And sometimes shoplifters have no idea they’re shoplifting at all. It’s hard to believe, but it has happened! Take a trip with me to fantasy-land….
It’s hot out. Desert hot. You decide to invest in some bottled water because there’s not a Brita filter in the world strong enough to filter the taste of your rusty pipes out of the natural liquid flowing from the tap. It may not be good for the environment, but it’s your life—you make the choices. You head to the grocery store, grab a flat of twenty-four bottles, and stick it under the cart.
At the checkout all the rigmarole of loading the belt, handing the cashier your discount card, eyeing the cute bagger distracts you, and you forget that case of bottled water on the bottom rung of the cart. Everyone misses it, including the cute bagger, because you’re too busy chatting him up, trying to see if he’s single.
Feeling pretty flush from this stimulating conversation, you head for the automatic doors. Next thing you know, store security is there! Belt tight under bulging belly, crew-cut hairs needle-sharp. Loss Prevention wants to know what you were doing with that twenty-four-pack, pardner.
“I didn’t even know I’d missed it,” you plead. But it might be too late.
To accuse someone of shoplifting, there is a clear set of conditions that retailers need to meet. They need the same thing cops need (one reason among many ex-cops or moonlighting current cops are often the guys and gals following customers down the aisles and giving them the old stink eye—they’re used to keeping this stuff in mind): our ancient enemy, “probable cause.” Officer Unforgiving, star member of the store’s security squad, establishes probable cause when he believes he’s seen you hide an item in some way: pockets, bag, or—if he’s trying to stretch things because you were wearing a Johnny Cash shirt and he thinks The Man in Black is overrated—the bottom of the cart. He then has to have tracked your journey to the exit, watched you not get that item scanned at checkout, and catch you leaving the store.
We’re dealing with a fascinating situation here. It’s a little like the store is, for a minute or two, its own sovereign nation. Security guards know and love this. So what could very well happen in this moment is that the definition of probable cause could be stretched like a medieval mischief maker on a torture rack. The guard confronting you is assuming you were trying to steal that water, and he’ll also assume you may not know your rights. Which, again, is a thing enforcers can do in-store and out. This assumption will be used to make an ass out of you. The guard may even have a phone at the ready to dial 911 at the first inkling of trouble.
And our fine union perpetuates a common legal hiccup: variations in statutes are different from one state to the next. In one, a cop may laugh off the stray case of bottled water. In another, everyone will absolutely assume you concealed that H20 by choice and slap you with a shoplifting charge. I’ve seen cute little grannies get small jail time for stray tins of cat food that slipped beneath their big moth-eaten purses in the shopping cart while rich businessmen who accidentally “test-drive” cars for a month might have the vehicles recovered without charge, fodder for a story between the fellas at the next tee time.
You want to know why I’m focusing on this brand of petty theft at all? Two tiny but incredibly crucial words to the maintenance of your personal liberty: “wiggle room.” That idea that the letters of the law are all practicing yogis, and they’ve become pretty darn flexible. I use this elasticity to get folks out of trouble all the time, but the law bends both ways. Legal wiggle room can help prosecutors slap extra charges on just about any menu, and it can permit police to hold you for a period of time without filing charges. Even this small-time offense can escalate quickly if the heat’s turned up to the right degree.
But, back to your grocery store dilemma: if the valiant guardian of the cold cuts and the dairy aisles convinces you to return to the store to clear things up, they are acting reasonably. But one thing you should know is that store security can’t keep you locked in a starkly lit room with the flop sweat of a thousand past shoplifters hanging in the air. If they think they’ve got probable cause and notify the police, they can keep you in the store proper and track you as you wait for the cops to show, but they can’t limit you to their cell of shame. So, if you wanted, you could just wander around being watched, if it makes you feel less anxious. Or if you’re into that sort of thing.
The important thing now is—whatever the truth was, whether you really were stealing or not—you have the right to keep your mouth shut. Your rights are the same in this commercial dystopia as they are in the real world, so your best bet might be not to say anything.
In this situation or one like it, it may be smart to gauge just how convinced your accuser is—I’ve put forward a scene where security approaches a suspected shoplifter directly, but it’s just as likely to be a regular store clerk. If they don’t mention bringing in the cops right away, be proactive and invoke them yourself. It’s an admirably ballsy move that might make them back off, or it might double the time it takes for you to get a citation or get straight-up arrested. Go big or go home, right? Here’s hoping your accusers don’t want to deal with all that nonsense, and you simply get to go home. Best case, they just want their organic honey roasted tofurkey slices back, and to believe it was all a misunderstanding. And in that case, you will comply.
“Saul!” I hear you squeal. “That’s as good as admitting I was doing something as lame as stealing bottled water!”
That may be, but take the long view, Sparky. The inalienable right to not incriminate yourself in any circumstance remains. And really, trying to reason your way out of some hullabaloo may just end badly here.
You’d be surprised at how easy it might be to war-game all the shit that could go down if you’ve been caught stealing, even once. Maybe that’ll be my next book title: The Shit That Could Go Down. I’ll try to keep it simple here with a few things to remember about shoplifting, if it happens to you:
• A cool head can equal the upper hand. Stitch that into a sampler. Tattoo it on your knuckles. In very small print, I guess. Anyway, see the previous sidebar. Humans aren’t geared toward eternal conflict. Sometimes, though it can seem otherwise, people just want to get along with the least possible fuss. Dialing the drama back is the smart move in many situations, like here. Show some humility. Treat it as a simple misunderstanding between people of good intentions and see where that goes. If it goes straight to hell, jump the Good Ship Understanding and see the next point.
• Don’t go berserk about your constitutional rights when retail staff first stops you. On that score, the Fourth Amendment’s protection from unreasonable searches and seizures doesn’t apply until the cops show up. The innocent and the damned alike might rage against the lying of the clerks, or the guards, or whomever. The innocent want to because they are, of course, innocent. The damned do it because it’s a natural reaction to try and cover your ass by acting as the wounded party. Like when Janice in Accounting didn’t invite you to her birthday hootenanny and you went around telling everyone that you wouldn’t have gone to that yawnfest anyway. It doesn’t do either of you any good. The employees’ll think the lady doth protest too much, and all that jazz. Wait for your attorney to show up—we’ll be the megaphone voicing your injustice so you don’t have to strain your larynx right into a public disturbance charge.