Defending Against Retail Crime Allegations
According to a U.S. Chamber of Commerce survey conducted a couple years ago, small retailers across the United States report a dramatic increase in alleged instances of shoplifting during the holiday shopping season. Because of those concerns, many retail entities institute additional security measures in November and December, bringing in extra security and advising cashiers and sales personnel to be on the lookout for acts of theft. They may even upgrade security cameras or add electronic theft detection devices.
What are your rights if you become a victim of the increased vigilance over holiday retail theft? Maybe, in the frenzy and chaos of holiday shopping, you unintentionally walked out of a store without paying for something. Maybe you simply made a bad decision. How can you defend yourself against holiday theft or shoplifting charges this year?
What Common Retail Crimes Increase During the Holiday Season?
The Chamber of Commerce study found a 53% increase in shoplifting in small retail stores around the holidays. Researchers attribute that increase to a variety of factors:
- Increased traffic in most retail stores—The more people in any retail establishment, the greater the likelihood of shoplifting.
- The temptation to steal a gift—As a general rule, people are more inclined to shoplift for themselves than for others, either because of personal wants, financial hardship, or the thrill of committing an illegal act. However, the pressure to provide gifts for others at the holidays can be sufficient motivation to cause a person to shoplift.
- Shoplifting can be easier at the holidays because of increased distraction—Store employees generally have more shoppers to monitor, and there are often in-store or nearby special events that can make it easier to shoplift without being seen.
As a significant percentage of holiday shopping has gone online, other types of retail crimes have become more common at the holidays:
- Shipment theft—Amazon reports that nearly half of all Americans have had a delivery stolen.
- Identity theft—This typically takes the form of credit card fraud.
- Employee theft—A national survey found that internal theft accounted for approximately $16 billion in annual retail losses in 2021.
How Can You Defend Yourself Against Allegations of Holiday Retail Crime?
There is no specific criminal charge in Texas called “shoplifting.” Instead, a person suspected of stealing merchandise from a retail establishment is usually charged with a theft offense. To obtain a conviction on a theft offense, a prosecutor must provide evidence to convince a jury, beyond a reasonable doubt, that you:
- Unlawfully took something, and
- Had the intent to permanently deprive the owner of possession.
The most common and effective defenses to any theft charge, including shoplifting, are that your taking of the property was not unlawful or that you did not intend to permanently deprive the owner of possession.
- Mistake—One of the common arguments for a lawful taking is that the property was actually yours or that you reasonably believed that the property was yours. You might argue that you made an honest mistake in either believing the property was yours or that you had a reasonable belief that you had already paid for the merchandise.
- Lack of intent—You can also contend that you lacked the necessary intent to commit a theft. Maybe your hands were full and you put an object in your pocket, fully intending to pay for it. Perhaps you even bought other items, but forgot that you had the additional item in your pocket. If you can convince the jury that you lacked the intent to permanently deprive the owner without compensation, you may be able to defeat the charge.
- Illegal search—You can also argue that you were subjected to an unreasonable search in violation of the U.S. Constitution. A merchant must have probable cause to conduct any type of search, including a search of your person.
Contact the Proven Criminal Defense Attorneys at Bailey & Galyen
At the law offices of Bailey & Galyen, we have aggressively represented criminal defendants in Texas for more than four decades, including people charged with many different types of theft offenses. Contact us by e-mail or call our offices at one of the convenient locations listed below to set up a free initial consultation with a proven divorce and family law attorney. Our phones are answered 24 hours a day, seven days a week.
