How Is Probable Cause Established in a Shoplifting Case?
Shoplifting cases may have relatively lower exposure to punishment compared to other criminal offenses, but the legal, social, and personal consequences may impact a person’s life for a long time. Aside from criminal penalties that typically include fines, imprisonment, or both, the offender will get a criminal record that will be stored in the national database and accessed at any time by the police, public institutions, employers, and landlords. The stigma carried by a shoplifting conviction, which can limit housing, education, and employment opportunities, can be difficult to overcome.
As a lawyer, the best advice I can offer you about shoplifting is never to do it. Then again, if you have taken an item without paying for it and got caught, intentionally or accidentally, that doesn’t mean all is lost. There are several factors in a criminal case that will affect the final outcome, and knowing what to expect will significantly increase your chances of getting acquitted. Here is what you need to know if you’ve been caught shoplifting.
Tougher Anti-Theft Policies Aim to Reduce Fraud
In their attempt to reduce losses due to theft, some retailers have adopted a “zero-tolerance” policy to prosecute shoplifters. Major retail stores such as Best Buy, Sears, Office Depot, or Macy’s aggressively pursue suspected shoplifters and almost never hesitate to press charges and obtain restitution. Tougher anti-theft policies and procedures are also meant to help retailers avoid litigation for false imprisonment and false arrest, reduce insurance expenses, and discourage future theft.
Sometimes, in order to obtain a written statement from the suspect confessing to the crime, security officers may promise they will not call the police or press charges against them. In reality, stores almost always contact the local police after catching shoplifters; only those without a “zero-tolerance” policy may let the suspect off with just a store ban if the items are of minimal value or if the suspect is under the age of 18.
Most retailers are well aware that showing compassion may encourage criminal activity by suggesting to potential shoplifters that they will be treated with lenience, and that’s the last thing they want. Consequently, they try to maintain a strict policy of prosecuting all offenders, no matter their age, the reasons they had, or the amount stolen.
Steps in Establishing Probable Cause
In order for a store to use its right to detain a customer, a security officer or an employee must first establish probable cause by following these steps:
1) Observe the suspect approach a store item. The security officer must make sure that the customer hasn’t brought an outside item into the store for the purpose of a refund or exchange and failed to check in at the service desk first.
2) Observe the suspect select a store item. Security personnel often misunderstand when they see a shopper put an item into their purse, bag, or pocket, and fail to realize it is the client’s personal property that was brought inside the store.
3) Observe the suspect carry away, hide, or consume a store item. Shoplifting can occur when unpaid merchandise is concealed in bags or inside pockets, worn by the suspect after having its tags removed, or consumed prior to purchasing it. In cases where observation is impossible (such as inside fitting rooms), security officers the merchandise taken inside the fitting room with the merchandise returned.
4) Observe the suspect without interruption. Shoplifters who believe they have been spotted stealing may attempt to discard the concealed merchandise and no longer have it on them when approached at the exit. To prevent losing sight of the shoplifter or the hidden items, guards must keep them under uninterrupted and continuous observation.
5) Observe the suspect failing to pay for the store items. Some shoplifters will go past cashiers and attempt to exit the store without paying for the concealed merchandise, while others may go through checkout and pay for some items, but not for the ones they have hidden. Security personnel must ensure the concealed items have not been retrieved or paid for prior to leaving the store.
6) Approach the suspect once he/she passes the cashiers and exits the store. By doing so, the security guard eliminates any possibility that the suspect has the intention of paying for the concealed merchandise before leaving the store.
Even if the security personnel have reasonable cause to detain you, they must do so in a reasonable manner or risk criminal liability for false imprisonment and possibly other crimes. That means the investigation should be conducted on or near the store’s premises, and detention should be obtained through reasonable use of force and only for the time necessary to establish guilt.
You Have the Right to Legal Representation
The best thing to do in this situation is exercise your right to not incriminate yourself and ask to have your lawyer present. Confessing to the crime will significantly limit your defense options in court, so do yourself a favor and admit to nothing. For instance, if the store claims they have witnesses who saw you steal an item, your lawyer can question that witness’s credibility in court, especially if his/her statement is the basis on which probable cause was established.
Remaining silent and requesting representation is also the best way to convince security officers to release you if they don’t have a strong case against you, since most will not be willing to risk false imprisonment charges. On the other hand, being belligerent and fighting with the security officer or requesting to see the warrant wouldn’t do you much good, either, so try to maintain your calm as much as possible.
No matter what the specifics of your case, contact a criminal defense lawyer as early in the process as possible to give yourself the chance to have the charges lowered to a petty theft or dropped altogether.
About the Author
Andrew Weisberg is a former felony prosecutor who now serves as a defense attorney in Skokie, Illinois. He has extensive experience in handling all types of criminal cases, from sex offenses and violent crimes to theft-related crimes and domestic violence.