People v. Petty, 2017 IL App (1st) 150641 (May). Episode 356 (Duration 7:33)
Defendant was under investigation for a theft so police were within their rights to confiscate the UPC labels they saw on the floorboard of defendant’s car.
Defendant Ronald Petty was convicted by a jury of retail theft (720 ILCS 5/16A-3(b)) and sentenced to two years’ incarceration.
Best Buy had issued a storewide alert for an individual placing UPC labels for $42 Sony DVD players on $400 BluRay players and purchasing the more expensive players at the lower price.
They gave police the name on the receipts as well as video of the man making the purchases.
Man Is Back
Two hours after the report the man came back and the police were called. The police responded and waited in the parking lot. Defendant left the store and drove away without buying anything.
The officers ran the plates, which identified the car as belonging to Ronald Petty, whose license had been suspended.
The officers stopped him and arrested him for driving on a suspended license.
As Petty was being taken out of his car, an officer saw some UPC labels on a clipboard on the front passenger-side floorboard. When searched, Petty had a credit card in his name that ended with the same four numbers on the Best Buy receipt.
Petty argues that the trial court should have granted his motion to quash arrest and suppress uniform product code (UPC) labels seized from his car.
Petty maintains that the search of his car and seizure of the UPC labels was not justified as a search incident to an arrest as (i) the labels were unrelated to the traffic stop for driving on a suspended license, his only offense, and (ii) he was not within reach of his car at the time of the search. Defendant says he was not within reach of his car.
He says a warrantless search of an arrestee’s car may be conducted only when the arrestee is unsecured and within reach of the passenger compartment or there is a likelihood of discovering offense-related evidence. Arizona v. Gant, 556 U.S. 332, 351 (2009).
Petty asserts that the State cannot prevail on the latter basis
While noting that without the recovery of the UPC labels Petty would have been charged only with driving on a suspended license (625 ILCS 5/6-303(a)) and not retail theft, the trial court held that the active investigation for retail theft involving UPC labels justified the seizure.
The plain view doctrine allows the police to seize property without a warrant.
The doctrine requires that
(i) the officer was lawfully in a position from which he observed the property,
(ii) the incriminating character of the property was immediately apparent, and
(iii) the officer had a lawful right of access to the property.
The seizure of property in plain view involves no invasion of privacy and is presumptively reasonable, assuming that there is probable cause to associate the property with criminal activity.
Immediately Apparent Criminal Nature
Petty argues that the plain-view exception to the warrant requirement does not justify the seizure of the UPC labels, as the incriminating nature of the UPC labels was not immediately apparent.
However, in Brown, 460 U.S. at 741, where the United States Supreme Court discussed the concept of an object’s “immediately apparent” criminality, calling the phrase “very likely an unhappy choice of words.”
Rather, “probable cause is a flexible, common-sense standard. It merely requires that the facts available to the officer would ‘warrant a man of reasonable caution in the belief,’ that certain items may be contraband or stolen property or useful as evidence of a crime; it does not demand any showing that such a belief be correct or more likely true than false. A ‘practical, nontechnical’ probability that incriminating evidence is involved is all that is required.”
Petty is correct that at the time the officers saw the UPC labels they did not know as a certainty whether any of them pertained to Sony DVD players sold at Best Buy. But that is not meaningful because probable cause does not require proof beyond a reasonable doubt.
“Immediately apparent” or “probable cause” element does not require officer to “know” item he or she sees is contraband or evidence of crime.
The appropriate question is would a reasonable person in that officer’s position believe that a crime was being or had been committed?
A mere hunch is insufficient to support the seizure, but a police officer views the facts “through the lens of his police experience and expertise” and “may draw inferences based on his own experience in deciding whether probable cause exists.”
The reviewing court agreed with the trial court—Petty was stopped while under investigation for the retail theft as well as for driving on a suspended license.
There can be no dispute that the officers were following Petty as the next step in their investigation.
Petty claims his arrest was based entirely on driving on a suspended license. Not so.
More Than Just A Traffic Stop
As noted, the police officers were investigating Petty for possible retail theft, but they soon discovered he was driving without a valid license and initiated the traffic stop as a result. The officers had reason to believe that a more serious crime had occurred.
There need be only sufficient evidence to justify the reasonable belief that the defendant has committed or is committing a crime.
Bruni and his partner were experienced police officers on the tactical team investigating retail crimes.
They had just interviewed the Best Buy store manager and viewed the surveillance video.
The police officers could draw an inference from the totality of the information available to them that the UPC labels were related to the recent theft. The officers knew the credit card transaction was in Petty’s name and recognized Petty from the surveillance video in terms of his physical characteristics, his jacket, and the sling supporting his left arm.
Also, the store manager had told the officers that storewide thefts had occurred involving falsified bar codes. UPC barcodes were the modus operandi in accomplishing the theft. So otherwise innocuous UPC labels were incriminating because the thefts that had occurred involved the scanning of UPC labels on checkout, establishing more than a mere suspicion.