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What Do you Do if Caught Shoplifting in California?

This article sets forth some practical information about detentions and arrests for theft by shoplifting or video recording in a movie theater.

California Penal Code section 490.5 provides merchants and librarians (collectively "merchants" here) with several privileges against those accused of petty theft of merchandise (defined as personal property capable of manual delivery, displayed, held or offered for retail sale by a merchant). It separately provides theater owners with similar privileges if a person brings a video recording device onto theater premises. Those privileges provided to merchants and theater owners include the following:

  • Suing the parents of an unemancipated minor for damages not less the $50 and not more than $500, plus costs;
  • Suing the unemancipated minor for the retail value of the merchandise if it is no longer in marketable condition;
  • Detaining the person for a reasonable time for the purpose of conducting an investigation whenever the merchant has probable cause to believe the person to be detained is attempting to unlawfully take or has taken merchandise from the merchant's premises and the same for a theater owner if he or she has probable cause to believe the detainee was operating a video recording device within the premises;
  • The merchant and theater owner (believing a recording device was used) has the right to demand the item or recording be surrendered by the detainee;
  • If the detainee refuses to produce the item or recording, the merchant and theater owner may conduct a limited and reasonable search to include packages, shopping bags, handbags or other property in the immediate possession of the detainee, but not to include the person's clothing; and
  • In the process of detaining a suspect, the merchant, theater owner and library employee may use reasonable nondeadly force necessary to protect himself or herself and prevent the escape of the detainee or the loss of merchandise.

What is the best preventative action to take before being detained by a merchant or theater owner or arrested and/or charged with theft? Obviously, don't do the crime! This should alleviate all, but mistaken beliefs (or such detentions and searches motivated by malice) by merchants, etc. that any items were taken or video recording attempted on theater premises.

What should you do if detained by a merchant, theater owner or library employee? First, it would be unwise to resist the detention with any force. You might be separately charged with an even more serious violent offense if you do use force. Possibly, equally bad, you may be hurt by several employees coming to the searching employee's aid against you. Conversely, if the merchant or theater owner is trying to use an unreasonable degree of force against you, e.g. you are not resisting, but he or she is attempting to hurt you, you are privileged to defend yourself. It all depends upon the reasonableness of each party's acts at that moment.

What should you do if requested to be searched? There is a bit of a catch-22 with permitting a search. If you permit the search, since you probably do not then know what the merchant observed, you may be consenting to and waiving your right to sue later for the unlawful infringement on your privacy rights. If the merchant does not have probable cause to search you and you consent to the search, you just let the merchant do something he or she could not otherwise have done. At the very least, you may be reducing your damages to only the detention and not the search. Conversely, the law gives the merchant the right to search you if he or she has probable cause to believe an item was taken. So, the best choice is not to resist the search as to the items allowed above per section 490.5,, but not to permit a search of your clothing worn NO MATTER WHAT because the clothing on you is not within the scope of a permitted search (absent your consent). Do not volunteer to permit the search, merely acquiesce to it and protest clearly. If you had tried to take no items, you may decide to sue later and you will also be taking the best actions to preserve your possible lawsuit.

What If you had taken an item? Then, permitting the search at all may reveal its presence and you could be helping to make the government's case against you in a criminal prosecuted. You will simply have to make a split-second decision whether to non-violently resist the search by keeping your possessions from the merchant because this could also result in a worse tactical position. If, for example, the item is ultimately found, but you might have had a legal defense as to knowledge of the presence of the item, then resisting a search could be used to show a guilty state of mind (in fairness, your lawyer could also put on evidence to show that it was resisted because of the reason any of us might, you ordinarily have the right not to be invaded). If, however, the item is not found and no admission or other witnesses exist to prove theft, then there can be no successful prosecution and it is unlikely that the merchant will unlawfully detain you further. In any event, you may not leave the premises with the item. Doing so, clearly is theft and this article is certainly not attempting to aid or counsel the successful commission of the crime. Indeed, if the item is discovered still on the premises, there may be defenses to theft. So, don't take it in the first instance, and if you have, don't leave the premises with it.

What do you do after being detained and released by a merchant or theater owner of, upon your release, if you are arrested by police for theft? SEEK THE ADVICE OF COUNSEL IMMEDIATELY AND DON'T BE PENNYWISE AND POUND FOOLISH! There are serious consequences for theft, including imprisonment for up to six (6) months in the county jail and a mandatory fine between $50 and $1000 for each violation.

After merchant detention (but, before or in lieu of any arrest), you may receive civil demand letters from persons purporting to be or who are actually part of law firms that collect the civil damages and penalties authorized by PC s. 490.5. If so, contact a lawyer immediately. Some of those letters unethically and unlawfully threaten jail or criminal prosecution. It constitutes the crime of extortion to threaten criminal penalties if monetary damages are not paid. While some lawyers may counsel ignoring these letters because of the extreme statistical data suggesting that no action will be taken against you. I prefer the approach of analyzing those letters on a case-by-case basis. It may be that those issuing the letters should, themselves be dealt with by government authorities. A criminal defense lawyer is in the best position to make that evaluation and determine the best course of action for you. If you pay the demand, it is, at least, possible to use the fact of your payment against you in a criminal prosecution. So, make an informed decision.

Good luck in your case.

Categories: Criminal Defense

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