caught shoplifting; multiple charges

I would like to know if: a) the situation I describe sounds like a legal detention for shoplifting; and b) if the other charges sound like they have a legal basis.

If it matters, this is a California law question.

I bought some items at a store. As I went through the exit the alarm sounded. No one seemed to be paying any attention so I just left. A uniformed security guard came after me and asked me to stop. We were in the parking lot by then. She asked to check my bag. I agreed. She found a CD in it that hadn’t been paid for. I explained that this must have been a mistake by the checker or that something was wrong with the register and I offered to pay for it. She told me that I would have to come back with her to the security area. I tried to just walk away, leaving her with the CD, but she took me by the arm. As a reflex, without thinking I tried to pull my arm away but she put some kind of control hold on me and I stopped any further resistance as I realized she could easily injure me. She kept this hold on me and walked me back into the store.

In the security office she had a male employee (I am also male) do a pat down search for weapons and then she handcuffed me, hands behind the back, while she did her investigation and report. In the end she told me that she would release me without charges, but she gave me an order that I was banned from the store and that a civil demand would be coming.

The civil demand came a week or so later, for $500. It was paid.

Recently the police came to the house and gave me a citation to appear in criminal court. I have been charged with petty theft, disorderly conduct for loitering with criminal intent, and disturbing the peace for fighting.

You left the store with merchandise that was not paid for. That was the 'basis' for their detaining you. The scenario you describe sounds like a classic textbook case of their doing everything by the proverbial book.

GentleGrace:

Thank you. If I can just follow up a little bit, from what I have read some people say that they can't detain you just because an exit alarm goes off, they have to have probable cause by seeing you conceal something inside the store and then leave with it. I take it you don't agree, meaning you think that the exit alarm is enough?

Also, what about my other question as to whether the disorderly conduct and disturbing the peace charges can hold up? Its not like I attacked the guard or anything.

If they had to SEE everyone who stole something to establish probable cause, what would be the benefit or the point in having the exit alarms? The alarm is probable cause---and the fact you didn't stop is also probable cause. I have had alarms go off before when I passed through a door way and never once did it occur to me to proceed.
The logistocs of a security guard actually SEEING each incident of shoplifting is a virtual impossibility. An audible alarm sounding in relationship to a hidden security tag is pretty compelling and I cannot imagine it being considered unreasonable to wonder if the person who set off the alarm may have stolen something.
They can charge you with whatever they wish---but the burden of proof is on them. If you go to court and they cannot prove disturbing the peace etc. then you will be found not guilty. There is nothing "illegal" about their charging you.

However you may be able to hire an attorney to argue that the alarm sounding was not adequate probable cause---but since they did, in fact, find stolen merchandise, it will be difficult, in my opinion, to successfully defend that position.While there are steps that are followed to establish probable cause, you don't know that they did not observe you and you do not know they did not follow those steps. How do you know they didn't see you take those steps?

Thanks for your explanation about the exit alarm. I understand your point. I only asked because I have seen other people say the opposite and I am looking for sound reasoning here. There is even some website somewhere that makes a big deal about consumers standing up to stores that stop and search bags under those circumstances. Not that I was doing that. There was just nobody there and I have seen other people blow through alarms a number of times without anyone going after them so I thought I could do the same. Well, with too late hindsight your view seems better or at least more cautious.

To answer your question about how I know they didn't see me, the fact is that I didn't intentionally steal anything. I know that most shoplifters say that and I don't really expect you to believe me (everyone else laughs or sneers or makes some berating comment when I say that). I carried the CD to the counter and I remember laying it down there. The only explanation I can think of is that the checker just didn't pass it over the scanner correctly or the register malfunctioned. I suppose I have made that more difficult to believe because I blew through the alarm, tried to walk away from the guard, etc. all of which makes me look more guilty.

What I think or believe regarding your guilt or innocence is immaterial.

If it was clerk error, it should be visible on video tape. Perhaps securing a copy of the tape would assist you in your defense.

The guard said something about that when she had me sitting handcuffed on a stool in the office. She said something about that I could have been "accidentally stealing" or "left handing" the CD, which I found out later means that I could have passed it around in front of the cashier and then bagged it. I didn't, but the point is that I think she wasn't entirely sure about that. I don't know how good the video angle or quality is. I agree that getting a copy is real important if I am going to fight this, which I have to do unless I plead guilty to three criminal charges and maybe go to jail in the process. I don't think the other prisoners would treat me well in jail.

I understand that you aren't there to say whether I am guilty or not. I do want you to know that I appreciate having had this conversation. You have been real straightforward and are a clear thinker who writes clearly too. I am not sensing sympathy on your end (I'm not comlaining about that; I didn't expect any) but you have helped to rationally explain some things without jumping all over me and beating me up in the process. Thank you.

I guess I am done here unless someone has anything else to add.

From an objective point of view, the problem you are going to encounter is the fact that when they asked you to return, you were reluctant and did not cooperate. Also the fact you did not stop on the exit alarm---this doesn't mean you are guilty. But from a rational point of view, had the clerk made such a careless error, and made ME look guilty, I would be the first one to march back into the store and DEMAND they replay the footage of the transaction, if for no other reason than to clear my name there and now. As I mentioned previously, it could be argued that the exit alarm would have , in an of itself, caused most people to stop.

None of that means you are guilty. But if you add little things up, it paints a suspicious picture----and that is what the charges are being based upon.

Being in law is somewhat like being in law enforcement. You see so much and so many horrible crimes and outrageous happenings that you distance yourself from them and try not to get involved personally. I don't intend to sound unsympathetic----I can imagine how upsetting this is for you. But to personalize the difficulty of everyones situation would make it difficult to remain objective.

You seem very articulate and intelligent-----hopefully this will be one of those 'live and learn' situations. And, if, perchance you are convicted, I would look into expungement of your record so you can eventually go on with your life.

Good luck.

Gentle Grace -

I talked to a lawyer who does a lot of this stuff and I thought you might like to hear his opinion. I think it’s a little bit different than yours but it seems to come out in the same place. Here it is, assuming I have got it right.

To justify detaining a shoplifter you got to have “probable cause”; a reasonable belief suspect committed a crime. Most stores follow steps where security sees you conceal something and then walk out with it without paying. That’s the best way to get probable cause, but not the only way.

An exit alarm going off is suspicious, but not probable cause because false alarms are common. Leaving the store after the alarm went off is more suspicious, but still not probable cause. Stupid me for not stopping or returning to cashier, but that wouldn’t justify a detention. So, if I had just refused to let the guard search my bag and she had forced a detention anyway, the whole thing might have been thrown out as illegal.

The thing is the guard just asked me to “please” stop and would I “please” let her check my bag. I said okay. That made it a voluntary stop, not a detention, and a legal “consent search”. When the guard found the store’s CD that had not been paid for . . . Bang! She had probable cause because I had exited looking suspicious and then legal search caught me “red handed” with merchandise I had carried out of store without paying for it. My explanation that it was a mistake and my offer to pay for it didn’t help. That’s a typical shoplifter response. If they let everybody just pay to get out of it, shoplifting would be out of control. Even if that wasn’t quite enough, my trying to walk away from the guard was the clincher on probable cause because that was an attempt to escape.

So, I will have to face the criminal charges. My attorney has to get copies of the store video and the reports before he can really advise me on that part.

Well, thought you would like to know. Thanks again. Having you're opinion first kind of prepared me for what my lawyer had to say. I’ve been learning a lot. Unfortunately.

In March 2007, I was arrested for pointing a gun at another, family violence, and criminal trespass. All chargers were a lie, my ex-husband made up these chargers as well as the officer. Throughout the years I went to court the DA's office tried to make me take a pled, which I wasn’t because I didn’t do those things; However my ex-husband wrote a notarized letter saying that I didn’t do those things, in turn the DA Office no longer had a case. October 2009,the case was finally "dismissed”, until my attorney said that the DA's Office said they was going to drop the chargers then took it back and stated that they were going to Dead Docket it. So my question is as a citizen what can I do, because I was told that they now wont drop the chargers, like she said before the trial. I also want to expunge my record, but with Dead Docket I don’t think you can? Please reply if you can help.