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In close case, reasonable suspicion for detainment on possible shoplifting upheld

Facts

In 2016, Detective Tara Crum with Southaven P.D. was dispatched to the SuperLo Foods Store in response to a shoplifting call. A security guard had a female detained and said there was possibly a second individual in the area. The security guard helped officers locate the vehicle that possibly belonged to the shoplifters.

Officer Chase Joiner heard officers over the radio say they saw a rifle in the back of the car. Joiner parked his police car in the parking lot facing SuperLo to watch for the male suspect. Shortly thereafter, James Sims walked out of the restaurant Tiger Hot Wings and turned towards SuperLo. He took four or five steps and then stopped abruptly and started walking in the opposite direction when he saw the officers at SuperLo. Sims looked back towards Joiner five or six times which caused Joiner to drive his police car to Sims.

Joiner asked to talk to Sims who kept walking and said “what do you want?” Joiner then turned his lights on, got out of the car, and asked Sims several times to take his hands out of his pockets, which he refused to do. Eventually Sims put his hands on the car and Joiner conducted a pat down search for weapons. Based on the totality of circumstances, Joiner believed Sims was likely involved in the shoplifting and told him to put his hands behind his back (Joiner had not decided at this point to arrest Sims but wanted to identify him and confirm or dispel suspicions he had about Sims involvement in the shoplifting).

Sims cursed at the officer and refused to comply so officers physically moved his hands after a brief struggle and handcuffed him. It was later determined that 1) Sims was not involved in the shoplifting and 2) he had an outstanding warrant for contempt. Sims was arrested for disorderly conduct and resisting arrest. He was convicted in municipal court and again in county court.  The one year of probation was then affirmed by the circuit court. On appeal to MCOA, Sims argued there was no reasonable suspicion to stop him for shoplifting. MCOA affirmed.

Analysis

The United States Supreme Court provides a framework for determining whether reasonable suspicion exists at the time of a stop: When discussing how reviewing courts should make reasonable suspicion determinations, we have said repeatedly that they must look at the “totality of the circumstances” of each case to see whether the detaining officer has a “particularized and objective basis” for suspecting legal wrongdoing.

This process allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person.

The Mississippi Supreme Court has held that to stop and temporarily detain is not an arrest, and the cases hold that given reasonable circumstances an officer may stop and detain a person to resolve an ambiguous situation without having sufficient knowledge to justify an arrest. MCOA agreed with the county court Judge who said this was an ambiguous situation.

Officer Joiner was called to the crime scene where one person was under arrest for shoplifting, and the security guard indicated there “may” be a possible male suspect in the area. The officer observed Sims exit another business, walk toward the SuperLo (the location of the crime), then change direction.

The officer testified that Sims appeared “highly suspicious” and that he kept glancing back at the patrol car. At this point in time, the officer, who is at the scene of a crime where one person is under arrest and is advised that there may be other individuals involved in the crime, observes Sims change directions from the patrol car. Based on the totality of circumstances, Officer Joiner was justified in stopping Sims on suspicion of shoplifting.

Both Officer Joiner and Officer Croy testified they repeatedly asked Sims to remove his hands from his pockets, and he refused each time. They also testified that Sims was irate and cursing at them with people in the surrounding area. Both this court and the Mississippi Supreme Court have held these types of actions sufficient to prove disorderly conduct.

The evidence shows that Sims refused to place his hands behind his back and that the officers had to physically move his hands in order to handcuff him. Additionally, Officer Joiner testified that there was a brief struggle before Sims was placed in the patrol vehicle. This was sufficient for resisting arrest charge.

Even though Officer Joiner had reasonable suspicion to stop and question Sims, Sims had every right to refuse to answer the officer’s questions under the Fifth Amendment of the United States Constitution. Sims did not avail himself of that right. What Sims did not have a right to do is to conduct himself in a disorderly manner.

Thoughts

This was a 5-4 decision. When you have close cases:

1) Be sure to articulate in your police report every factor giving rise to reasonable suspicion (in this case the nexus you believe exists between Sims and the suspicion that he was involved in the shoplifting) and

2) Be detailed in your report.  If he ignored your orders to take his hands out of his pockets seven times, don’t write he refused my orders on several occasions to take his hands out of his pockets. Absent a body recorder or dash cam, you will never remember two years from now what you meant by several. Instead, write that he refused on seven separate occasions (or at least seven occasions if you can’t remember exactly how many times, etc.).

These little things can be the difference between a conviction and a suppression.

 

https://courts.ms.gov/Images/Opinions/CO151408.pdf