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Shoplifting Arrest Process & Possible Penalties

Interviewer: If you’re in a store, what’s a typical scenario? Do you get stopped by someone in the store that’s deputized in some manner or can any store employee stop you?

Sam Sachs: There are store detectives. They’re not deputized. Lots of times their protocol is to wait until you get outside the store because concealing with the intent to deprive the owner inside the store is a little easier to defend sometimes. “Oh, it was under my coat.  When I went to the checkout counter I was going to certainly tell them.” Or, “I put it in my top pocket because both my hands weren’t free but I was going to pay for it.”

Lots of times they’ll wait until they get past the cash register and outside of the store. Then there’s no question about it.

Interviewer: What happens if you run from the store detectives?

Sam Sachs: It’s no worse if you run, but if there’s violence involved, then there are additional crimes. Most people don’t run. The ones that shoplift because they’re trying to make a living at it may run, and they may shove somebody and they may scare them. There have been some bloody tussles. I had one guy that broke a store employee’s nose.

The loss prevention employees’ training ranges from being a mall cop to people that are really trained well. They’re told not to risk their safety in order to catch a shoplifter.

The other thing that’s kind of catastrophic for people that do this, especially for a vicarious thrill, is that we have statutes that allow civil confiscations of vehicles used in the course of a crime. We’ve had people that shoplift – maybe they take $200 or $300 worth of material – and then the county prosecutor will move against their BMW that they prove to the store and take it away.

Interviewer: How does that make any sense?

Sam Sachs: There’s nothing that says legislators have to make sense. The same way that if you’re dealing drugs out of your van or your Mercedes or your motorcycle, that’s an instrument used to further the crime. They have the right to move for a civil forfeiture and take it away. They’re starting to do that in many jurisdictions for shoplifting.

I defended someone who had about $20,000 equity in her car after the loan. She was fairly well-to-do but was going through some psychological turmoil and it was not the first time she was caught. They moved to confiscate her vehicle because she took the goods that she stole out of the mall to the vehicle and loaded them in it. That’s where they got her, and the prosecutor in this particular county was very aggressive in going after vehicles.

It’s found money for the prosecutors. It’s very hard to defend.

Interviewer: The prosecutors and the government are essentially allowed to steal from you?

Sam Sachs: I think it’s more like legal extortion, because what they do is they take the vehicle or they’ll say, “Okay, it’s worth about $20,000 but give us $10,000 in cash and you can have it back.”

In some counties, and in one county in particular, they’re so aggressive that the day after my client is arrested and they retain me right away, I send a letter to the Superior Court, and I get a call from the forfeiture unit before they even have processed the criminal paperwork, saying, “We’ve got your client’s” whatever it is that they have. “Is there a lien on it? This is what I figure the value is. Do they want to buy it back or are we going to keep it?” Then they get to use it for their own purposes.

It’s a very bizarre result. It’s a disproportionate punishment. I can understand it if it’s someone that’s dealing drugs out of their car, but again, it’s not for me to judge the law. It’s for me to defend against the law if someone is accused.

Interviewer: For shoplifting of up to $200 and then $200 to $500 and $500 and above, what are the possible penalties?

Sam Sachs: It’s up to six months in jail and a $1,000 fine for a disorderly persons shoplifting. There also is a possibility of a jail sentence and third offenders must go to jail for shoplifting for 30 days. It’s meant to be a deterrent and it also scares the hell out of people.

Sometimes there are things we can do to avoid the jail time. It’s an offense that we can plea bargain, so we can sometimes avoid jail, but again, it depends on the jurisdiction.

Obviously, in a place that has a mall where they’re arresting 30 shoplifters a week, after a couple years of that, the judge doesn’t want to hear what somebody’s excuses are. It’s much tougher to defend them in jurisdictions with malls. In areas where there are no great shopping areas, shoplifting is a very rare thing. Sometimes it’s juveniles and they get adjudicated in the family court. The penalties are less harsh.

If it’s over $200 but less than $500, there’s a potential jail sentence of up to 18 months. That’s not going to happen, especially not for a first offender, but then it escalates up to a five-year potential sentence. Again, it depends on what the circumstances are, what their prior record is, and whether they can make restitution. Sometimes they recover the goods but they can’t use them.

I had a case when I was a judge where an older woman was wearing old-fashioned bloomers and she went into the supermarket and put frozen meat in her bloomers, which I can’t even imagine. But that was a case that I had to hear as the judge and obviously for health code reasons, even if they recovered the meat they couldn’t ever sell it again. That’s an issue of restitution. If it’s a sweater or something or they have stolen and it’s in a box, obviously restitution is not an issue, if it is recovered and undamaged.