealment to occur on any placement in a bag would criminalize normal behavior | State: "Concealment" implies hiding or removing from notice; ordinary use of bags to carry visible goods is distinct | Held: Ordinary bag use is distinguishable; statute targets concealment aimed to remove items from notice/control |
Key Cases Cited
- State v. Aguilar, 228 Ariz. 401 (appellate court) (defines probable cause standard)
- State v. Sisco, 239 Ariz. 532 (appellate court) (probable cause requires probability, not proof)
- State v. Espinosa-Gamez, 139 Ariz. 415 (appellate court) (probable cause deals with probabilities, not certainties)
- Sulavka v. State, 223 Ariz. 208 (appellate court) (discusses common-law larceny as antecedent to shoplifting)
- State v. Sabartinelli, 23 Ariz. App. 436 (court may infer criminal intent from furtive gestures plus reliable information)
- State v. Turner, 142 Ariz. 138 (appellate court) (officer’s subjective belief immaterial; objective probable cause governs)