State of Florida v. Thomas Marvin Lord , 150 So. 3d 260 ( 2014 )

IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
STATE OF FLORIDA, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D14-577
THOMAS MARVIN LORD,
Appellee.
_____________________________/
Opinion filed October 13, 2014.
An appeal from the Circuit Court for Escambia County.
Jan Shackelford, Judge.
Pamela Jo Bondi, Attorney General, and Kristen Bonjour and Trisha Meggs Pate,
Assistant Attorneys General, Tallahassee, for Appellant.
William B. Richbourg, Pensacola, for Appellee.
PER CURIAM.
The State appeals an order granting the motion to suppress filed by appellee,
Thomas Marvin Lord. We reverse.
The evidence at the suppression hearing showed that asset-protection
employees at a Walmart in Pensacola called an officer from the Pensacola Police
Department, Lieutenant Chuck Mallett, who was working off-duty for the store,
and told him there had been a shoplifting incident in which a person had stolen
spark plugs and had left the store. Lt. Mallett got into his unmarked police vehicle
and drove around the parking lot until he saw the pickup truck the Walmart
employee was describing that was by then headed for an exit. Lt. Mallett called for
another patrol unit and as he followed the truck, he observed the female passenger
reach around and conceal something behind the driver’s seat. When a marked
police vehicle driven by Officer Patrick Burns joined the pursuit, the truck
markedly picked up speed and turned into a parking lot and sped behind the
buildings, but found no escape route. The officers activated their blue lights and
took appellee and his co-defendant, Shanna Gayle Johnson, into custody.
Lt. Mallett drove the truck back to the Walmart parking lot to search it, and
Officer Burns followed with the suspects handcuffed in his vehicle. Lt. Mallett was
in touch with the asset-protection employees and began to look for the spark plugs
and any other property that might have been stolen. He found a drill in a box
behind the driver’s seat, a bag containing spark plugs, and a bag containing
syringes, which he believed were drug paraphernalia.
Officer Burns testified that he had advised defendants that they were
suspected of retail theft. After the items were discovered, he arrested them for
misdemeanor retail theft and said he would be taking them to jail after the loss-
2
prevention people had made their statements. At some point after the store items
were found, either Officer Burns or someone else looked inside a soft-sided cooler
located in the truck bed and found a portable methamphetamine lab. The officers
moved the truck to a back corner of the parking lot away from the general public,
and an investigator from the sheriff’s department trained in dismantling meth labs
arrived and took over.
The circuit court granted defendant’s motion to suppress, because under
sections 901.15 and 812.015, Florida Statutes (2013), the officers did not have the
authority to make the initial stop based only upon information provided by
Walmart employees who had witnessed a theft. The court further concluded that
even if the stop had been lawful, the officers had exceeded the permissible scope of
their search by looking inside the cooler in the truck bed. Under Arizona v. Gant,
556 U.S. 332 (2009), they were permitted to search only for evidence of the
offense the suspects were arrested for, which was retail theft, yet the officers had
continued to search after finding the drill and the spark plugs when there was
nothing suggesting that defendants had put anything in the cooler in the truck bed
before they left the Walmart parking lot.
The trial court erred as a matter of law by concluding that the officers did
not have the authority under section 812.015 to arrest defendants. See State v.
Daniels, 2014 WL 1976269 (Fla. 5th DCA 2014) (in an appeal of an order on a
3
motion to suppress, statutory interpretation is reviewed de novo). Further, the trial
court erred as a matter of law by concluding that the officers did not have the
authority under Gant to search the cooler located in the truck bed. See State v.
Taylor, 79 So. 3d 876 (Fla. 4th DCA 2012) (the court conducts de novo review of
the application of Gant to the facts of the case).
The circuit court erred by concluding that section 901.15 applied in this case
by either supplanting or modifying section 812.015(4). Section 901.15(1) permits
an officer to arrest without securing a warrant when the suspect has committed a
felony or misdemeanor “in the presence of the officer,” or when the arresting
officer has been provided information from a fellow officer sufficient to satisfy
paragraph (1). See State v. Boatman, 901 So. 2d 222 (Fla. 2d DCA 2005). It is
undisputed that the Walmart loss-prevention employees in the case at bar cannot be
characterized as fellow officers.
This case was instead controlled by section 812.015(4), which specifically
addresses warrantless arrests for retail theft and provides, in part, that a law
enforcement officer “may arrest, either on or off the premises and without warrant,
any person the officer has probable cause to believe . . . has committed theft in a
retail or wholesale establishment.” There is no conflict between the statutes, which
have coexisted for over five decades and apply in different circumstances. See
Rodriguez v. State, 29 So. 3d 310, 313 & n.5 (Fla. 2d DCA 2009). The legislature
4
expressly enacted the retail theft provision to meet a need that was not being
addressed by section 901.15, “to give the merchant authority to detain a suspect
and the arresting officer additional authority under the law to make an arrest for a
misdemeanor,” namely “shoplifting items of small value which constitute the bulk
of the crime.” Ch. 29668, Laws of Fla. (1955).
Accordingly, the officers in this case were authorized to stop and arrest
defendants based upon information provided by the Walmart employees. See
Weissman v. K-Mart Corp., 396 So. 2d 1164 (Fla. 3d DCA 1981) (affirming
summary judgment for K-Mart under sections 812.015(3) and (5) in a suit for false
arrest for shoplifting, because the officer had probable cause to arrest the plaintiff
under section 812.015(4) based on information provided by K-Mart’s security
officer). Defendants have not argued that the officers lacked probable cause for the
stop; only that they lacked authority under section 901.15(1).
The trial court further erred by concluding that the United States Supreme
Court in Arizona v. Gant prohibited the officers from looking inside the cooler in
the truck bed as part of their search incident to arrest. The Supreme Court held in
Gant that “[p]olice may search a vehicle incident to a recent occupant’s arrest only
if the arrestee is within reaching distance of the passenger compartment at the time
of the search or it is reasonable to believe the vehicle contains evidence of the
5
offense of arrest.” Gant, 556 U.S. at 351 (emphasis added).1 Because both the cab
and the truck bed of defendants’ truck were reasonable places for defendants to
have secured items stolen from Walmart, the officers were justified in searching
both.
The scope of a search depends upon the nature of the offense of arrest.
“[W]hen probable cause only concerns one specific item and the police know
where that item is within the automobile, their warrantless search cannot extend to
other areas of the car.” State v. Betz, 815 So. 2d 627, 631-32 (Fla. 2002). In our
case, however, Lt. Mallett was told that spark plugs had been taken. When he
searched the cab he found a drill. Then, a loss-prevention employee came out to
the truck, said the drill was a Walmart item, and identified the bag of spark plugs.
There was no testimony that any Walmart employee told either officer that no
other items had been stolen from Walmart. Indeed, they said a package containing
a drill had been opened in the store and the drill “dumped inside the store,” leading
the employees to believe that defendants had removed parts from the package that
were presumably secreted in the truck. There was no evidence that Lt. Mallet had
stopped searching the truck after finding the spark plugs and drill. The officers
1
Gant was arrested for driving with a suspended license, and after police
locked him in a patrol car, they searched his vehicle and found a gun and cocaine.
The Supreme Court concluded that the search of the passenger compartment of
Gant’s car was unlawful because he was locked in the patrol car and thus was not
within reaching distance, and because there could be no evidence in his car related
to the offense of arrest for not having a valid driver’s license.
6
were not precluded from looking in the cooler in the truck bed simply because no
one had actually observed one of the defendants put something in the cooler. Lt.
Mallett had not seen the defendants get into the truck but had only located them as
they were driving out of the Walmart parking lot. The fact that Officer Burns told
defendants they were looking at misdemeanor charges based upon the items thus
far discovered did not mean the officers’ hands were tied and they could not then
search a container in the truck that had been overlooked. The kind of Walmart
items that had already been found, as well as drill parts, could have been concealed
in a cooler and thus it was a reasonable container to search for further evidence
related to the offense of arrest.
REVERSED and REMANDED for further proceedings.
PADOVANO, THOMAS, and CLARK, JJ., CONCUR.
7