Shoplifting

A mob theft or robbery may involve 30 or some organized thieves. They may wear masks and use violence to steal hundreds of thousands of dollars worth of items, often in broad daylight.

Most incidents of shoplifting are much less dramatic and use no threats or force. Shoplifting is a type of larceny, which means taking someone else's property without their permission and with the intent to deprive the owner of the property.

Most states punish shoplifting under their general larceny or theft statutes. Some states address shoplifting as a separate criminal offense. States may refer to the crime by different names, including retail theft and concealment of merchandise. In this article, we will look at the crime of shoplifting, its penalties, and legal defenses.

Elements of Shoplifting

Each state's laws vary, but shoplifting offenses generally include two basic elements:

• Willfully concealing or taking possession of items offered for sale
• The intent to deprive the items' rightful owner (typically the store) of possession of the items without paying the purchase price

This means that in many states, one can break shoplifting laws before heading out the door of the retail establishment with stolen goods. Simply concealing merchandise, inside or outside the store, will often be enough to be charged with a crime. One must have the intent to take the item from the store, but many states consider the act of concealing merchandise to be evidence of intent. In other states, a shoplifter must proceed past the point of sale to complete the crime.

Besides hiding an item to avoid paying for it, shoplifting laws also prohibit actions that avoid paying the full retail value of an item. This can include:

• Altering price tags
• Manipulating merchandise
• Putting goods into different containers or packaging to avoid paying all or part of the retail price

One common tactic used by shoplifters is to go through self-checkout lanes and scan certain items while only pretending to scan others. From a distance, it looks like the shoplifters are paying for purchases even though they are stealing as much as, or more than, they actually buy.

Sometimes a shoplifter works with a store employee to commit a version of the crime called under-ringing. The shoplifter comes through the checkout line of the employee with several items. The employee does not scan or ring up all the items. The shoplifter departs like a normal customer, often undetected.

Penalties for Shoplifting Charges

Like charges for other types of theft, the severity of shoplifting charges generally depends on the value of the merchandise involved. If a thief shoplifts certain items, such as drugs, guns, or other weapons, the severity of charges may increase. Law enforcement may also enhance charges for organized retail theft, which occurs when multiple people work together to commit repeated acts of shoplifting.

State laws often include a range of charges. This gives prosecutors discretion in deciding which charges to pursue in a given case. In many states, the range of shoplifting charges runs from low-level misdemeanors to differing degrees of felony charges. In a few jurisdictions, the State may not pursue the lowest level shoplifting offenses.

Often, the prosecutor will be able to support certain enhancements of the charges. Prior convictions in an offender's criminal record can play a large part in the severity of punishments on the table. First shoplifting convictions often result in a fine. However, depending on the state, misdemeanor shoplifting charges may also result in jail time or probation and community service. Felony theft convictions may result in longer jail sentences, terms of probation, and larger fines.

The criminal history of the shoplifter can make a big difference when it comes to how charges go forward. With no prior criminal record and stolen items of low value, an offender may face a petty theft charge. Such first-time offenders may avoid conviction through pretrial diversion programs. Once they complete a program, they may seek expungement to remove or conceal the offense from their criminal record.

In contrast, prior theft convictions may result in a more severe charge in many states. Contrary to popular belief, a shoplifter cannot negate criminal charges by returning merchandise. Likewise, an offer to pay for stolen goods may not resolve the case.

State Examples of Shoplifting Laws

California

California Penal Code section 459.5 sets forth a separate offense for shoplifting. A person shoplifts when they enter a commercial establishment during regular business hours with intent to commit a larceny. The value of the property taken or intended to be taken must be $950 or less.

The crime of shoplifting is a misdemeanor. Upon conviction, an offender faces up to 6 months in jail, a fine of $1,000, or both. With certain prior convictions, the prosecutor can elect to bring a felony shoplifting charge. In that situation, the penalties after conviction can increase to up to 3 years in prison, a $10,000 fine, or both.California also has laws against burglary and larceny (theft). In 2021, the state created the crime of organized retail theft. This crime addresses circumstances where two or more persons work in concert to steal merchandise from a store with intent to sell, exchange, or return the item(s) for value. If the value of the property is over $950, then the State can pursue it as a misdemeanor or felony. Upon conviction, the offender may face up to 1 year in jail.The court can also order as a probation condition that the offender stay away from retail establishments near the location of the crime.

New Jersey

New Jersey provides a comprehensive statute for shoplifting (N.J.S.A. section 2C: 20-11). It identifies several versions of the offense. The law prohibits possessing, transferring, or carrying away any store merchandise with the intent of depriving the store of the possession, use, or benefit of such merchandise or converting it to the use of the offender without paying the store the full retail value.

It also prohibits concealing store merchandise or altering or removing tags or labels to commit theft. Transferring an item from one container to another to commit a crime also violates the statute. The law also criminalizes the act of under-ringing a sale and taking a store shopping cart.

If the offense involves stolen items valued at under $200, then the crime is a disorderly persons offense. On a first-offense conviction, an offender must serve at least 10 days of community service and may also face up to 6 months in jail, a $1,000 fine, or both. If the offense involves $200 to under $500, then it becomes a fourth-degree felony crime. Upon conviction, an offender may face up to 18 months in prison, a $10,000 fine, or both.

If the value of stolen property is at least $500 but under $75,000, then the crime elevates to a third-degree felony offense. The convicted offender can see up to 3 to 5 years in prison, a $15,000 fine, or both. If the property value equals or exceeds $75,000, then the charge becomes a second-degree felony offense. At conviction, the offender faces 5-10 years in prison, a fine of $150,000, or both.

A second offense (and later offenses) will bring increased requirements for community service. Beginning with the third offense, the offender will face at least 90 days of mandatory jail time.

In-Store Detention of Shoplifters and Other Remedies

In most circumstances, criminals are unlikely to be captured in a citizen's arrest. Private citizens who hold people against their will risk civil and/or criminal liability for false imprisonment.

Shopkeeper's Privilege

Several states have statutes that permit store security guards or loss-prevention employees to detain suspected shoplifters. This principle, known as shopkeeper's privilege, serves to prevent thieves from escaping with stolen goods. It can also protect retail establishments from lawsuits.

Though these laws vary, store owners and their employees may detain an individual when they have probable cause to suspect the crime of shoplifting. Still, any detention of a suspected shoplifter must be reasonable in length and manner. Detentions without probable cause or that are unreasonable in time or manner may cause consequences for the store owners.

Acting on suspected shoplifting requires more than suspicion. It requires probable cause that someone committed a crime. Most states require that the store, its security guards, and employees have evidence that would lead a reasonable person to believe that shoplifting occurred or was in progress. If the store bases its detention of a suspected shoplifter on information from a non-employee informer, that informer must have a reasonable basis for suspecting shoplifting.

Courts determine whether a detention is unreasonable on a case-by-case basis. There are key factors that can nudge the detention into unreasonable territory. The three most common factors are:

• The length of detention
• The purpose of the detention
• The force used in the detention

A long detention to secure a confession or a release of store liability may appear unreasonable. Likewise, excessive force used during a detention may damage the store's credibility. Any unreasonable detention can leave the store and its employees open to liability for claims of false imprisonment or assault or battery.

In most cases, a store employee who detains a shoplifter will immediately call local police officers. The store will detain the suspect only long enough to turn them over to the authorities. Some retail stores may use off-duty police officers as store security to reduce the risk of civil lawsuits.

In New York, the shopkeeper's privilege is located in the state's general business code in section 218. It provides a defense to any claim of false arrest, false imprisonment, unlawful detention, defamation, assault, trespass, and invasion of civil rights that arises from the store or business detention of a suspect. The defense also applies to movie theaters that detain someone for unauthorized recording of a movie. As to retail stores, it applies:

• When the person's detention occurs on or in the immediate vicinity of the premises of the store
• When the purpose of the detention was an investigation about possession of an anti-security item or any merchandise.

The defense provides that the store and its agents can detain the suspected shoplifter in a reasonable manner and for a reasonable time. The goal is to permit investigation by its agents or by a police officer. The store must have reasonable grounds for the detention. This amounts to evidence that the suspect either possessed anti-security items or concealed possession of unpurchased merchandise.

The law provides that a reasonable detention time includes:

• Time necessary to permit the detained person to make a statement or refuse to make a statement
• Time necessary to examine store employees and records relative to the ownership of the merchandise and/or possession of the item or device

Civil Remedies

New York and other states also provide retail establishments with the ability to pursue civil remedies against suspected shoplifters. These remedies are separate and apart from any criminal prosecution.

Under New York General Obligations Law, at section 11-105, a retail store can bring a civil action against a shoplifter or an unemancipated minor shoplifter's parent or guardian. The store must prove by a preponderance of the evidence that the shoplifter committed a larceny of the store's property. If so, then the law provides that the shoplifter will be liable for the following:

• The retail price of the merchandise if it is no longer in merchantable condition, up to the amount of $1,500
• A penalty, not to exceed the greater of 5 times the retail price of the merchandise, or $75, but no more than $500

Legal Defenses for Shoplifting Cases

For those accused of shoplifting, there may be several defenses. There may also be opportunities for resolution by plea bargain. Here are some common defense strategies:

• No Intent: The defendant can claim that they took the property by accident or otherwise had no intent to deprive the store of the item or its value. This might come in a case that stems from the self-checkout scheme or a claim of under-ringing. If the defendant makes a prompt return of the item and offers to pay, such actions support the claim.
• Mistaken Identity: The criminal defense lawyer may question the source of the identification. They may point to a lack of clarity in store security camera footage. The recollection of the security guard or another witness may be portrayed as weak. If the defendant was not arrested at the scene and charged later, counsel may also present evidence of an alibi.
• Illegal Detention or Search: The defendant may claim that the stop and/or search of his person for stolen items was illegal under the Fourth Amendment of the U.S. Constitution. They may claim that the facts did not provide probable cause for an arrest or detention whether by the police or store security employees. If successful, they could obtain suppression of the evidence of the theft.
• Plea Bargain: Attorneys may provide evidence that raises questions about the full retail value of the items at issue. The value of the goods may provide the difference between a felony and a misdemeanor. Attorneys can also question whether prior convictions are appropriate for enhancement. For example, a court may strike enhancement where the prior conviction occurred without counsel and under circumstances where there is no evidence the defendant waived the right to counsel.

Get Legal Help With Your Shoplifting Charges

Depending on the laws of your state and specific factors, such as the value of stolen merchandise, the consequences of shoplifting charges could be serious. If you are facing shoplifting charges, you will want to consider legal advice on how best to proceed. Learn more about your specific situation by talking to an experienced criminal defense attorney near you today. A shoplifting attorney can put their expertise to work for you and your defense.