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"Shoplifting" generally refers to the theft of merchandise from a store or place of business. Shoplifting is a type of larceny, which simply means taking someone else's property without their permission and with the intent to deprive the owner of the property taken.

Though states punish shoplifting under their general larceny or theft statutes, many states have enacted statutes to specifically address shoplifting. States may refer to the crime by different names, including "retail theft" and "concealment of merchandise."

Elements of Shoplifting

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

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

Crucially, this means that in many states, one can break shoplifting laws without attempting to get out of a store 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 for the crime to be considered completed.

In addition to hiding an item to avoid paying for it, shoplifting laws also make it illegal to take actions to avoid paying the full purchase price for 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 purchase price

One of the most common tactics 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 (or more than) they buy.

Severity of Shoplifting Charges

Like charges for other types of theft, the severity of shoplifting charges generally depends on the value of the goods involved. If certain items, like drugs, firearms, or incendiary devices are shoplifted, the severity of charges could be increased. Charges are also enhanced for organized retail theft, which occurs when multiple people work together to commit repeated acts of shoplifting.

States laws often include a range of charges, and can give 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 up to differing degrees of felony charges. In a few jurisdictions, the lowest level shoplifting offenses are not prosecuted criminally at all.

Often, the prosecutor will be able to allege certain enhancements of the charges. Prior criminal convictions, specifically prior theft convictions, regularly play a large part in the severity of punishments on the table. Shoplifting convictions typically result in only a fine, but, depending on the state, misdemeanor charges may also result in jail time or probation. 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 are brought and cases are resolved. In some states, prior theft convictions automatically result in a more severe charge. On the other hand, first-time offenders are often allowed to avoid conviction through pretrial diversion programs.

Contrary to popular belief, a shoplifter cannot avoid criminal charges simply by returning merchandise or offering to pay for stolen goods.

In-Store Detention of Shoplifters

In most circumstances, criminals are unlikely to be captured in a citizen's arrest, and private citizens generally may not legally hold people against their will without facing civil and even criminal liability for false imprisonment. However, many states have enacted statutes specifically authorizing stores and their employees to detain suspected shoplifters in certain circumstances. This principle (known as shopkeeper's privilege) serves to prevent thieves from escaping and to protect stores from lawsuits claiming false imprisonment or false arrest.

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

Acting on suspected shoplifting requires more than just suspicion; it requires probable cause. Most states require that the store or its employees have evidence that would lead a reasonable person to believe that shoplifting had 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.

Whether a detention is considered unreasonable is determined on a case-by-case basis, but there are factors that can quickly nudge the detention into unreasonable territory. The three most common factors are:

  • The length of detention
  • The purpose of the detention
  • The force that was used

An excessively long detention continued for the purpose of securing a confession or a release of store liability, or the use of excessive force would be considered unreasonable under many states' laws. An unreasonable detention could leave the store and its employees open to liability for false imprisonment and possibly other claims, such as assault or battery. Typically, a store employee that detains a shoplifter will immediately call the local police and detain the suspect only long enough to turn them over to the authorities.

Get Legal Help With Your Shoplifting Charges

Depending on the laws of your state and specific factors, such as the value of any items shoplifted, the consequences of shoplifting charges could be serious. If you are facing shoplifting charges, you will want to learn more about your specific situation by talking to a criminal defense attorney near you today.

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