Thursday, August 12, 1999

Colorado Court of Appeals People v. Foster 97CA1340

Decided December 24, 1998.

   This case is an older one, and it's a Colorado appellate court decision, so ordinarily I probably wouldn't write it up.  But today, we're going to make an exception.  Why, you ask?  Because it makes me look stupid.

   So the other day (a few months ago, actually), I got into an argument with someone at work.  I was handling a shoplifting case where the suspect assaulted a loss prevention officer who tried to stop him.  I figured that since the taking of the vacuum (it was a Dyson, taken from the store rather than from the guard) occurred separately from the assault (he pepper sprayed the guard on his way out of the store), we essentially had a misdemeanor theft and a misdemeanor assault.  The person who I was arguing with said that shoplift + assault = robbery.  Our argument fell short of namecalling, but only because I left the room before this guy started calling me names.

   And the worst part?  He was right.  Shoplift + assault does in fact = robbery.  Thus saith a 1998 decision of the Colorado Court of Appeals.  Ladies and gentleman, it is my pleasure to introduce you to the case of People v. Foster.

   A loss prevention officer noticed that Foster (who he recognized from previous shoplifts) was stealing bed skirts.  Yes, bed skirts of all things.  Anyway, he chased after Foster to recover the merchandise, and almost got him.  He grabbed onto Foster's jacket as Foster was getting into a van, and Foster slammed the door on his hand.  Three times.  The guard let go, and away Foster went.

   Foster was eventually arrested for and convicted of robbery.  He appealed, making much the same argument that I did.  He argued that the bed skirts (really?) weren't taken from the person or presence of the security guard, and therefore this was not a robbery.  Now, clearly, the bed skirts were not taken from the guard's person.  They were taken from a shelf.  But presence?  The Court of Appeals, relying on People v. Bartwoshesk... bartsoshew...BARTOWSHESKI, held that property is taken from the presence of another where it is "so within the victim's reach, inspection, or observation that he or she would be able to retain control over the property but for the force, threats, or intimidation directed by the perpetrator against the victim."

   The court also mentioned other cases where it had held that the theft of the contents of a safe in a movie theater was not robbery, because the clerk did not have access to or authority over the contents of the safe.  However, in this case, the security guard was specifically charged with maintaining (or regaining) control of store merchandise.  He was essentially the custodian of the property of the store, to include bed skirts.  To also include bed skirts which he would have been able to retain control of were it not for the fact that Foster crushed his hand in a car door.

   So there you have it: shoplifting + assault = robbery.  Foster's conviction stands.

Thursday, August 5, 1999

US Supreme Court Knowles v. Iowa 97-7597

Decided December 8, 1998.

   Knowles was stopped for speeding, in Iowa.  The law in Iowa authorized police to make a full custodial arrest for traffic offenses, or to simply issue a traffic ticket.  The law in Iowa also specified that if an officer chose to issue a traffic ticket rather than make an arrest, this would not diminish their authority to conduct an "otherwise lawful search."

   So Knowles was issued a ticket for speeding, and the officer conducted a "search incident to citation" of the car, discovering weed and a pot pipe.  Knowles was then arrested for real, and later convicted.  He appealed his conviction.  The US Supreme Court explained that the reasoning for the incident to arrest exception to the warrant requirement is twofold: 1- to protect the officer by allowing him to disarm his prisoner, and 2- to preserve evidence for later use at trial.  The court held that these justifications do not apply to issuing citations to the same extent that they do to making arrests, so they don't really merit an exception to the warrant requirement here.  The court noted that in cases where there is a heightened concern for safety, there are other doctrines that justify a search (but those didn't apply to this stop, either).

   Iowa's "search incident to citation" law was held to violate the 4th amendment, the evidence was suppressed, and Knowles' conviction was reversed.