Case Preparation: The Key to Successful Shoplifter Prosecutions

Shoplifters will soon learn that stealing from your company results in their being charged with serious crimes.

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The loss prevention associate finally caught them red-handed. For three months, he had been trying to catch these shoplifters in the act. This time he saw it happen. The male removed the frying pan from the box. He filled the box with Blu-ray discs and resealed it, leaving it on a shelf. The female walked by and picked up the box on her way to the checkout counter, where she paid $9.95 for the frying pan. She was quickly apprehended and handcuffed. The male shoplifter reentered the store to find his partner and was caught as well. Inside the box were discs worth $700, and the whole thing was recorded on CCTV surveillance video.

The LP associate called 911 to get the police on their way, then called his associates at other stores to tell them the good news. The police arrived, and he scratched out a quick statement about what the shoplifters had done, handed it to the officers, and watched them leave. A feeling of satisfaction swept over him; nothing beats the feeling of success.

Two weeks later, a detective called and asked for a more detailed description of what was in the frying pan box. Another call from the detective; this time, he wanted a copy of the sales document and a written statement from the cashier. He also wanted to know who handled the CCTV surveillance video and whether there was any video from previous visits by these two suspects.

The LP associate had to wait two days for the cashier to come back on shift. She didn’t remember too much about the incident, but she wrote down what she did recall. He scanned old CCTV surveillance video in an attempt to locate the shoplifter suspects on earlier visits. It was in there someplace, if he could only find it. The detective stopped by and picked up what the LP associate could gather, told him the case was still under investigation, and left.

Six months went by, and he forgot about the incident. Finally, he received a letter from the local prosecutor. The two shoplifters had pleaded guilty to misdemeanor theft and were given credit for time served. Each was assessed a $200 fine and had to pay some court costs. The LP associate thought to himself, “How could this be? That was a genuine felony if I ever saw one. This is an injustice!”

A Closer Look at the Justice System

The scenario above is fictitious, but it is based upon facts from multiple retail shoplifter cases I worked during my time as a property crimes detective for the Snohomish County sheriff’s office in Washington. All too often, what appears to be a great shoplifter case ends up dwindling away to nothing by the time it makes its trip through the criminal justice system. This is rarely because the necessary facts were missing; it just becomes a victim of the process. Consider the following scenario.

The case lands on a detective’s desk a week or two after the fact. The detective likely works a variety of cases, such as residential burglaries, car prowls, vehicle thefts, robberies, possibly ID theft, in addition to shoplifters and other retail crimes. It would join the 20–30 cases already on the desk, and would be joined by several more each day as time went on.

The detective will eventually read the case and decide whether to work it or close it out. Since the Blu-ray external theft case involved a shoplifter arrest, and it appeared the probable cause was good, he would prepare a list of items needed before it could be sent to the prosecutor. He knows what the prosecutor requires and that the prosecutor will decline to charge the case if anything is missing. He also knows that he has a limited time to work this case since others are in process at the same time. Overtime is not allowed, and the extra detective that was to be assigned has been put on hold because of the financial conditions in the county.

The detective needs a detailed list of recovered stolen property as well as a statement from the cashier. The CCTV surveillance video is pretty long and he has to watch the whole thing to make sure he finds the important segments. Still photos of key events have to be printed and captioned. He will also need a second copy of the video for the prosecutor. The LP associate’s statement regarding the shoplifter incident is incomplete, but maybe he can get by with it.

Somewhere during the process, another priority case comes along, and the detective has to send this one up the way it is at that point. It isn’t great, but it will have to do. He would have liked to put a better case together, but time ran out before he could do that.

The prosecutor gets the case. Of course, it lands on a big stack of others that he is already reviewing. He looks at it and sees that it’s a little confusing, but the potential for a good felony conviction is there. A few pieces that he would really like to have are missing. He knows that he could send a follow-up request to the detective and may get the information. He also knows the suspects have been released from jail and have another hearing scheduled soon. He decides to offer them a sweet deal in the hope that they will take it, and he can close the case and get on to the next. He would prefer to take the time to put a great felony case together, but it isn’t a priority in his mind, so he’ll take what he can get. A month or two goes by before the case disposition notice is sent to the retailer. Hopefully, they will be satisfied with the outcome.

Good Communication Is Key

This scenario makes it sound like there is no hope for justice, crime really does pay, and there is no consequence for criminal actions. In fact, there is a solution, and it is simple to put in place. The critical ingredient is good communication and planning before the fact.

Loss prevention associates and law enforcement need to work together on their cases. If the store knows what detectives need and prepares their shoplifter cases in such a way that all the necessary details are covered in the beginning, the detective will only have to add a few items, prepare a narrative statement, and send it to the prosecutor. Little time will be required on his part, and a quality product will be sent up.

If the prosecutor receives a case that is complete, easy to read, and easy to understand, he will be able to charge it immediately, instead of having to send requests for additional investigation and running into the associated deadlines and time crunch. This increases the likelihood that the suspect will be charged appropriately

Too often, the loss prevention associate doesn’t know what the detective needs, so they either send too little information or they use the “shotgun approach” and send everything they have along with their shoplifter case. This results in hours of sorting through paperwork at the detective office with additional items still needed in the end.

From my experience, the best way to accomplish this is for the detective and loss prevention manager to sit down with a case and critique it. As an example, I worked with the Lynnwood, WA, Walmart asset protection manager on an organized retail crime (ORC) case. We spent about an hour going over the details. Then he took it back to the store and rewrote the report. When I received the final product, it was complete and virtually ready to be sent up. The prosecutor charged the case, as written. Walmart then conducted area-wide training of its AP associates with excellent success. We have since gone through this process with other retailers with similar results.

On a related note, local prosecutors in several counties have raised the prosecution limits for felony crimes. These limits are usually negotiable. If the prosecutor is presented with information that the suspect or crime involved in a particular case, such as ongoing organized retail crime, is a serious or exceptional threat to the community, they are usually willing to make an exception and charge the case at full value. This has worked for me on several ORC cases.

Law enforcement relies on input from LP associates for this type of information. If the same shoplifter suspect has been involved in multiple thefts over a period of time, the values can often be aggregated and the case charged based upon the overall total value of losses. However, everything must be accurately documented to use this approach.

Following are basic requirements for compiling a good case file for prosecution.

Determine the Proper Charge

The appropriate criminal charge must be identified, and the elements of that crime must be met.

In addition to those elements in state law, the prosecutor has a charging standard for each crime that may consist of additional requirements specific to that jurisdiction. For example, Washington law says that in order to make an ORC charge, more than one suspect must work together to steal from a retail establishment. The Snohomish County prosecutor charging standard adds the requirement that they must steal from multiple establishments. In my experience, they would like to have three related incidents involving the same suspects.

The loss prevention associate must be well versed in the elements of each of these crimes. This knowledge will allow you to recognize what crime has been committed and will tell you what to include in your report. Often the police officer who responds to the store for a shoplifter arrest is not intimately familiar with all the retail theft laws, so a quick briefing from the LP person is necessary to get the right charge on the jail booking sheet.

LP Associate’s Statement

This is the key to the entire case. This document defines what happened, how you know it happened, how you know the identity of the person in custody, what was stolen and its value, and what crime was committed. Each of the elements of the crime must be included and addressed in the statement.

It is critical to write the statement in a manner that is easy to understand. Remember the reader probably has no retail experience and wasn’t there when it happened.

Use plain language and avoid jargon. Explain the shoplifter’s actions in detail. It is better to say, “I saw the shoplifter remove the contents of a box and place CDs inside of it in an effort to conceal them” than to say “I saw the shoplifter box-stuffing on the CD aisle.”

Identify the people involved by title and name and how you identified them. An example would be: “I saw a male, later identified as shoplifter suspect #1, John Smith, enter the north door. Smith was wearing a yellow shirt and gray pants. Smith stopped briefly and spoke to a female, later identified as shoplifter suspect #2, Suzy Jones. Smith and Jones then….” As the statement goes on, use their names. Too often, statements refer to S1 and S2 throughout, and the reader has to look back in the statement multiple times to figure out who these people are.

If another store employee is involved or speaks to the suspect, you must include a written statement from that employee with your report. Identify them as, for example, “store cashier, witness #1, Jenny Wilson.” The employee should document their interaction with the shoplifter suspect, including details of any statements or comments made by the suspect. This could be critical to the overall case; more about this later.

Clearly identify who prepared the CCTV surveillance video, who calculated the value of stolen property, and who completed each of the other tasks. Include a brief statement that this person has been trained and is authorized to perform this function.

The prosecutor will require an accurate fair market value of the stolen property. In the case of a retail store, the marked price is the value. You must describe how you calculated the value. In the case of recovered property, it’s simple; just add up the prices.

I have had cases where items were stolen, but not recovered. It was still possible to define a value because the store had an accurate inventory system, and the employees were able to determine what was taken based upon inventory records. The shoplifter suspect was recorded on video taking items from the shelf. Then the stock was counted and compared to the on-hand totals on the books. This process must be explained in the statement in a manner that convinces the prosecutor that the number is reasonably accurate.

Obtain copies of sales documents or any other document associated with the incident. Digital photos of recovered property are also a bonus.

CCTV Surveillance Video

CCTV surveillance video and photos are a valuable piece of evidence. “A picture speaks a thousand words” is true here. However, there are several pitfalls associated with this process that must be overcome.

In my experience, it is all too common for a store to have a state-of-the-art digital CCTV surveillance system that records wonderful, clear information. But when the detective asks for a copy of the video footage, the store employee has no idea how to share it. They usually say something like “I’ll have to get in touch with my boss [or the installer or some other person]. I’ll let you know when the file is ready.” Make sure the users of the CCTV surveillance system know how to operate it.

CCTV camera placement is another problem. We receive many great photos of the top of the suspect’s baseball cap. I’ve never been able to positively identify a baseball cap. Some retailers have a camera in the doorpost at the entrance to the store in order to capture a full-face shot of the suspect at eye level when they enter or exit the building. This allows a positive ID and a clear view of the clothing worn by the suspect at the time of the incident. The rest of the cameras may be at ceiling level, but it’s easy to track the shoplifter suspect’s actions based upon the clothing that was identified at the entrance. If the loss prevention associate sees a crime being committed on CCTV, they have the ability to go back and review the video from the entrance until they find the right person.

When preparing the video for law enforcement, include only those segments that show the shoplifter’s face and clothing, and show the shoplifter involved in the commission of the crime. Include all pertinent information, but keep it short. The longer the video, the less likely it will be reviewed by those who follow you in this process.

To supplement the video, make still prints of the face shots and the critical moments when the shoplifter was involved in the criminal act. Each photo should have a caption on it that describes what is going on. Don’t expect the detective or prosecutor to be able to figure it out without your help. Include who it is and what they are doing. The detective will compare these photos with a copy of the suspect’s state drivers’ license photo or a previous booking photo to confirm his identity.

Statements from Shoplifters

Shoplifters often hand you valuable evidence in the statements or comments they make. Listen carefully to what they say and write it down.

I once worked a case where the shoplifter suspect entered a store empty handed, as recorded on the entry video, went to the linens department and took a sheet set off the shelf, also recorded on video, then took it to the door security to get an authorization for a refund. He said he got it for a gift, but it didn’t fit his bed. After receiving the authorization he took it to the refund desk and got a gift card for his no-receipt refund. He told the customer service employee his wife didn’t like the color.

The alerted loss prevention associate took a statement from the door security person and customer service person, in which they included the shoplifter suspect’s conflicting statements. Fortunately, the LP associate got the statements immediately, before they forgot the conversation. These statements, along with the video and still photos, clearly showed what happened and proved the shoplifter was lying to get the refund. There’s an old saying—“A provable lie is as good as a confession.” That was the case here; it proved his intent beyond a reasonable doubt.

During the initial contact, the shoplifter suspect often has some excuse or explanation. Write these things down. After the shoplifter is apprehended, be sure to conduct an interview. You will often obtain additional statements or confessions that will make your case.

In my experience, it seems that loss prevention associates are hesitant to interview shoplifters for some reason. It is important. Don’t pass up this opportunity.

Snohomish County prosecutors have taken the position that it is not necessary for a store LP associate to Mirandize a shoplifter suspect who is in custody, unlike law enforcement who must advise suspects of their rights prior to any custodial interrogation. As long as the store employee is not acting as an agent for law enforcement or under direction of a police officer, Miranda is not necessary. However, you should clarify this in your jurisdiction to avoid having statements suppressed later in a court motion.

The Benefits of a Well-Documented Case

The importance of understanding each step in putting together a good case file cannot be overstated.

Remember these five basic steps:

1. Know the laws and elements of each crime.
2. Identify, collect, document, and prepare all evidence. This includes CCTV surveillance video, stolen/recovered property, and sales documents.
3. Collect written statements from all persons involved.
4. Conduct an interview. Listen carefully and document all statements made by the suspects.
5. After the above steps are completed, prepare your own written statement. Write it in plain language.

Describe what happened and how you know it happened. If you saw it happen, say so. Describe the above four steps in your statement as well.

If possible, the above should be completed prior to the arrival of law enforcement. It is usually okay to delay calling them for a while so you can get your case together. This allows you to hand them a complete case package on the spot.

Timing is critical. If a shoplifter suspect is arrested in our county, there will be an arraignment hearing in court the following business day. The prosecutor must have the initial case report prior to this hearing.

The purpose of the arraignment is to determine if there is probable cause to charge the shoplifter and whether he will be held or released. The information you provide is critical to this process. The more time that elapses between the actual incident and the documentation of it, the more that will be forgotten or lost. If necessary, additional details can be added later in the form of a follow-up, but the majority of the information should be documented immediately.

From my experience, the process described above does not require much additional time for the store employee. All the needed information is there when the shoplifter is caught or leaves the store. With a focused effort, the right information can be collected and organized in the right format to expedite the whole process.

The benefits are clear. If law enforcement receives a complete, easy-to-follow case from the store, they will be happy to send it through to the prosecutor. The case will be complete, requiring little or no follow-up.

The prosecutor will receive a package with all the information they need to do their job and will be confident that it will result in a successful prosecution. As a result, they will be willing to charge it at full value.

Thieves will soon learn that stealing from your company results in their being charged with serious crimes. Word will get around, and they will be more likely to avoid coming back to your store to ply their trade–when they get out of jail, that is.

All of this, of course, ultimately will help contribute to the bottom-line profit margin for your store.

This article was originally published in 2009 and was updated May 1, 2017.

Comments
  • This is Meredith Sol and I am attending ICDC college and reading this article, it gives me a good understanding of laws and the rules they have to follow but doing the right thing and catching the bad guys.

    Reply
  • This story is a great example of why retailers lose shoplifting cases and prosecutors get frustrated prosecuting them. This is only going to get worse because of resource limitations. There is a continued lack of communication between retailers, law enforcement, and prosecutors. Sometimes this communication gap is closed on big ORC cases but more often than not the majority of retail theft cases can’t and won’t get the attention needed for successful prosecution. The answer is not to stop prosecuting repeat offenders or keep doing what you are doing in hope of a conviction. the answer is crystal clear and consistent communication between retailers and prosecutors. Now there is a solution to achieve that goal. Go to http://www.alto.us for more information.

    Reply

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