Joseph A. Lombardo
It is a frequent theme in movies and television shows. A person slides a shirt or item into their bag and then casually tries to walk out of a store. Moments later a security guard springs across a table and tackles the person and places them in handcuffs. While the movies and television often make these scenes into pieces of comedy, for those who have been accused of shoplifting it is not laughing matter. People often ask if a security guard can actually arrest a person. While security guards are different from police officers, they are able to detain a person for a certain amount of time while they investigate if they have in fact shoplifted or if they are waiting for the police to show up to the store or location the security guard is working at. This blog post will explore what an arrest is, how security guards differ from police officers, and what are the possible penalties and fines for shoplifting.
What is an Arrest?
In criminal law, an arrest is the taking of a person into the custody of the law in order that he may be held to answer for a criminal offense or be prevented from committing one. Under this definition, the test for determining whether a person was arrested is that of the objective reasonable person. It is important to note that not every interaction a person has with a police officer or security guard will constitute as an arrest for purposes of the law. However, it is a general rule that if a person is placed in handcuffs and taken to a police station for questioning, then they can be considered to be under arrest.
As it pertains to security guards and in particular those in retail stores, N.J.S.A. 2C: 20-11 is an anti-shoplifting act which permits merchants to detain for investigation individuals reasonably suspected of shoplifting without incurring civil liability. The statute further provides that:
A law enforcement officer, or a special officer, or a merchant, who has probable cause for believing that a person has willfully concealed unpurchased merchandise and that he can recover the merchandise by taking the person into custody, may, for the purpose of attempting to effect recovery thereof, take the person into custody and detain him in a reasonable manner for not more than a reasonable time, and the taking into custody by a law enforcement officer or special officer or merchant shall not render such person criminally or civilly liable in any manner or to any extent whatsoever. [N.J.S.A. 2C:20-11e as relevant]
This means that if a police officer or security guard believes that you have been shoplifting then they may prevent you from leaving the store while they determine if you have in fact committed shoplifting.
Is a Security Guard Different from a Police Officer?
You probably have seen security guards in local malls and stores. Sometimes they are patrolling the store, and other times they are posted at the entrances and exits. Often security guards are wearing a uniform that looks very similar to those worn by police officers, including a duty belt with handcuffs. Security guards generally are there to protect both the store and the patrons. You may have even seen a security guard pull someone aside and place them in handcuffs. However, while security guards may look like police officers and perform some of the same functions, there are some important differences under the law.
The New Jersey Legislature enacted the Security Officer Registration Act (SORA) to help regulate security guards. Under this act, a Security Officer is any person:
Who performs any of the following functions or activities as an employee, agent, or subcontractor, of a security officer company, as defined in this section, for a fee, hire, or reward, notwithstanding the fact that other functions and activities may also be performed by the same person for fee, hire, or reward:
- Protection of person or property, real or personal, from injury or harm, or for any other purpose whatsoever;
- Deterrence, observation, detection, or reporting, of incidents and activities for the purpose of preventing the theft, or the unlawful taking, conversion, concealment, or misappropriation of goods, wares, merchandise, money, bonds, stocks, notes, or other valuable instruments, documents, papers, or articles; or
- Deterrence, observation, detection, or reporting, of incidents and activities for the purpose of preventing any unauthorized or unlawful activity, including but not limited to, robbery, burglary, arson, criminal mischief, vandalism, or trespass.
This act creates a clear distinction between who a security officer is and what they do as opposed to the functions of a police officer. In essence, a security guard is hired to perform a limited task related to one store or venue whereas a police officer performs many more tasks and has broader authority.
What is Shoplifting and What are the Possible Penalties?
The offense of shoplifting is codified under N.J.S.A. 2C:20-11. The statute identifies six types of shoplifting offenses:
- Taking possession of and carrying away merchandise with the intention of not paying;
- Concealing merchandise with the intention of not paying;
- Removing a price tag or label from merchandise with the intention of paying less than the full retail value;
- Moving merchandise from one container to another in order to pay less than the full retail value;
- Under-ringing an item in order to pay less than the full retail value;
- Taking a shopping cart with the intention of depriving the retail establishment of that cart.
Under the statute, shoplifting offenses are graded as follows:
- 2nd Degree: Shoplifting is a crime of the second degree if the full retail value of the merchandise was $75,000.00 or more. N.J.S.A. 2C:20-11c(1). A crime of the second degree is punishable by a term of imprisonment of five to 10 years (N.J.S.A. 2C:43-6a(2)), a fine not to exceed $150,000.00, or both (N.J.S.A. 2C:43-3a(2)).
- 3rd Degree: Shoplifting is a crime of the third degree if the full retail value of the merchandise exceeds $500.00 but is less than $75,000.00. N.J.S.A. 2C:20-11c(2). A crime of the third degree is punishable by a term of imprisonment of three to five years (N.J.S.A. 2C:43-6a(3)), a fine not to exceed $15,000.00, or both (N.J.S.A. 2C:43-3b(1)).
- 4th Degree: Shoplifting is a crime of the fourth degree if the full retail value of the merchandise was at least $200.00 but does not exceed $500.00. N.J.S.A. 2C:20-11c(3). A crime of the fourth degree is punishable by a term of imprisonment not to exceed 18 months (N.J.S.A. 2C:43-6a(4)), a fine not to exceed $10,000 or both (N.J.S.A. 2C:43-3b(2)).
- Disorderly Persons: Shoplifting is a disorderly persons offense if the full retail Offense: value of the merchandise was less than $200.00. N.J.S.A. 2C:20-11c(4). A disorderly persons offense is punishable by a term of imprisonment not to exceed six months (N.J.S.A. 2C:43-8), a fine not to exceed $1,000 or both (N.J.S.A. 2C:43-3c).
Depending on the degree of shoplifting that you are charged and possibly convicted of you could face fines up to $150,000.00 and a possible prison sentence of up to 10 years.
Contact an Experienced New Jersey Criminal Defense Lawyer
If you or someone you love is facing these charges, it is critically important to have experienced legal representation on your side. To start discussing your options in a confidential case evaluation completely free of charge, call New Jersey criminal defense attorney Joseph Lombardo at (609) 418-4537 today.
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