        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                         Assigned on Briefs August 5, 2014

           STATE OF TENNESSEE v. DERISHON WADLINGTON

                   Appeal from the Circuit Court for Obion County
                 No. CC-13-CR-127     William B. Acree, Jr., Judge


               No. W2013-02521-CCA-R3-CD – Filed March 18, 2015


The defendant, Derishon Wadlington, was detained in a Union City Walmart store, after
being observed attempting to leave the premises without paying for a belt, which she had
in her possession. Union City police officers were called and, taking the defendant into
custody, found a small clear bag containing a green leafy substance in her purse. At the
jail, her purse was inventoried and found to contain a large clear bag containing a white
powder, which was determined to be cocaine. She filed a motion to suppress the
evidence, which was granted after the trial court determined that the officers lacked
probable cause to arrest the defendant. The State appealed. Following our review, we
conclude that the officers had probable cause to arrest the defendant, and, thus, the
subsequent search of her purse was lawful. Accordingly, we reverse the trial court’s
suppression of the evidence and remand the matter to the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed and
                                    Remanded

ALAN E. GLENN, J., delivered the opinion of the court, in which ROGER A. PAGE, J.,
joined. THOMAS T. WOODALL, P.J., filed a dissenting opinion.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Senior Counsel;
Thomas A. Thomas, District Attorney General; and James T. Cannon, Assistant District
Attorney General, for the appellant, State of Tennessee.

No appellate brief filed on behalf of appellee. Steve Conley, Union City, Tennessee (at
trial), for the appellee, Derishon Wadlington.

                                       OPINION

                                        FACTS
        On June 3, 2013, the Obion County Grand Jury returned a six-count indictment
charging the defendant with theft of property valued at $500 or less, shoplifting,
misdemeanor possession of marijuana, introduction of a controlled substance into a penal
institution, possession of a controlled substance in a penal institution, and possession of
twenty-six grams or more of cocaine with intent to deliver or sell. She subsequently filed
a motion to suppress all evidence of the marijuana and cocaine, arguing that her arrest
was illegal.


       At the August 30, 2013 suppression hearing, David Lowry testified that on
February 8, 2013, he was an asset protection employee at Walmart in Union City. As he
was walking through the men’s clothing department that day, he observed the defendant
“take a belt, remove the tag from it and put the belt on.” The defendant then headed
toward the doors, and Lowry alerted management and followed the defendant. He
stopped her “[j]ust outside the first set of doors in the . . . vestibule” past the checkouts.
He introduced himself to the defendant and told her he needed to talk to her about the
merchandise she had. They then went to the office at the back of the store for him to
complete documentation and recover the merchandise. Lowry asked the defendant for
her address, and she initially said she was from Union City. The defendant told Lowry
she did not have a driver’s license or other proof of identification. Lowry said that during
the course of their discussion, it came out that the defendant was from Illinois. Lowry
explained that because the defendant had “no driver’s license, no proof of who she [was],
an out-of-state address, [the store’s] policy [was] to call the police department at that
time.”

       In response to questioning from the trial court, Lowry said that if the defendant
had lived in Union City and had produced a Tennessee driver’s license, he would have
completed the paperwork for her to be entered into the store’s worldwide database of
people caught shoplifting and she would have been allowed to leave.

       On cross-examination, Lowry said that if the defendant had tried to run, he would
have called the police department, explaining that the store’s policy was not to chase a
suspect “due to several incidents that [had] happened in the past.” He acknowledged that
it was store policy not to initiate citizen’s arrests if there was going to be a physical
altercation.

       Officer Robert Osborne with the Union City Police Department testified that he
responded to a shoplifting call at Walmart on February 8, 2013. Officer Chucky Moran
also responded to the scene. Mr. Lowry told Officer Osborne that the defendant had
stolen an $8 belt and handed him the defendant’s Illinois driver’s license. The defendant
was taken into custody, and after they got outside to the patrol car, Officer Osborne asked
the defendant if she wanted the officers to put the money in her hand in her purse. The
defendant said yes, and Officer Moran placed the money in the defendant’s purse. As he

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did so, he noticed a small clear bag containing “a green leafy substance” in her purse.
The officers then transported the defendant to the county jail and began the booking
process. As the officers were inventorying the defendant’s purse, they found “a large
clear bag of white powder substance,” which field-tested positive for cocaine. The
substance was subsequently sent to the crime lab and verified as being cocaine. The
weight was determined to be 70.38 grams.

        On cross-examination, Officer Osborne said he made the decision to arrest the
defendant because: “She was from Illinois. Our policy states that it’s only from the
border counties in the [S]tate of Tennessee, people in Obion County with a proper
identification, and nobody from out of state qualifies for a misdemeanor citation
process.” He explained that the policy was based on the “likelihood of them [out-of-state
residents] not showing up for court.”

       Officer Chucky Moran with the Union City Police Department testified that he
responded to the shoplifting call at Walmart, arriving at about the same time as Officer
Osborne. Lowry advised the officers about what had happened, and the defendant gave
the officers an out-of-state identification. The defendant was handcuffed and taken
outside. Officer Moran carried the defendant’s purse and explained what happened when
they got outside to the parking lot:

             [The defendant] had some cash in her hand. At the time, she was
      begging, “Please don’t take me to jail; please don’t take me to jail.” I
      believe she said, “I have the money to pay for it.” Well, unfortunately, we
      weren’t able to do that. . . . I asked her if she wanted me to give her purse
      to her boyfriend because she was requesting to speak with him. . . . I
      looked back down toward the garden center, she said, “There he is right
      there in that van.” So I motioned for him to come down to where I was at.
      I was going to give him the purse. He – when he saw me motion for him,
      he cut out of the parking lot and went out, and the last time I saw him going
      out was by Shell Pockets. He went out across the parking lot.

             At that time, I asked [the defendant] what she wanted me to do with
      the money that she had, because she had some money in her hand. . . .
      [S]he said we could put it in her purse. When I unzipped the purse to drop
      the money in it, I saw a clear plastic baggie with marijuana down inside the
      purse. It was just a little shallow pink purse.

       On cross-examination, Officer Moran said it was the police department’s policy to
place the defendant under arrest in lieu of the cite-and-release procedure because she was
from out of state.



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       At the conclusion of the hearing, the trial court took the matter under advisement
and subsequently entered an order granting the defendant’s motion to suppress evidence
of the drugs found in her purse.

                                            ANALYSIS

       The State argues that the trial court erred in concluding that the defendant’s arrest
was illegal and that the evidence must be suppressed.

       When this court reviews a trial court’s ruling on a motion to suppress, “[q]uestions
of credibility of the witnesses, the weight and value of the evidence, and resolution of
conflicts in the evidence are matters entrusted to the trial judge as the trier of fact.” State
v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). The party prevailing at the suppression
hearing is afforded the “strongest legitimate view of the evidence and all reasonable and
legitimate inferences that may be drawn from that evidence.” State v. Keith, 978 S.W.2d
861, 864 (Tenn. 1998). The findings of a trial court in a suppression hearing are upheld
unless the evidence preponderates against those findings. See id. However, the
application of the law to the facts found by the trial court is a question of law and is
reviewed de novo. State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001); State v. Crutcher,
989 S.W.2d 295, 299 (Tenn. 1999); State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997).

       In granting the defendant’s motion to suppress, the trial court determined:

              Generally, a citation should be issued when there is a misdemeanor
       violation unless one of the eight circumstances in which a citation should
       not be issued exists. T.C.A. § 40-7-118, State v. Chearis, 995 S.W.2d 641
       (Tenn. Crim. App. 1999) and State v. Walker, 12 S.W.3d 460 (Tenn. 2000).
       Herein, the undisputed evidence is that the defendant was arrested because
       she did not live in a county which is contiguous to Obion County. This is
       not a circumstance enumerated under the statute. Accordingly, the Court
       finds that a citation should have been issued to the defendant. Thus, the
       search was invalid, and the evidence is suppressed.

      For reasons which we will explain, we disagree with the trial court’s granting the
defendant’s motion to suppress.

       Tennessee Code Annotated section 40-7-116(a)(3) provides:

              A merchant, a merchant’s employee, or agent or a peace officer who
       has probable cause to believe that a person has committed or is attempting
       to commit the offense of theft, as defined in § 39-14-103, may detain that
       person on or off the premises of the mercantile establishment if the
       detention is done for any or all of the following purposes:

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             ....

             (3) To inform a peace officer of the detention of that person, or
      surrender that person to the custody of a peace officer, or both[.]

       Section 40-7-116(b)(2) defines “probable cause” for arrest of the detained person
to include a “[r]eport of personal observation from another merchant.” Section 40-7-
118(b)(1) provides, in part, that an officer “who has taken custody of a person arrested by
a private person for the commission of a misdemeanor, shall issue a citation to the
arrested person to appear in court.” However, such a citation “may” be issued if the
arrest was for “theft which formerly constituted shoplifting, in violation of § 39-14-103.”
Tenn. Code Ann. § 40-7-118(b)(3)(A).

        Taking these statutes together, we conclude that Walmart asset protection
employee David Lowry detained the defendant, after observing her attempting to leave
the premises with a belt for which she had not paid, to inform Union City police officers,
upon their arrival, of the facts and surrender custody to them. Since the defendant was
charged with theft, they exercised their discretion to take her into custody, rather than
issue a citation. We have reviewed de novo the trial court’s application of the law to the
facts and respectfully disagree with the court’s conclusion that the search of the
defendant’s purse was invalid and the evidence should be suppressed. In our view, the
defendant’s detention by the Walmart asset protection employee, arrest by the Union City
police officers, and search of her purse fully complied with the relevant provisions of
Tennessee Code Annotated sections 40-7-116 and 40-7-118, as we have set out.
Accordingly, we reverse the order of the trial court granting the defendant’s motion to
suppress and reinstate the charges against her.

                                        CONCLUSION

        Based upon the foregoing authorities and reasoning, we reverse the judgment of
the trial court, reinstate the charges against the defendant, and remand the matter to the
trial court for further proceedings consistent with this opinion.


                                                _________________________________
                                                ALAN E. GLENN, JUDGE




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