I spent 16 years working in retail loss prevention and I am Wicklander-Zulawski-certified to interview dishonest retail employees.
Matt C. Pinsker, criminal defense attorney & adjunct professor at the Virginia Commonwealth University Wilder School, Pinsker Law
Questions About Shoplifting
Apprehending shoplifters is an exciting field, and I enjoyed the 16 years I spent in the loss-prevention business. I still take an active interest in retail loss prevention and shoplifting, and I read up on the latest trends and news and keep in touch with colleagues in the business.
Here are the top questions I've received concerning shoplifting. Some were asked by shoplifters, and some were asked just because someone was curious. In the very interesting comments section at the bottom of this article, you'll be able to browse the many other personal shoplifting stories and questions I get asked about shoplifting, loss prevention, and internal retail theft.
1. If I'm not caught shoplifting right away, could I be charged later?
If you made it out of the store undetected, then it is extremely unlikely that you will be arrested. But if they have recorded proof of you taking the item, identify you on a surveillance video, and somehow find your name, then they can charge you days, weeks, or months later for a crime committed in the past.
Do I need to worry about going back to that store in the future?
Yes, you do. If the loss prevention people recognize you and have proof of the crime, they can have you arrested.
How long after shoplifting could I be arrested?
Rules vary from state to state, but typically, the statute of limitations for misdemeanor petty theft is one year.
2. What if I steal something that costs less than $5?
No matter how much an item costs, if you left the store without paying for it, then you can be charged with theft. Some stores prosecute all thefts, no matter how "small" they might seem.
Does the punishment vary according to the cost of the item I stole?
The difference between petty theft (a misdemeanor) and grand theft (a felony) is the cost of the stolen goods, but the cut-off point between the two varies from state to state. In California, the term "petty theft" applies when the property was valued at under $950. If you steal something that costs more than that, you can be charged with grand theft, which is a felony and can carry heftier fines, jail time, and stigma.
So any theft of any item, whether it costs a penny or up to $950, can be charged as a misdemeanor petty theft. BUT it really depends on the circumstances. For example, if you have been convicted of theft before, then you might be charged with a felony rather than a misdemeanor.
What Is Shoplifting?
Leaving a store with merchandise you didn't pay for.
Paying less-than-full-price by tampering with price tags or obtaining fraudulent discounts.
Failing to scan items at a self-service register or hiding or "forgetting to pay" for items in your cart.
Returning items you didn't pay for.
Getting a refund that is more than what you paid for the item.
Using a theft detection shielding device.
Using or eating merchandise in the store without paying.
3. Can you go to jail for shoplifting the first time you do it?
The penalty for misdemeanors in most jurisdictions can include up to a year in a county jail. Although jail could be possible for a first-time offense, it is rare. It's more likely that you'll be charged for a civil infraction and ordered to pay a fine, be put on probation, and/or required to do some community service. You'll still have a criminal record if you're convicted, though, even for a minor offense.
What happens if I'm found guilty of shoplifting but have no previous record?
Even with no previous record, being found guilty can have many negative consequences. Shoplifting is a crime of moral turpitude, which means it can can block an application for a visa, green card, or U.S. citizenship, or cause someone who already any of these things to be deported. Any criminal conviction can have long-lasting consequences and having one on your record may affect many future prospects. Many schools, landlords, and employers have policies that bar applicants with convictions.
Punishment for misdemeanors can include fines, probation, community service, and restitution. First offenses are often charged as municipal ordinance violations, without jail time. The store will likely bill you a hefty amount of civil restitution, plus you'll likely be ordered by the court to pay a fine and do community service, and it will go on your record. A good lawyer might be able to negotiate for a lesser charge.
What would a lawyer say?
Matt C. Pinsker, a criminal defense attorney and adjunct professor at the Virginia Commonwealth University Wilder School, says this:
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"What happens to a first-time adult offender for misdemeanor level shoplifting is extremely dependent on both the prosecution and the judge. Some prosecution offices have their own internal first offender programs to allow people to earn the opportunity for a dismissal. Other prosecutors are agreeable to reducing the charge to a lessor offense, such as 'trespassing.' Other places are harder and push for a conviction as charged, and maybe even some jail time. Of course, each case and each client is different, and with some judges and prosecutors you have more flexibility."
According to Aaron Baghdadi, a long-time criminal defense attorney
and former public defender in Florida,
"The likely outcome for first-time offenders is generally pretrial diversion (PTD), which is similar to probation, except if you complete PTD the state will offer nolle prosequi (the equivalence of a dismissal). If the defendant does not complete the PTD, then the charges will be reinstated against the defendant. A defendant is not entitled to PTD for a first offense, and
every once in a while a prosecutor will not offer PTD for various reasons.
However, prosecutors generally offers PTD for first-time offenders."
4. Can a store detective physically detain me?
Most of the big US chains have policies in place that prevent Loss Prevention agents from laying their hands on you (or chasing you, should you choose to run) or stopping you after you have left the store. These policies were supposedly created for the safety of the employees and customers, but is definitely a smokescreen to avoid lawsuits should a party get injured (or killed) during an apprehension.
Are Loss Prevention personnel allowed to touch me?
If you are physically detained by the management, store, or Loss Prevention employees, or pursued by store employees outside the company boundaries, you may want to talk with your attorney to discover if the stop was within company policy. Just because the law in your area may state that a merchant (or employees of the chain) can physically detain you, that doesn't mean that the store allows their employees to do so.
You can also be assured that if you choose to run (or walk away), the store will notify the police department and you will most likely be arrested.
5. How do I know if the store's Loss Prevention Department will try to send me to jail?
You don't. The decision to prosecute depends on the store's policies, your actions during the apprehension, the dollar amount of the merchandise stolen, and the local police department's policy on misdemeanor shoplifting.
Some stores have a set policy for prosecuting cases. For example, if you steal $20 worth of merchandise at Kmart, you're taking a ride to the police station. The decision has already been made and there is usually nothing you can say or do to prevent it. Exceptions are rarely made.
Will the store call the police?
I worked in a very high-crime city for a large retail chain, where the local police asked us not to call them for anything under the amount of $250. They only wanted to pursue felony cases, not misdemeanors. Sticking a DVD in your pocket is a low-level crime as far as the police department is concerned. They've got better things to do than bring you down to the police station to spend a couple of hours with you. A good Loss Prevention (LP) Department will work with the police department, no matter what the store's policy says.
Some police departments will just cite you and write you a ticket to appear in court on the charge. It all depends on your location.
Other reasons the store may call the police:
- You try to run away.
- You fight with or interact physically with Loss Prevention, store management, or customers.
- You don't carry proper ID with you.
- You've been caught once before (or more).
- They suspect you've been stealing from the store for awhile and have not been caught until now.
6. I was caught shoplifting, and they want me to pay a civil fine. What's this all about?
In some cases, stores who lose merchandise to shoplifters charge a civil fine to help defray the costs of loss prevention operations, lost merchandise, etc. Stores are usually entitled to ask for three times the amount of the goods stolen or $200
(whichever is greater), plus attorneys fees. The average civil recovery fee in the United States is $250. The store (or chain) usually partners up with a collection service and splits the fee down the middle.
Matt C. Pinsker, a criminal defense attorney, says he always advises his clients to throw out those scary-looking demand letters. "I've never seen a store follow through on their threats or warnings. While the law allows stores to recoup costs imposed by shoplifters, those letters are very dishonest, and are close to being a scam. For example, the merchandise is usually recovered and can still be sold, so a store sending a letter demanding money for merchandise which can still be sold as new is unethical and 'unjust enrichment.'"
Do I have to pay the fine if I'm not arrested or charged with any crime?
This fee will apply whether you have been arrested or not. The retailer will sometimes agree not to pursue civil damages if you pay the fine. The recovery people are relentless in pursuing this fee. Sometimes, they'll threaten you by saying you have to pay the fee to avoid getting taken to civil court, and when you go to court, additional fines may be imposed.
Again, Matt C. Pinsker, criminal defense attorney, advises against paying that fine, but it probably helps if you have a good attorney.
7. Do I have to leave the store with the merchandise in order to be charged with theft?
Lots of people are confused about this, and policies vary from state to state (and from store to store). Many people believe that they have to actually exit the store with the merchandise before they can be charged, but it depends upon that state and store's policy regarding concealment and probable cause. In many places you can be charged for putting merchandise in your pockets, even while you're still in the store, although the big chains don't usually allow their employees to apprehend on concealment of merchandise.
I know I'm being followed, but I have already concealed merchandise in my jacket pocket. What should I do?
Get rid of it. Put it on a shelf and leave the store. It's called dumping the merchandise. No merchandise? Then no crime.
It's embarrassing to dump your concealed goods in front of an LP and exit the store, but it's 100 times more embarrassing to be arrested for shoplifting.
Can I be arrested for merely putting an item into my pocket or bag while in the store?
According to Matt C. Pinsker, a criminal defense attorney, "Usually a store will not stop someone for concealment alone. If a person takes items and places them in a purse intending to steal, but later changes their mind and dumps them (prior to being stopped by Loss Prevention), it is extremely unlikely that the person will be prosecuted."
8. The LP claims they have me on video stealing. Don't they have to let me see the tape?
No. 99.9% of loss prevention detectives will not let you see video of your apprehension, although the police may want to see it (and usually do) if it is available. Sometimes they'll take a copy with them for evidence.
Most companies prohibit their employees from releasing video evidence to anyone, for any reason, without a release form approved by LP higher-ups. These tapes sometimes end up on the internet and increase liability for the store.
9. What if I was stopped and accused of shoplifting, but did not have any merchandise on me?
If you were stopped by an agent of the store, accused of theft, and did not have any merchandise on you, the employee(s) made something known in the business as a "bad stop." If this happens to you, please make mental notes of the following:
- What were you accused of taking?
- Were you touched in any way during the detainment?
- How many store employees/customers were present in the area?
They screwed up and stopped me for stealing when I didn't. What should I do?
You should ask for the person's name and position. You should also ask to speak with the store manager and ask for relevant phone numbers for LP and operational executives in the store. Don't say too much. Just explain the situation and be on your way, then contact an attorney as soon as possible to find out if your rights were infringed upon. Nine times out of ten, the store will attempt an out-of-court settlement. Sometimes it will be as simple as offering you an apology and a gift certificate. Talk to your lawyer before accepting any form of compensation.
Can I sue a store for falsely accusing me of shoplifting?
According to Matt C. Pinsker, a criminal defense attorney, under common law and in many states, "If a store did lack probable cause, a lawsuit may be possible. However, part of any lawsuit is proving not just the store was mistaken, but that it acted negligently and that there were damages. Even if the store was negligent, how much is a 15 minute detainment really worth? Unless the conduct of the store was outrageous, it's not worth suing."
10. Which stores don't prosecute for shoplifting?
Different stores have different policies. Some only prosecute for thefts above a certain dollar amount, others will prosecute even for a stick of gum. Some will take you to court, while others merely want to get their merchandise back. Some tell their employees or security officers to allow suspected shoplifters to leave the store before chasing them down, while others never pursue anyone beyond the store's exit. You can't know about a particular store's policy without insider information.
Are there any stores that are easy to shoplift from?
Some assume that stores with fewer cameras and security personnel and laxer standards are easier to steal from, but those places are also less predictable. A large chain will have many more and better-trained eyes on you, but the single employee of a small mom-and-pop store might have a gun.
11. Can Loss Prevention detain a pregnant woman?
Of course. An LP agent is expected to use discretion and store policy when it comes to making an apprehension. If you become sick or feel the need for medical treatment, ask the LP to call 911 immediately. The store doesn't want you to become ill or jeopardize your pregnancy, either.
What if I'm old, hungry, homeless, or physically or mentally impaired?
Most stores don't take a person's personal situation into consideration where theft is concerned. However, senior citizens 70 and older and children younger than 7 are usually exempt from being detained. (This rule can vary by a few years depending on which state you're in).
12. What if I only steal part of an item, not the whole thing?
No matter what or how much you steal, it's still a crime.
I stole a small bottle of perfume from a package that contained three bottles. The store charged me the price for all three. How is this fair?
If you open a package, steal something from it, and leave the remainder, the store can no longer sell the package as one item, so they charge you the retail price of the entire item as if you had stolen all three bottles.
Tampering with packaging in any way that harms merchandise could be considered "destruction of property" which itself is a crime.
13. Is it still stealing if I paid for the item, but didn't pay the full ticket price?
Fraudulently paying less than the full value of an item is also considered theft. This includes tampering with price tags or applying discounts you're not entitled to.
I was arrested for getting a discount on a DVD player from my girlfriend who is a cashier at the store. Why wasn't she the one to get arrested?
You can rest assured that your girlfriend will most likely suffer the same fate as you. Under-ringing (or sweethearting, as it sometimes called) has been around forever. Most companies have strict rules against an employee ringing up a family member, spouse, or friend. That infraction alone could get your girlfriend terminated, but since the store had you prosecuted, you can bet they want to interview your girlfriend for an admission to this crime and others she may have committed in the past. If the store has enough evidence against her, she could be arrested and charged.
Typical Shoplifting Penalties (BUT Each Jurisdiction, Judge, and State Is Different)
Sometimes, you'll be charged with a petty (not criminal) offense that does not go on your record.
A first offense of less than $300 in merchandise.
Class A Misdemeanor
up to 1 year in jail
up to $2,500
A first offense of more than $300 in merchandise.
Class 3 Felony
A second offense of theft of less than $300 of merchandise.
Class 4 Felony
14. What if I didn't steal anything, but my friend did?
It isn't a crime to be with someone who commits a crime, as long as you didn't encourage or help them. If you didn't know your friend was stealing, you should not be charged. The store has to prove that you knowingly participated in order to charge you.
I dared my friend to steal some makeup. I handed her what I wanted and she took two items for herself. Why was I arrested, too?
Because even if you are not in possession of the stolen items, you took an active part in the shoplifting. You are being charged as an accomplice. Most stores will not charge another person who happens to be with the shoplifter unless they take an active part in the crime. You physically handed the merchandise to your friend, making you an accessory.
15. Is it hard to steal from big-box stores like Target or Walmart?
Large retailers like Walmart and Target have famously strict policies against shoplifting, although they usually only prosecute for thefts of more than $25. However, they save evidence and communicate with their other stores so they can build a felony case against you. Big-box stores have lots of surveillance (cameras, microphones, security tags, sensors, alarms, etc.) and big and well-trained loss prevention teams that get lots of practice catching shoplifters.
Although they're usually not allowed to watch you in the bathroom or fitting rooms, they have eyes almost everywhere else. SuperTargets have digital recording systems in every checkout lane, which means every single transaction is captured and retained for about 45 days. The parking lots of big-box stores are often equipped with PTZs (pan-tilt-zoom cameras) to read license plates.
What happens when you're caught stealing from Target or Walmart?
Big-box Asset Protection Departments won't usually press charges against people under age 7 or over age 70. If you're caught, they might ask you sign an agreement not to enter the store again (they "ban" you). The first time a 16-year-old gets caught stealing, they will most likely be asked to return the merchandise and leave the store. If you're under 16, they must release you to a parent or guardian. If your parents can't be reached, then LP will call the police to come get you, so keep that in mind.
Would You Shoplift?
To learn more about policies and rules Loss Prevention personnel follow and how they are trained to deal with shoplifters, read 5 Things You Didn't Know About Shoplifting.
If you were apprehended in a store and want to know what's going to happen to you, read Caught Shoplifting: What Happens Next?
The information in this article should not be used as legal advice. If you've been caught shoplifting, consult a lawyer as soon as possible to discuss your case.
This content reflects the personal opinions of the author. It is accurate and true to the best of the author’s knowledge and should not be substituted for impartial fact or advice in legal, political, or personal matters.