Criminal Justice Interoffice Memorandum Supervising Attorney Paralegal

Criminal Justice

INTEROFFICE MEMORANDUM

Supervising Attorney

Paralegal

John Ebersol

Determine whether Mr. Ebersol was guilty of shoplifting. If Mr. Ebersol was guilty of shoplifting, determine what he can expect his punishment to be.

FACTS:

Mr. Ebersol purchased a flathead screwdriver from the hardware store on Saturday, but purchased a Phillips head screwdriver by mistake. Mr. Ebersol returned to the store with the intention of purchasing screws for his new screwdriver. When he discovered that the hardware store was out of flathead screws, Mr. Ebersol left the flathead screwdriver on the counter and left the store with a Phillips head screwdriver in his pocket. Mr. Ebersol was detained, interrogated for 2 1/2 hours, and released with shoplifting charges against him.

ISSUES:

(1) Is Mr. Ebersol guilty of shoplifting?

(2) If Mr. Ebersol is guilty of shoplifting, what can his expected punishment be?

BRIEF ANSWERS:

(1) Mr. Ebersol is not guilty of shoplifting.

(2) If found guilty of shoplifting, Mr. Ebersol can expect to serve 30 days or pay a $500.00 fine.

ANALYSIS:

(1) Is Mr. Ebersol guilty of shoplifting? No. There are two arguments that can be made in favor of Mr. Ebersol. Under Revised Statute § 22-15-992, any person who attempts to conceal or actually conceals property without providing adequate compensation for the item will be considered guilty of shoplifting. The key language in § 22-15-992 is "without providing adequate compensation." The issue is then whether or not the flathead screwdriver that Mr. Ebersol left on the counter could be considered adequate compensation for the Phillips head screwdriver that Mr. Ebersol placed in his pocket prior to leaving the hardware store. Analysis of Mr. Ebersol's guilt under § 22-15-992 first requires a determination of the cost of both the flathead screwdriver and the Phillips head screwdriver. If the cost of the flathead screwdriver is equal to or greater than the cost of the Phillips head screwdriver, then there may be an argument that, by placing the flathead screwdriver on the counter and leaving it at the hardware store, Mr. Ebersol provided the hardware store with adequate compensation for the Phillips head screwdriver that he placed in his pocket. In order to bolster Mr. Ebersol's claims that he provided adequate compensation to the hardware store, it would be helpful to investigate the hardware store's return policy. If the hardware store permits customers to exchange unused purchases, such a policy would bolster the idea that Mr. Ebersol's return of the flathead screwdriver provided adequate compensation to the hardware store. However, if the store has a strict no return/no exchange policy, the existence of such a policy weakens the argument that Mr. Ebersol provided adequate compensation for the Phillips head screwdriver.

(2) If Mr. Ebersol is guilty of shoplifting, what can he expect his punishment to be? If found guilty of shoplifting, Mr. Ebersol can expect his punishment to be 30 days in jail or a $500.00 fine. If Mr. Ebersol is found guilty, it can be argued that he should not be subject to 30 days in jail or a $500.00 fine, as prescribed by § 22-15-992. Under People v. Durant, 12 N.M. 26, 55 P. 200 (1901), a two-hour detention of a shoplifter by store security was determined to be a violation of the shoplifter's rights. Because of the length of time that the shoplifter was detained by store security, the Durant court determined that the shoplifter should suffer no sentence, however minimal. Durant is still good law. Mr. Ebersol's detention by the police was even lengthier than the detention in Durant. However, the issue is whether detention by the police, rather than by store security, for suspected criminal activity is a violation of a suspect's rights. There is support for the idea that Mr. Ebersol's rights were violated. Had the police determined that they had probable cause to arrest Mr. Ebersol for shoplifting, they could have arrested him and detained him for questioning. However, by failing to formally arrest Mr. Ebersol, but by detaining him, they placed him in a position where an arrest had occurred. A determination of whether or not Mr. Ebersol's rights were violated may depend on whether or not the officers complied with formal rules surrounding arrest and custodial interrogation (for example, Mirandizing Mr. Ebersol). Without that information, there is not enough information to determine whether or not Mr. Ebersol's rights were violated. Because of that, if Mr. Ebersol is found guilty he can expect to serve 30 days in jail or pay a $500.00 fine.

CONCLUSION: