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What Is Shoplifting?

Shoplifting is commonly understood to be an offense where the perpetrator intentionally removes items from a store without having paid for them — a form of theft.

If you have been accused of shoplifting you may be able to defend against theft charges. A shoplifting defense attorney can review the surrounding events and determine whether the store owner, employee or security guard had probable cause to suspect you, detain you and conduct an investigation.

Can a Store Detain Shoplifters Legally?

To lawfully detain a person, the merchant must have probable cause, which is the reasonable belief that a crime has been committed or was about to be committed. Probable cause is a subjective standard, so some general rules have developed to guide retailers in establishing probable cause.

  • Observe the customer in proximity to the merchandise
  • Watch the customer select or handle the merchandise
  • See the customer conceal or carry away the merchandise
  • Maintain constant and uninterrupted observation of the customer
  • See the customer fail to pay for the merchandise
  • Detain the customer in or near the store

Stopping, or detaining, a suspected customer must only be long enough to ascertain that the customer possesses goods that he or she failed to pay for and to alert the police. If store personnel handcuffed you or locked you in a room or handled you roughly, you may have cause to sue the store owner.

Is Shoplifting a Felony?

Most states have statutes surrounding the crime of shoplifting. Shoplifting is essentially a form of theft, and as with many such offenses related to crimes of larceny or theft of private property, the severity of the charges correlates with the monetary value of the stolen goods.

In some states (Massachusetts, for example) the penalty for shoplifting less than $250 in goods is a simple fine, with no jail time attached, if the perpetrator is a first- or second-time offender. By contrast, in the same state, if you are charged with larceny of $250, you could face up to a year behind bars.

You might face felony charges for shoplifting if you are deemed to be participating in an organized retail theft ring and conducting a series of shoplifting sprees for personal profit. This is considered a much more severe offense than the petty theft commonly associated with shoplifting more generally.

Rarely is shoplifting (or more appropriately, theft or larceny, legally speaking) prosecuted at the federal level under U.S. Code Title 18, Chapter 31. The reason being that federal charges of theft related to potential shoplifting would typically feature government property.

Penalty for Shoplifting, First Offense

The penalty for shoplifting, if it’s your first offense, is typically less than the punishment meted out for repeat offenders. That being said, there are several other factors that can influence the sentencing given out in response to any shoplifting charges.

There are three different levels of legal response to an incident or incidents of shoplifting. An infraction is the least severe punishment handed out in response to a charge of shoplifting — a civil remedy that involves only a fine and no addition to, or creation of, a criminal record.

First-time shoplifters who are caught stealing less than $250 in goods have a good chance of seeing this penalty, should the state the offense was committed in allow for this classification.

If you are caught stealing less than what the state considers a modest amount of valued items (typically ranging from $200 to $400) you may be charged with a criminal misdemeanor, usually under a term of petty theft. First-time offenders may face jail time, but it is more likely that a conviction would result in fines and restitution rather than a lengthy stay behind bars.

Finally, if you are caught shoplifting significantly valued goods, you could face grand theft or grand larceny charges. In these instances, even being a first-time offender may not spare you a stint in prison, with sentences of between two to 10 years being most common. In addition to a potential prison sentence, hefty fines and restitution may also be ordered by the courts if the prosecution secures a conviction in your case.

Shoplifting Charges After Leaving the Store

Contrary to common public belief, it is entirely possible to face shoplifting charges after having left the store. If video evidence is present, this can be presented to the police, and charges can later be filed against you. Making a “clean” escape from the premises does not guarantee that you will remain free of charges.

Shoplifting Defenses

Given that intent is a requisite for criminal charges, many defense lawyers taking on shoplifting cases prefer to challenge the nature of the defendant’s intent. Perhaps instead of attempting to willfully conceal a product, the defendant rather placed the item in their backpack because their hands were full with other goods. Perhaps an absentminded defendant pocketed a small item without thinking, arguably intending to produce and pay for it later but forgot about it. Casting doubt upon the criminal intent of the defendant may be a viable defense against a shoplifting charge.

Actual innocence may also be argued in court if there is insufficient evidence (shaky or unreliable eyewitness testimony, fuzzy or unclear video surveillance footage) to produce a conviction.

How Can a Shoplifting Lawyer Help?

If you’re accused of shoplifting, you should retain the services of experienced criminal defense attorneys. While those facing infraction tickets or fines may not see an addition to, or creation of, a criminal record if found guilty, those facing misdemeanor and felony charges could.

A shoplifting attorney can explain your options, and also may be able to assist you in the following ways:

  • Arranging for you to make restitution to the store owner in exchange for having the shoplifting charge dropped
  • Presenting defenses that the store owner did not properly detain you or held you for too long and failed to conduct a reasonable investigation
  • Negotiating with the prosecutor for your guilty plea or plea of nolo contendere
  • Arguing on your behalf that there was no probable cause
  • Presenting evidence that you intended to pay for the goods
  • Preparing your counterclaim for false arrest, false imprisonment, slander, assault or other causes of action the facts of your case may support
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