Crime, Shopping

Criminally Yours: Sticky Fingers, Trickier Than You Think

Shoplifting: It's embarrassing, humiliating, and what's worse, can give you a criminal record.

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justice-handcuffs-e1372182679824-300x286It’s embarrassing, humiliating, and what’s worse, can give you a criminal record.  It’s also very easy to do and get away with, until you don’t. It’s shoplifting — the great equalizer.

Some people shoplift because they need to.  They pocket dozens of the same product, like cold pills or condoms, then market them on the street, desperate for money.

Then there are the people who shoplift just for the heck of it.  The thrill, I suppose. They take items as stupid as $10 ear buds or as expensive as $500 blouses.  Some take advantage of the open policy department stores have of accepting returns without receipts and then issuing credit for the returned items.  When sales floor people work for commissions, it’s in their interest, too, to turn a blind eye to the details of the exchange.

So here’s what happens if you get arrested.  First, you’ll be approached by a store security agent.  They’re the guys at the door who check your bags or eye you when you’re shopping.  Bigger stores have cameras that dot the entire retail and storage areas. You’re likely to have been videotaped stealing the property.

Once stopped, they’ll bring you to a room, seize what you’re carrying, and call the police. Watch what you tell these security agents.  They are not the police so DO NOT have to read you your Miranda warnings — the ones that advise you that anything you say can and will be used against you, that you have the right to remain silent, and that you can have a lawyer present.

The rationale is complicated, but the short explanation is that only when you are in the custody of police, called “state actors,” must your warnings be read.  If police forget to read your Miranda rights, any subsequent admissions by you can be suppressed.

Security officers from, let’s say, Macy’s, can ask you whatever they want and whatever you tell them can be used against you automatically, not subject to suppression, unless you can show they are “state actors,” trained by police and acting as their agents. (A very difficult hurdle to overcome.)

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When the security guards ask you to sign a statement admitting to the crime — do not sign it!  Signing will get you nowhere.  Sometimes they’ll promise not to prosecute you if you sign and agree not to return to the store for a certain period of time.  More times than not, they will still call the police (especially if the value of the property you’ve stolen is more than minimal), and give whatever confession you’ve made over to them. This will then get to the prosecutor who will have a lock on the case against you.

So rule one:  When stopped by store security, tell them you’re admitting to nothing; you do not want to speak to them, and they can do whatever they have to do vis-a-vis the police.  They’re going to do that anyway.

If you do end up signing an agreement not to re-enter the store, beware. Re-entering within the time limit, even if you do need to actually buy something, constitutes a new crime.  Also, the prohibition may extend to all of their stores, and not just the one you shoplifted in.

If you re-enter the store after knowing you’re not supposed to, the crime is called trespass. If you’re caught shoplifting again in the same store after having received the trespass notice, the crime is called burglary, a much more serious offense.

If you’re dumb enough to get into a fight with the store security guard when he tries to wrest the stolen item out of your hand, even if you haven’t even left the store with the property, then the crime becomes robbery.

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A simple shoplifting is usually just a misdemeanor, petit larceny, provided the value of the property is under a certain amount.  Otherwise, a higher amount (and this varies state to state) could be considered grand larceny, another felony, although much less serious than burglary or robbery.

If you take something from someone else’s pocket without their permission, no matter the value, it’s automatically grand larceny.  If you rip a pocket while pulling out the wallet that doesn’t belong to you, it’s robbery.

So let’s walk through a straightforward shoplift.  Let’s say you go into Target and steal some batteries.  They catch you on the way out and bring you to their office.  Eventually you’ll get a court date, either through a summons or because police arrest you on the spot.

In court, you can plead guilty or fight your case.  If it’s a first arrest, you’ll likely get a good disposition, an offer to plea or admit to something that’s not a crime.  It will not give you a criminal record, but prosecutors will extract their pound of flesh.  You’ll probably have to go to a program to learn the error of your ways.  In New York, it’s cleverly called “stop-lifting.”  Or you’ll have to do some community service, or maybe both.  There could also be a fine.  Plus you’ll probably want to hire a lawyer just to have someone walk you through what to expect before you get to court.

So stealing those batteries could turn out to be pretty expensive. Plus, don’t count on going back to Target for a long time.

Toni Messina has been practicing criminal defense law since 1990, although during law school she spent one summer as an intern in a large Boston law firm and realized quickly it wasn’t for her. Prior to attending law school, she worked as a journalist from Rome, Italy, reporting stories of international interest for CBS News and NPR. She keeps sane by balancing her law practice with a family of three children, playing in a BossaNova band, and dancing flamenco. She can be reached at tonimessinalw@gmail.com or tonimessinalaw.com.

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