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Let's say Bob enters a store and he only needs to pick up a few small items. The store provides shopping carts but he doesn't use one. He grabs the small items he needs and to transport them to the register in the front he puts them in the small pocket of his hoodie. As he's walking to the register, a loss prevention person stops them and accuses Bob of theft. He says "We have you on camera stuff your hoodie with stuff". He explains that he was simply carrying the items in his hoodie to the front register. The loss prevention agent doesn't allow him to go to the register and forces Bob into the back room until the police arrives.

Did Bob commit a theft?

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    I would say since he was walking to the register it would be hard to prove he didn't intend to pay for it - generally the guard would wait until Bob was leaving or had left the shop before stopping them, where the evidence is pretty clear they meant to steal.
    – komodosp
    Aug 3 at 9:10
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    If I did this, I would probably eventually commit theft just because I would invariably forget that I put things in my pockets. It has nearly happened, and I have been very wary of it since.
    – Arthur
    Aug 3 at 9:26
  • I actually did once pick up a small item and put in pocket. I then realised I needed a basket for extra items I saw and ended up accidentally taking the small item. OTOH, something I bought was on offer but the till didn’t give me the offer price, so I don’t feel too guilty!
    – Tim
    Aug 3 at 16:40
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    Note that even if your intentions are pure, and even if you are not found guilty, it does not mean the loss prevention person acted unlawfully in detaining you. The threshold for reasonable suspicion is probably far lower than the threshold for being found guilty in court. Aug 4 at 5:41
  • @GregoryCurrie "Reasonable suspicion" is indeed a far, far lower standard than "proof beyond reasonable doubt," but is reasonable suspicion actually sufficient for a citizen to detain another citizen? As opposed to probable cause?
    – reirab
    Aug 4 at 9:15

4 Answers 4

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The crime of theft generally requires two elements - taking control of property, and the intent to deprive the rightful owner of it. If Bob had no intent to leave without paying, he may lack the intent often required for theft. In the scenario described, it's possible Bob has not committed theft, but his actions may indeed constitute theft depending on the jurisdiction.

As pointed out in the comments, some jurisdictions codify the concealment of merchandise as prima facie presumption of an intention to steal, or may even codify the act of concealment itself as a crime. There are some shoplifting laws statues that specifically call out "willful concealment", which does not require leaving the premises of a store to have committed a crime - merely concealing the item may be a crime in itself, although perhaps not the crime of "theft".

Whether a court would find Bob guilty of theft will depend on a number of factors, depending if there is leeway in inferring intent, and how that intent is inferred. If Bob's actions are found to be sufficiently inconsistent with the behavior of someone who truly intended to pay, the court may find him guilty. If a reasonable person would infer a lack of intent to pay from Bob's actions, he may be found guilty.

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    If I decided to buy several items after all (no basket) I would make a 'basket' by lifting the hem of the hoodie so that the items are in plain sight. Placing them in a pocket conceals them, which suggests intent. Another option is to return to the door and get a basket. OTOH the cop should only apprehend me if I actually leave the store without paying. Aug 2 at 19:01
  • Does it matter if Bob's hands and arms are full of merchandise? Empty?
    – RetiredATC
    Aug 2 at 19:01
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    @RetiredATC Up to the judge/jury how they view it. Openly carrying other items to the register may reasonably indicate an intent to pay for everything, but a prosecutor could frame it as a ruse to distract from the one concealed item which the accused does not intend to pay for. Having full arms and a reason to put an item in your pocket might help to cast doubt on an intent to steal, rather than having empty arms and putting the item in your pocket for no real reason, but it all comes down to how confidently intent can be inferred. Aug 2 at 19:18
  • The principle at issue has been codified in many states under the slogan: concealment is theft. Aug 3 at 16:29
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    @WeatherVane conceals them, which suggests intent Is that a personal opinion, or is "concealment suggests intent" something that's backed up in statute or legal precedent? If the latter, then more details on that could form the basis of a useful answer.
    – R.M.
    Aug 3 at 17:02
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It looks very much like theft. But the “theft prevention person” could have waited until you came to the register, where you would either have paid or removed all doubt that it is theft.

So if you were indeed “walking to a register”, or even “queuing up at a register”, your lawyer could argue in court that there is reasonable doubt of your guilt, which would have gone if the theft prevention had just waited a moment.

A similar defense could work if you had items with clear anti-theft measures. People would be unlikely to hide things in their hoodie that give an alarm if you leave the store.

Another possible defence would be if they have CCTV footage, or your lawyer just asks the theft prevention person, whether you acted absolutely openly without trying to hide your actions - that is a little bit more doubt that you are a shoplifter, because a shoplifter would try not to be seen.

These defenses may or may not work. Either way, hiding things in your hoodie is a very bad idea. To your original question: It is not theft, but you may very well not be believed and be convicted of “committing theft beyond reasonable doubt”.

(In other countries it is theft if the item leaves the store without payment. That leaves much less room for “reasonable doubt”. There is also very little room for "attempted theft". If I try to kill someone but fail, it's not murder but attempted murder. You would think the situation described would not be theft but attempted theft since the attempt failed, but that's not what the law says).

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If you didn't intend to steal it then you didn't commit crime, but that won't keep you out of jail.

Other states will likely be slightly different, but the US Georgia code 16-8-14 Theft by shoplifting defines the elements as:

(a) A person commits the offense of theft by shoplifting when such person alone or in concert with another person, with the intent of appropriating merchandise to his or her own use without paying for the same or to deprive the owner of possession thereof or of the value thereof, in whole or in part, does any of the following: (1) Conceals or takes possession of the goods or merchandise of any store or retail establishment; (2) Alters the price tag or other price marking on goods or merchandise of any store or retail establishment; (3) Transfers the goods or merchandise of any store or retail establishment from one container to another; (4) Interchanges the label or price tag from one item of merchandise with a label or price tag for another item of merchandise; or (5) Wrongfully causes the amount paid to be less than the merchant’s stated price for the merchandise.

Intent is part of the element, but the defendant's claim of "I was just carrying it to checkout" isn't going to be enough to beat probable cause for arrest. Note the concealment element specifically. You might beat it in court, but you would be at high risk of incarceration.

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  • I was told about this method: 1. Go to a clothing store, pick up a pair of jeans, pay, take them to your car. 2. With your receipt in hand, pick up an identical pair of jeans and walk out with them. When challenged you show your payment receipt. This almost manages to miss your five law points, but just falls foul of (5).
    – gnasher729
    Aug 3 at 3:00
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    @gnasher729 it's clearly against (1)
    – Tiger Guy
    Aug 3 at 4:18
  • Probably worth being more explicit that the answer to the original question is "Bob did not commit a theft under this law" even though, as you say, in practice that may not keep him out of trouble.
    – psmears
    Aug 3 at 10:30
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Common sense - where this is common - would say that, no, this clearly isn't theft, and the shop staff should be able to make that distinction.

Presumably, if you want to steal an item in a shop, you would try to conceal it and avoid being seen or caught on a camera; if you don't intend to steal, you won't - instead you would let everybody see what you were doing. Next, if you want to steal, you will attempt to leave the shop without paying for the item - that is when you demonstrate that you are a thief.

I have often enough gone to a supermarket with a shopping bag and simply putthe things I want to buy in it. I have only once been questioned about it - another shopper had talked to the guard, who then approached me to say that I obviously weren't stealing, but could I not do it in the future, so there weren't any misunderstanding.

Finally, it is a fundamental principle in the West at least, that you are innocent until proven guilty, and you are not even remotely proven guilty until you try to leave the shop without paying; and even then you might claim that you simply forgot for whatever reason - maybe you have beginning dementia, who knows.

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    Aug 3 at 12:36
  • However, in jurisdictions where concealment itself is criminalized, all the store has to prove is that the concealment happened. So proving guilt becomes a tad easier for them.
    – ErikE
    Aug 3 at 19:13
  • @ErikE I didn't know such jurisdictions existed. However, I would argue that if you place yourself deliberately in front of a camera or other people in the shop and make sure what you do is seen - or if the things is visible in your pocket/bag - then it isn't concealment.
    – j4nd3r53n
    Aug 4 at 8:27

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