Shoplifting and loss prevention officers – possible defense to shoplifting cases

Can the conduct of the loss prevention personnel from the store be a defense in your case?

In any theft case, you absolutely must have an attorney representing you.  Although initial punishment may not be severe for a first time offense, the long-term consequences can be quite harsh.  Avoiding a conviction if at all possible should be your goal.  There may be factual defenses (they can’t prove the elements of the offense such as no merchandise was recovered or you didn’t exit the store), legal defenses (Miranda issues with your statement to the police) or other defenses.

The store personnel (loss prevention, security or whatever other label they’re using) aren’t held to the same search issues as the police are under the Fourth Amendment.  A search by a private person that would have been illegal by law enforcement may be legally admissible if done by a private citizen such as the store security.  That doesn’t mean they can do whatever they want, however.

The store security must still follow the law

In my experience, there is one particular store that is notorious for doing things improperly. (Others do it, as well, too)  Often times, they will look through the slats in the door into the dressing rooms. They’re not shy about it either. They’ll write in their report that essentially, they spied on you in the changing room. That’s nice, but totally illegal.

Penal Code section 647(k)(1):
Any person who looks through a hole or opening, into, or otherwise views, by means of any instrumentality, including, but not limited to, a periscope, telescope, binoculars, camera, motion picture camera, or camcorder, the interior of a bedroom, bathroom, changing room, fitting room, dressing room, or tanning booth, or the interior of any other area in which the occupant has a reasonable expectation of privacy, with the intent to invade the privacy of a person or persons inside. This subdivision shall not apply to those areas of a private business used to count currency or other negotiable instruments.

It’s a misdemeanor for them to look into a private area such as the dressing rooms. There’s no “theft prevention” exception. They’re invading the privacy of anyone in the dressing room. If push comes to shove, their witness from the store may have to take the Fifth Amendment and decline to testify unless granted immunity by the prosecutor. Otherwise, if they testified that they looked into the fitting room, they’d be admitting to a misdemeanor and subject to prosecution.   With no witness, they don’t have a case.

I can only imagine how many times a day they do this… and are wrong.

When we meet to discuss your case, we can talk about all aspects of your case – the store personnel, the police… everything.

Joe Dane

info@joedane.com

714.532.3600

 

For more information, see these links:

Shoplifting FAQs (with video)

Is a petty theft charge a big deal?

Shoplifting and theft defenses

Difference between grand theft and petty theft

 

Caught shoplifting, but police were not called. Do I have to pay a fine?

I have been asked many times about this exact scenario.  You were caught or detained for shoplifting, but they did not call the police.  They said you’d get a letter in the mail with a fine that you had to pay.  What is that? Do you have to pay them?  Can they still call the police and press charges later?

Can the store still “press charges” for shoplifting if they didn’t call the police when it happened?

If the police weren’t called initially, the odds are very much in your favor that there will be no criminal charges and therefore nothing on your record to deal with. Could they call the police and make a police report later? Sure, but that is by far the exception to the rule.  Keep in mind that the store cannot “press charges” – only the District Attorney or City Attorney can file criminal charges.  All the store could do would be to make a police report that may get forwarded to the prosecutor’s office for review and the possible filing of charges, but the store cannot directly file criminal charges against you.

They said I had to pay a fine. 

The “fine” they’re referring to is a civil demand letter. The Penal Code authorizes a merchant to “demand” up to $500 plus costs in a shoplifting incident. The store itself may send something from their “legal department” or they may contract with one of a few law firms that handle these situations. These firms are typically out of state and only have a local attorney’s name on their letterhead as “of counsel” so they can legally make these demands in California.

There was one particular firm out of Florida that was quoted in the Wall Street Journal as saying they send out over a million of these “demand” letters a year. Of those, they filed less than 10 lawsuits. Not 10 percent. Not ten thousand. Ten. The odds are overwhelming that if you just ignore their demands, nothing will come of this. They may send several letters, each sounding more intimidating and with increasing amounts they’re asking for. If you keep ignoring them, they have to make a choice – let it go (they almost always do) or actually follow through.

What’s their option if they really want to go forward? Small claims court. Here’s the thing though… attorneys cannot and do not get involved in Small Claims cases. So – these law firms are essentially all bark and no bite. In fact, some advertise their services on their websites as “litigation free” collections. That’s code for “we don’t actually sue people.” Instead, they operate on volume and intimidation, hoping people will just send in the hundreds of dollars they’re asking for. Some people pay thinking it will make a criminal case go better (it won’t necessarily) or that they “have” to (you don’t).

I’ve personally never heard of anyone actually being sued for ignoring the civil demand letters. If you are that one in a million and they do file a small claims case against you, you can always settle then. Or… you can go to trial and make them prove their damages. I assume they got all the merchandise back undamaged, put it right back on the shelf and aren’t really out any money aside from the time it took the store personnel to deal with you. What’s that? Maybe a couple of employees wages for a couple of hours? Can they get filing fees against you? Sure. Even if you went to trial and lost, the amount you’d be ordered to pay will in all likelihood be far less than they’re demanding in their letters.

I participate in several state-wide and national online forums for attorneys.  The overwhelming consensus is to ignore these letters. They may send a few and may even call you if they have your phone number. Screen your calls and ignore the letters. It costs that law firm to send out the letters – and that comes out of their cut of any money sent in – so they won’t waste too much on you if you don’t respond.

Should you get one of these demand letters and you still have questions, a phone call or face to face meeting with a local criminal defense attorney will probably set your mind at ease as you continue to ignore the demands.

Don’t ignore everything though…

Be sure you know what you’re ignoring though. If you do get something from either the District Attorney, City Attorney, the police department or the court, don’t ignore those. That means there is in fact something going on that you have to deal with. If you are charged, it’s time for a lawyer. If you’re under investigation, it’s also time for a lawyer and to keep your rights in mind – say nothing to anyone about this except your attorney in confidence.

If theft charges are filed against you…

Now, it’s time for action.  A theft conviction can have lasting, negative consequences.  Even in the face of strong evidence against you, there may be legal, factual or other defenses.  Our goal is to help you avoid a conviction if at all possible.  If charges are filed, it’s time for a lawyer.  Give me a call or send an email to discuss your case.  We can set up a time to talk and discuss what your options are and how best to proceed.

Joe Dane

info@joedane.com

714.532.3600

Will a traffic ticket violate my probation?

When you’re placed on probation – either formal or informal, one of the typical terms is that you “violate no law”.  People often ask whether a traffic ticket will violate your probation.

 

In general, a traffic ticket will NOT violate your probation.

Under Penal Code section 19.8, an infraction is not grounds to violate your probation or parole.  There are a few exceptions though.  If your citation involved any of the following offenses, it could be the basis to violate your probation or parole:

Business & Professions (BP) Code 25658 – furnishing alcohol to a minor

BP 25658.5 – minor attempting to purchase alcohol

BP 25661 or 25662 - use of a fake ID to get alcohol or Minor in possession of alcohol “MIP”

Any drug charges under the Health & Safety Code

Vehicular manslaughter under Penal Code 191.5 or 192.5

Public intoxication (“Drunk in public”) under Penal Code 647(f)

Reckless driving under Vehicle Code 23103

“Wet reckless” under Vehicle Code 23103.5

Under 21 driving with 0.05% blood alcohol level under Vehicle Code 23140

and driving on a suspended license under Vehicle Code 14601.1

 

Even though those offenses are infractions, they are the exception and they can be used for the court to find you in violation of your probation.  If you’re on probation and get cited for any of those offenses, in addition to the punishment for the new ticket, you could also be in violation of your probation.  Any violation potentially subjects you to additional punishment for not following the terms of your probation.  If you are found in violation, the judge could sentence you up to the maximum for the original case.

To discuss your case, give me a call or send an email:

Joe Dane

714.532.3600

info@joedane.com

What is summary (or informal) probation?

If you’re convicted of a misdemeanor in Orange County, you may be placed on a period of probation.  Typically, for misdemeanor probation, it is informal probation.  This is sometimes called “summary probation” or “bench probation”.

How does informal probation differ from formal probation?

Formal probation

With formal probation, you typically have a probation officer you must report to.  Sometimes, there are phone reporting requirements (you must call on a set schedule to check in with them) or kiosk check-ins where you have to sign into their computer system to “check in”.  On formal probation, there may be a probation officer assigned and if you’re subject to search and seizure, they can come out and do a random probation compliance check and search all your belongings and your house.  There is also a cost of formal probation – you have to pay to be supervised.

Informal probation

I always explain that informal probation is kind of like the honor system.  When you’re sentenced to informal probation, the judge will impose several terms and conditions of your probation.  They may include things like “violate no law”, fines and fees that you have to pay to the court, community service or CalTrans or classes you must attend.  As long as you complete those things and stay out of trouble, your probation just goes along without a problem.  Informal probation only becomes a problem if you fail to complete something you were ordered to do or if you pick up a new case.

For example, if you were ordered to do 80 hours of community service, but either didn’t go sign up for the community service to begin with or you didn’t complete the number of hours you were required to do by the deadline, the community service office will notify the court of your issue and it’s likely a warrant will be issued for your arrest for failing to comply with the terms of your probation.  A misdemeanor probation violation warrant is usually issued for $15,000.

If you do all the things you’re supposed to do and you stay out of trouble, your probation will automatically expire and terminate without you having to do anything.  A reason it wouldn’t is if you failed to complete something and the court revoked your probation prior to it expiring.

How long does probation last?

Typically, probation is for three years.  In some cases, we can work out a “terminal disposition” meaning there would be no probation after the conclusion of the case.  Other times, a shorter term of probation can be negotiated (typically a year or 18 months).  In still other cases, it may start off as three years of probation with an agreement that either after a certain period of time or after you’ve completed something (community service, etc.) you can get your probation terminated and over.

If you have questions about terminating your probation, dismissing (“expunging”) your convictions or if there’s a warrant for your arrest for violating probation in Orange County, give me a call or send an email.

Joe Dane

714.532.3600

info@joedane.com

 

See also:  Will a traffic ticket infraction violate my probation?

Can two people use the same defense attorney?

What if you and a friend (or husband/wife) got arrested together and charged with the same crime?  Can you use the same defense attorney to represent both of you?

 

The short answer is “maybe”.

If there is no overlap (such as you blame him and he blames you), one attorney *may* be able to represent you both. You’ll need to discuss it with the attorney you select and will need a written waiver of conflict signed by all.

Where this gets tricky is if there is even the potential of a conflict of interest.  If the two of you either have different charges, if one made a statement and the other didn’t (especially if one defendant implicates the other), then one attorney probably cannot represent both people.  How could one attorney effectively represent one defendant to the fullest if it meant a worse outcome for the other?

If there is no conflict, you’re still probably better off with your own lawyer.

Why?

Let’s look at a criminal prosecution. It’s the police department (and all their resources) that investigate.  They forward the case to the District Attorney’s office.  If charges are filed, it’s now the DA’s office (and all THEIR resources too) against you.  Why not do everything you can to level the playing field?  Even if two defendants have the same defense, sometimes it’s very, very advantageous to have two defense attorneys.  That means two lawyers examining the prosecution’s case for weaknesses.  Two lawyers to strategize on your defense.  If the case proceeds to trial, it’s two cross examinations of every witness.  Two closing arguments.  Two, two, two.  Why not double the defense?

To discuss your case (or you and your co-defendant’s), give me a call or send an email.

Joe Dane

714.532.3600

info@joedane.com