Does Concealment = Shoplifting?

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It is a common misbelief among shoplifters that an individual must exit the store with unpurchased merchandise before being civilly liable for statutory civil damages. It is also a common misbelief among those shoplifters that if the merchandise is not physically damaged, they would not be liable for civil damages.The second misbelief is addressed in another post, “No Damage Does Not Mean No Damages.”

This post takes a closer look at that first misconception. It is not intended to influence store policy or suggest a departure in the world of loss prevention from well-thought-out policies designed to both increase the likelihood of successful criminal prosecutions and protect retailers from frivolous civil claims and litigation from those committing acts of theft. This post also only addresses civil law and is not intended to describe the required legal elements for or the higher burden of proof that must be met to prove a criminal case for theft.

The most important factor behind whether an individual could be held civilly liable for trying to take unpurchased goods from a store is intent to deprive the store of the store’s product or the benefit, use or full retail/sales value of the item or items in question.

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Many states define shoplifting or retail theft in terms of actions that would cause a person to reasonably believe that the actor intended to permanently deprive the merchant of the goods. Most states require that the merchant have probable cause (or, in the case of the Florida and Arkansas merchant detention statutes listed below, reasonable cause) to believe that an individual has committed an act of theft or is attempting to shoplift (with the requisite intent) before making a decision to detain the individual to determine if the merchant’s observation was correct.

Probable cause does not necessarily require observing an individual exit a store with unpurchased merchandise. For example, when a person opens a product’s container and consumes at least a portion of the contents within the store’s premises and fails to pay for the product, probable cause is easy to prove. However, depending on the law of the state, probable cause to detain and make inquiry can often be obtained by observing an individual conceal unpurchased merchandise inside the premises, or in some states, even by the activation of electronic article surveillance (EAS) regardless of whether the individual was observed concealing merchandise. We would not recommend accusing someone of theft merely because an EAS alarm has sounded, but the sounding of an EAS alarm might be a good basis for an inquiry. With the right touch of customer-centric diplomacy, EAS alarms may also serve as a way of keeping more assets from leaving a store without any accusations being made.

A majority of states have laws creating a nexus between concealment and intent. Some states have placed the presumption of intent from an act of concealment 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 (also known as shopkeeper’s privilege) statutes; and others have developed the presumption through case law.

Alaska, for example, has written a presumption of intent 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 (Black’s Law Dictionary, 10th ed. 2014).

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 of intent 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 used in the store. Colorado, Tennessee, and Virginia also have similar statutory language in their merchant detention statutes.

Other states rely on or supplement the presumption of intent 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 in order to trigger statutory civil damages liability. However, case law in Louisiana specifically allows statutory civil damages liability even if the merchandise is not removed from the store’s premises. Therefore, for purposes of whether a request for statutory civil damages may be made 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 (Ourso v. Walmart Stores, Inc., 2008 WL 4899117,La App 1 Cir). 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 [(Govan v. State, 736 N.W.2d 267, *1 (Iowa App. June 13, 2007)]. 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’” [(People v. Zombo, 813 N.Y.S.2d 624, 626 (N.Y. App. Div. 4 2006)]. Therefore, in these types of scenarios, regardless of whether an individual has exited a store with unpurchased merchandise, the elements of larceny were considered satisfied, and an individual was allowed to be stopped as soon as concealment occurred.

In the majority of states, a person has committed the act of shoplifting and may be detained as soon as unpurchased merchandise is concealed. In many states, 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 and/or to recover any unpurchased merchandise that the person might have concealed—if there is a question of whether they had intent or one of the store policy elements might not have been met.

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 salable condition, provided the wrongful intent was present, the retailer has the right to pursue a statutory civil damages claim. However, in order to reduce the likelihood of being sued, even if the claims could be successfully defended, retailers generally prefer to wait for an individual to exit or at least pass the last point of purchase before making an apprehension.

It is important for retailers to familiarize themselves with individual states’ criminal and civil laws and to coordinate with local asset protection staff and prosecutors to tailor its own store policies to help ensure greater success with prosecution. If a retailer is not planning to call the police and wishes to merely retain its merchandise or under special circumstances, such as when a person is a known repeat offender who has fled from the store in the past, the retailer may choose to apprehend an individual and protect its assets and personnel before the individual exits the store.

This article was originally published in 2009 and was updated February 26, 2018.

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