FL Woman is Caught Shoplifting and her Petit Theft Morphs into a Felony Drug Possession when she’s caught with Xanax Concealed in her Ass ~ Call Michael A. Haber, Esq. @ 1-888-SHARK-8-1

Meet 28 year old Ginger Cooper of Bradenton, Florida.  That’s her mug shot below…

Ginger was caught by Walmart Loss Prevention attempting to steal several items from the Manatee County superstore (she had allegedly placed several items in her cart at the self-checkout counter without scanning them).  She was detained by store security and the cops were called to the scene.  

The news stories that I have read all claim that “a search incident to arrest” revealed Ginger to “be in possession of three Xanax pills in a plastic bag which were concealed in her buttocks”, but, and not withstanding several sources, I have my doubts…

All sources agree that Ginger had allegedly stolen $71.27 worth of merchandise, making hers a 2nd degree petit theft, and, although Walmart’s Loss Prevention allegedly saw it, the cops didn’t.  Thus Ginger’s misdemeanor offense was committed outside of the presence of law enforcement.  F.S. 901.15 (which you can view by clicking here) prohibits Florida cops from making a physical arrest for almost all misdemeanors unless the crime in question occurs in their presence.  The cops are authorized to make a paper arrest for such misdemeanor offenses but not a physical arrest, and, absent a physical arrest (a link to Haber PA’s YouTube Webisode on the difference between paper and physical arrests is below) there would be no need for a physical search, and certainly not one which would get the cops inside of Ginger’s pants and, more specifically, looking in her ass (that’s called a body cavity search….).  

A complete search for weapons or contraband would be authorized incident to a physical arrest, and a full blown clothes-less search, even a body cavity search, would have been authorized were Ginger taken to a holding facility (whether the police station or a local jail), but that cannot occur for most all misdemeanor offenses, and no way no how could that have occurred for a petit theft, most especially one that the cops didn’t observe for themselves.

So this takes us to my theories as to (a) what really happened and (b) how Ginger should defend the felony charge.  My theory (a) is that it was not either Ginger’s hands or her ass that got her in trouble, rather it was her mouth.  

I suspect that Ginger, feeling the pressure of being detained in a Walmart back office until real cops showed up and then being overwhelmed by the show of authority (a few Loss Prevention folks coupled with a few cops donning police regalia) in a small confined space simply fessed up to the Xanax being there.  This may have occurred sua sponte, albeit in response to the overwhelming display of authority, or it may have been in direct response to questioning under threat (whether actually spoken or perceived) of being searched incident to either arrest or booking (neither of which could lawfully have occurred), but in either event ultimately unknowing, unwilling and unlawful.  Thus (b): If the cops actually conducted a search of Ginger’s ass crack based upon her 2nd degree misdemeanor petit theft arrest (again, which could not involve a physical arrest) then suppression of the evidence should be a no brainer. If, as I suspect, there was no search and Ginger made an admission then her argument is that she was a victim of the circumstances, having made a confession / statement only so as to avoid what would have been an otherwise impermissble and unlawful search either by direct threat or based upon a show of authority.   Either way the Xanax recovered from Ginger’s butt crack should probably be suppressed,

Memo to the Folks:  Don’t be intimidated by the cops.  Be pleasant and polite (so as to avoid a “fall” down the stairs) but INVOKE and stand your ground.  You have no obligation to incriminate yourself and you have constitutional rights to both STFU and to speak to no one but your lawyer.