Arrest of vending machine thieves result of illegal search

An officer's search and subsequent arrest of a man violated the defendant's Fourth Amendment rights protecting against illegal search and seizure.

Typically, an officer is required to have a warrant to search a vehicle, but according to the U.S. Supreme Court's ruling in Terry v. Ohio, an officer may conduct a limited search if there is reasonable suspicion of criminal activity.

The Missouri Court of Appeals for the Western District reversed the circuit court's judgment against Marvin L. Goff because the appellate court found the arresting officer had nothing more than a hunch that Goff and another man were involved in criminal activity.

Goff and Patrick Trent were observed in front of vending machines at the locked south doors of the Gladstone Wal-Mart just before 3 a.m., July 24, 2001. The store is open 24 hours, but the south doors were locked at that time. The officer observing the two ran a check on the car's license plates, and was told that someone living at the address where the car was registered had several outstanding warrants. No other information was given. When the officer returned to the vehicle, the two men had left.

Officer Wayne Easley heard the notification that the car had been observed at the Wal-Mart, and that a person living at the address where the car was registered had several outstanding warrants. Easley discovered the vehicle in front of a HyVee store across the street. The men again were parked in front of the vending machines of that store. The HyVee is also a 24-hour establishment.

Goff got out of the car and entered the store while Trent parked the vehicle. Viewing the vehicle where he felt he was out of sight of Trent, he saw Trent open the hood of the car and place something inside. When Goff returned, Easley pulled behind the vehicle and turned on his emergency lights.

Easley later arrested Trent after discovering there was a warrant out for his arrest. He then conducted a pat-down search of Goff, and discovered a large object in his pocket. Easley asked Goff if he would remove the object and Goff complied, revealing a vending machine key. Easley found the key fit one of the HyVee vending machines. He then conducted a search of the vehicle, and discovered several other vending machine keys, tools and a large amount of quarters, dollar bills and other coins. The HyVee manager later confirmed that one of the vending machines in front of the store had a broken lock and the money had been removed.

Goff appealed his conviction by the circuit court, claiming his arrest was the result of an illegal search. The appellate court agreed, finding nothing would have led Easley to believe Goff was involved in criminal activity.

"Here, there is no question that the officers had a hunch that something was amiss," Judge Harold Lowenstein wrote. "The fact that evidence was found during the subsequent search of Goff and the car that supports the suspicion that he was engaged in illegal activity, i.e., stealing from or tampering with the vending machines, cannot be used to justify an unreasonable stop."

According to Terry, an officer must base his stop on reasonable suspicion, which is more than an "inchoate and unparticularized suspicion or hunch."

The appellate court noted that a series of events that singularly might be viewed as innocent acts could be construed as illegal activity when put together, but again felt the events of the evening did not give Easley the reasonable suspicion required to conduct the search.

Since both stores were 24-hour establishments, it is not viewed as suspicious if people enter the store, even for a minimal purchase as in this case, at such an early hour. According to U.S. v. Nicholas (10th Cir., 1996), the early hour is irrelevant if the business is open 24 hours a day because "the business maintained those hours because enough customers frequented it late at night and early in the morning to make its hours of operation appropriate."

"Goff was observed by Easley in front of a 24-hour HyVee, a place he undoubtedly had a right to be," Judge Lowenstein wrote. "While this could be a factor in some instances, its relevance under the facts in this case is highly diminished by the fact that the HyVee was open for business."

The appellate court also did not find that it was suspicious that the two were found in front of vending machines. The court determined that the purpose of vending machines is to allow people to access them at any time of day.

The court noted that Trent's placing something in the engine compartment of the vehicle would raise suspicion, but it was not sufficient to warrant a stop of the vehicle. The appellate court also found that the radio dispatch that the vehicle had been observed in front of the Wal-Mart, and that someone at the same address where the car was registered had outstanding warrants was also insufficient to support a search, because the dispatch did not identify the individual.

"As a general rule, the existence of a valid warrant based upon probable cause would provide a basis for the stop," Judge Lowenstein wrote. "This presumes, however, that the warrant is actually for an occupant of the vehicle. There is simply no evidence concerning for whom the warrant was issued, the description of that person or whether there was any reason to believe that the person was in the car."

The appellate court reversed the case and remanded it to the circuit court.

Copyright 2003 Dolan Media Newswires
Provided by ProQuest Information and Learning Company. All rights Reserved.