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.
For more information, see these links:
Shoplifting FAQs (with video)