Concealment = Shoplifting

Posted by on Nov 10, 2011 in Legal Corner | Comments Off on Concealment = Shoplifting

It is a common misbelief that in order to commit the act of shoplifting, an individual must exit the store and permanently deprive the merchant of the unpurchased merchandise. The truth is, however, that in most states, an individual commits the act of shoplifting by taking actions that would cause one to reasonably believe that he intends to permanently deprive the merchant of the goods. Most states require that the merchant have probable cause (or reasonable grounds) to believe that an individual has committed an act of theft or is attempting to shoplift before making a decision to detain the individual to determine if their observation was correct. Probable cause or reasonable grounds is not limited to observing the individual exiting the store with unpurchased merchandise. In addition to clear cases of theft, such as when a person opens a product’s container, consumes the contents and fails to pay for the product, probable cause or reasonable grounds to detain and make inquiry can also be obtained by observing an individual conceal unpurchased merchandise or in some states, by the activation of EAS even if the individual was not observed concealing merchandise. The majority of states do not require that an individual exit the store in order to have a civil cause of action for shoplifting.

States typically allow concealment to be used to infer intent. Some states have written a concealment presumption into their civil theft/civil recovery statutes, some have included it under the definition of shoplifting in their criminal theft statutes, some have included it in their merchant detention statutes and others have developed the presumption through case law.  Alaska, for example, has written a concealment presumption into its civil theft statute. Included under the definition of shoplifting are situations where a person knowingly conceals unpurchased merchandise while still on the merchant’s premises. Other states define shoplifting under their criminal statutes for theft and have presumptions of intent for certain acts, which include acts of concealment. New Jersey and Pennsylvania have a presumption that concealing unpurchased merchandise on or outside of the premises of a store shall create a prima facie presumption of an intention to deprive the store of the possession, use or benefit of such merchandise on the part of the person who concealed the merchandise. Prima facie means that something is sufficient to establish a fact or raise a presumption unless disproved or rebutted.[1]

Some states have chosen to include a presumption of intent under the definition of shoplifting in their criminal theft statutes. In Arizona, any person who knowingly conceals unpurchased merchandise while inside the store shall be presumed to have the necessary culpable mental state that is required to be liable for shoplifting. Delaware, Missouri, New York, Rhode Island and Washington have similar presumptions of intent included in their merchant detention statutes and are additional states that permit detainment upon the act of concealment. Georgia’s merchant detention statute permits a presumption to be inferred when there is suspicious behavior in general, stating that it is reasonable to think that a person is engaged in shoplifting when the person is conducting himself or behaving in such a manner as to cause a person of reasonable prudence to believe that he has or is committing the act of shoplifting. Under Florida and Arkansas’s merchant detention statutes, a merchant may detain a person if the merchant has reasonable cause to believe that a theft has occurred. The statutes state that the activation of an antishoplifting or inventory control device constitutes reasonable cause for detention so long as notice is posted that antitheft security devices are being utilized in the store. Colorado, Tennessee and Virginia also have similar statutory language in their merchant detention statutes.

Other states rely on or supplement the intent presumption through case law. California and Louisiana are the only states that have statutes with language requiring or seeming to require the taking of unpurchased merchandise from a merchant’s premises. However, case law in Louisiana specifically allows statutory civil damages liability even if the merchandise is not removed from the store’s premises. Therefore, in Louisiana, a detention may occur as soon as a person takes unpurchased merchandise without consent and with the intent to permanently deprive the merchant of the goods.[2] This is also apparent through Louisiana’s merchant detention statute, which states that if proper notice has been posted, a detention can occur upon the activation of an electronic security device. Similarly, an appellate court in Iowa has found that concealment of unpurchased items is material evidence of an individual’s “intent to deprive” element under Iowa Code Section 714.5 even if a person relinquished the unpurchased merchandise prior to exiting the store.[3]  In New York, an appellate court found that “the ‘taking’ element of a larceny is satisfied where the defendant ‘exercised dominion and control over the property for a period of time, however temporary, in a manner wholly inconsistent with the owner’s continued rights.’”[4]Therefore, in these types of scenarios, regardless of whether an individual has exited a store with unpurchased merchandise, the elements of larceny are satisfied and an individual may be stopped as soon as concealment occurs.

In the majority of states, a person has committed the act of shoplifting and may be detained as soon as unpurchased merchandise is concealed. Similarly, an individual may be stopped as soon as a security device alarm sounds even if the individual was never observed concealing unpurchased merchandise. The purpose of a detention is to investigate whether the person was attempting to shoplift as suspected and recover any unpurchased merchandise that the person may have. In most states, if concealed merchandise is discovered, whether or not the person exited the store and whether or not the merchandise was recovered in merchantable condition, the person has committed the act of shoplifting and the retailer has the right to pursue a statutory civil damages and/or civil penalty claim. However, in order to reduce the likelihood of being sued, even if the claims could be successfully defended, many retailers prefer to be more cautious and wait for an individual to exit or at least pass the last point of purchase before making an apprehension. Despite this policy, this is not a legal requirement in the majority of states and there may be times when it makes more sense to approach a suspected thief prior to their exit.  It is important for the retailer to research an individual state’s law and also attempt to find out if there is a local policy from the prosecutor’s office in the jurisdiction where the store is located. Depending on the state, the retailer may choose to apprehend an individual and protect its assets and personnel long before a thief exits the store.


[1] Black’s Law Dictionary 561 (3rd Pocket ed.2006).
[2] Ourso v. Wal-Mart Stores, Inc., 2008 WL 4899117 (La.App. 1 Cir.).
[3] Govan v. State, 736 N.W.2d 267, *1 (Iowa App. June 13, 2007).
[4] People v. Zombo, 813 N.Y.S.2d 624, 626 (N.Y. App. Div. 4 2006). 

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