Chicago Retail Theft Defense Lawyers
Accused of Shoplifting in Illinois? Call Mitchell S. Sexner & Associates LLC today at (312) 644-0444.
While retail theft or shoplifting may seem like a minor offense, it is considered a serious crime in Illinois and the punishments can be quite severe. Depending on the details of the theft, the penalties include harsh fines and more than one year in prison. Defending against a charge of shoplifting can be difficult, especially if you try to undertake the task on your own.
Don't try to deal with any criminal charge, even shoplifting, without the help of an experienced Chicago theft defense attorney. In Illinois, these crimes can sometimes be upgraded into felonies. If you or someone you know has been charged with retail theft, call Mitchell S. Sexner & Associates LLC at (800) 996-4824 today. Tell us about your case and we can discuss your defense options and provide free information about how your rights can be protected.
What Is Retail Theft?
Retail Theft generally refers to taking, possessing, carrying away, secreting (hiding) or transferring retail merchandise in such a way as to deprive the merchant of its full value. It’s commonly referred to as shoplifting. Retail merchandise is any type of item that is offered to the general public for sale and may include clothing, household items, food, electronics, or basically anything at all that has a value of more than zero dollars. Even if the item is used, is worth almost nothing (like a gumball), or even it’s on the clearance shelf and has been marked down to almost nothing, as long as it’s worth more than zero, it can still be the subject of a retail theft charge.
In Illinois, our retail theft law can be found at 720 ILCS 5/16-25 and that statute describes when a person is considered to have committed this crime in our state. It includes:
This category is the most common type of retail theft case and is what most people think about when they speak of retail theft. It involves circumstances in which a person does one of the following with a retail item found in a retail mercantile establishment:
To possess an item means to have control over it. Of course, possession always includes circumstances where a person takes something and holds it in their hand, puts it in a bag or puts it in their pocket so that they can exercise control over the item and do with it as they choose. But it also includes circumstances where the item is placed, secreted or hidden in a place where although they are not physically touching it, the item is still technically within their control because they can later do with it as they wish. For instance, if a shopper takes something off the shelf and then goes into the bathroom where they place the item in the garbage or behind the toilet, most judges would still consider this to be a circumstance wherein the shopper has taken control over the item and deprived the store owner of the use of that item by hiding or secreting it away.
Carrying the item out of the store is considered retail theft or shoplifting regardless of whether it’s carried in that person’s pocket, bag, shopping cart, or in the belongings of another person (for instance, if it was put into another person’s cart who then walked out of the store). As long as the defendant “caused” the item to be “carried away”, they’re still responsible for what happened even if they didn’t carry it themselves.
If the person takes something and gives it to another or assists the other person in depriving the merchant of the use of that item, it constitutes shoplifting or retail theft. If an item actually has a “title” that attaches to it that can be transferred such as a car, and this is done illegally and without authorization, this might also be considered a violation of this statute.
The merchandise is also required to meet certain other criteria in order for the defendant’s actions to run afoul of this criminal statute in Chicago and across Illinois, which include that it must either be:
- Displayed – Which means that it is put out on a shelf, put in a display case, or put out in some other manner that suggests it’s available for purchase by the consumer.
- Offered for sale – Even if the item is not physically displayed in a store, if it’s offered for sale in some manner, it can still be retail theft.
- Held or stored – Even if the item is in the back room, storage area or some other place where the owner didn’t intent to specifically offer it for sale on that day, it can still be shoplifting.
Even if a person actually pays for merchandise, it doesn’t mean that they can’t necessary be charged with a retail theft or shoplifting case. That’s because anytime a person does anything that deprives the property owner of the “full value” of the merchandise, it’s still a theft. Some examples include:
- Alteration – Taking a price sticker, price tag, or any marking that is intended to indicate what an item costs and then changing it, whether by writing over it, tearing it, changing the bar code or any such method in any way that changes the requested price.
- Price Switching – Taking a sticker or price tag from one item and putting it on another so as to deprive the store of the full value of the merchandise.
- Removal – Taking a sticker or other price marking off of an item in an effort to pay less than the actual asking price.
Anytime that a person takes an item and transfers it into a different container with the intention of depriving the owner of the full value of that item is also considered to be a retail theft. Some examples might include:
- Placing various smaller items into a larger item like a garbage can and then purchasing the larger item without informing the merchant of the items within
- Transferring the same type of items from one container to another container containing the same type of item but marked at a lower price
- Adding additional items to an existing package containing other items
Accidents happen, especially for cashiers and other retail store employees who deal with volumes of customers in a short time period. So, if a cashier mistakenly scans an item or incorrectly enters a wrong price, it’s not a crime; it’s just a mistake. Perhaps that employee should be fired for not doing a good job, but they certainly shouldn’t be arrested.
On the other hand, if a retail employee purposely “under-rings” items that are offered for sale, that’s an entirely different problem. Under-ringing may take any number of forms, which may include:
Many workers are given benefits by their employers which allow them either free or discounted merchandise. In the case of a food job, maybe it’s a free lunch each day. At a big store like Target or Macy’s, maybe it’s a discount on certain items. But regardless of the discount, it’s usually intended just for the employee or maybe their immediate family. And there are almost always certain limitations about how much and how often the benefit can be used.
The problem (and the potential for a criminal charge of retail theft) arises when an employee misuses the benefits or their discretion. An employer doesn’t intend for someone to use their “employee discount” for their family and friends on a constant basis.
Scratch and Dent
When an item is scratched, dented or damaged in some way, an employee may be authorized by management to reduce the price of the item for a customer. But this authority is not intended to be used a favor for friends and family. When it’s used improperly, this may also constitute retail theft.
Pay to Play
Sometimes, an employee not only use discounts or reduces pricing for family and friends as a favor but gets paid by others to do so. When this happens, an employee may also be charged with retail theft.
Shopping Cart Theft
Think that you need to leave the store with some stolen items in your shopping cart in order to be charged with retail theft? Think again! In Chicago and across the State of Illinois, if you take a shopping cart off the premises of a retail establishment with the intention of depriving the retailer of the use of that cart, it’s a retail theft. Just like taking anything else of value from someone else, a shopping cart has value as well.
Whenever a person represents to a store that they own an item and intentionally attempts to use that item to obtain credit, money, or other property in exchange, this will likely be considered as a retail theft. Some such examples include when a person attempts to return or exchange an item:
- That he/she knows was not purchased at the same retailer, but from another store
- That was taken from the shelf in the store and never even purchased
- That was stolen elsewhere
- That was altered in some way to make it appear to have been purchased at that store
Theft Detection or Shielding Devices
It’s against the law in Chicago and everywhere else in Illinois to use a device that can be used to deprive a retailer of the full value of their merchandise, or even possess a device with the intention to do so. Some such methods and devices include:
- Magnets and other devices that are capable of removing ink packs and other security tags from clothing, electronics and other high-priced items
- A booster bag or booster box is a device that allows a person to conceal and steal a large quantity of items. The bag or box is lined with metal or tinfoil and works by interfering with the detection of the security tag when leaving the store
Failure to Return Leased Property
Whether it’s a leased / rented vehicle or rent-to-own furniture, these items ultimately belong to the store unless or until they are fully purchased by the consumer. If a car rental payment isn’t made or a monthly furniture installment is late, the store owner is entitled to demand return of the item or payment in full within 10 days of the written demand. Failure to comply with such a demand may make the person subject to a charge of retail theft.
Theft by Emergency Exit
When a person commits a retail theft, but while doing so uses a designated emergency exit during the commission of the crime, then the person may be charged with a violation under this portion of the retail theft law in Illinois.
Why is “Intent” Important in a Retail Theft?
The last, and perhaps most important requirement that must be met before a person can be held responsible in court for a retail theft involves the question of “intent”. Central to our American system of laws is the concept that people should not be charged or prosecuted for crimes that they didn’t commit intentionally. For instance, if you had a serious car accident and the other person was badly injured, you might be charged with any number of traffic offenses. But if it truly was just an accident because you failed to stop in time to avoid the collision, you’d likely only receive a minor moving violation, even if the other driver died. Yet if you actually intended to ram the other car for whatever reason, you might be charged with serious jailable crimes such as reckless homicide or even murder.
Accidents Sometimes Happen
In the same way, retail theft depends greatly on the person’s intention (what was in the person’s mind at the time of the event). A very common example often involves a distracted shopper. The person may be shopping with multiple children, crying children or unruly children, or the shopper may be on their phone wrapped up in an important conversation, or they may be mentally handicapped or suffer from dementia. Virtually anything has the potential to distract a person from the task at hand.
We had a case some years back that involved a gentleman who was in his 90’s. He was in a major home improvement store and wanted to purchase a tool. He had it in his hand and was walking towards the checkout when his wife called him and asked him to go to the grocery store and pick up some milk on the way home. He was so distracted that he walked right past the cashier, left the store and was arrested with the tool still in his hand. The prosecutor and Judge accepted that this was an accident and that he didn’t really have the “intent” to commit a crime. Therefore, this offense was ultimately dismissed.
These days, a great many stores have self-checkout lanes and many retail theft charges involves such transactions. When a person fails to scan an item but places it in their bag and walks out without paying for that item, it may be a retail theft. Or it may not. It all depends on the person’s intent. Obviously, it’s easy to just “say” it was an accident or a mistake that the item didn’t scan properly. But it’s another matter to convince the Judge or the State’s Attorney of this. Just like any criminal case, in the final determination, it may ultimately come down to the testimony of witnesses and the available video evidence.
Witness Testimony and Store Videos
Of course, a Judge can’t just look into your brain to figure out what you really intended – and lie-detectors are pretty much just something they do on TV. So how can a Judge determine such a thing? It’s done by listening to your testimony at trial, as well as the testimony of the police, store security and other witnesses as they paint a picture for the Judge about the events of the day. But even more important is video evidence as most stores have videotape and cameras. Does the video show you looking around nervously? Do you exit the store swiftly and appear to hide your face? More importantly, is there video showing you hiding items? These are just some of the many pieces of evidence that can shed light on a person’s intent in a video.
Storeowners Always Watch for Signs of Retail Theft
According to national statistics, retail theft accounts for more than Fifty Billion ($50,0000,000,000.00) dollars in lost revenue to store owners, retailers and other sellers of merchandise each year. So, it should be no surprise that they are constantly on the look-out for signs of retail theft within their commercial establishment. Some of the typical signs that owners and security personnel watch for include:
- Frequent visitors – People who visit the store multiple times on a single day, visit often, or don’t even come in, but look through the window without typically buying anything. Owners may use facial recognition software to identity suspicious shoppers and ask them to leave, as long as they’re not doing it based on discriminatory policies.
- Inappropriate clothing – People who are wearing bulkier or warmer clothing when the weather is nice outside while most others are dressing lightly. Larger coats and scarfs are often used to hide shoplifting activity.
- Large bags or clothing – Large purses, bags, strollers or other items that can be used to conceal merchandise are often scrutinized by store security personnel.
- Looking at many items – Shoplifters often examine multiple items during their stay in the store, so security officers are often looking for this type of activity.
- Distracting employees – Sometimes asking for out-of-stock items or asking excessive questions of store personnel is used as a distraction to help others steal merchandise.
- Watching employees – When a shopper seems to be paying more attention to the store employees than to the merchandise, this can also be a retail theft warning sign for store owners.
- Unusual actions – People who are sweating profusely, looking around constantly, fidgeting, scratching, touching their face, or won’t maintain eye contact may arouse suspicion.
- Changing room issues – When multiple people use the same changing room or take a large amount of clothing into the room at the same time, this may be a sign of potential retail theft.
- Security camera watching – It’s not normal for shoppers to care where or if a store has security cameras, so when a visitor seems to be taking notice of the existence of such cameras, it may be an indication.
- Fast exit – People who walk quickly out of the store may be an indication that a retail theft has just occurred as well.
Evidence of Concealment
Under the Illinois retail theft law (720 ILCS 5/16-25), concealed merchandise means an item that although it may be partially visible, cannot easily be seen through ordinary observation. The law states that:
- When an item has been concealed on a person or amongst his or her personal items, AND
- The person takes that merchandise past the “last known” point for providing payment for that item (which usually means the last cash register)
- The Judge is allowed to make a permissive inference (which means that he or she may assume) that the person intended to commit a retail theft by depriving the merchant of the item without paying its full value.
Punishment for Retail Theft in Chicago
Penalties for retail theft depend upon the severity of the charges, the amount taken, and whether the offender has been charged with a similar offense in the past. An experienced retail theft attorney will always explore a trial in order to get the charges dismissed. But even if your defense attorney cannot get the case against you dismissed, he or she may be able to argue for an amended or lesser charge, which can have a tremendous impact on the potential punishment you may face if convicted. Some of the penalties / sentences for a retail theft in Illinois include:
- Violation of the retail theft law is generally a Class A misdemeanor if the retail value of the items are under $300 (or under $150 for motor fuel)
- Possession or use of a theft detection device remover or a theft detection shielding device is a Class A misdemeanor for a first offense, but a Class 4 felony for subsequent offenses
- Theft by emergency exist involving merchandise under $300 in value is a Class 4 felony
- If the property is under $300 in value (or $150 in motor fuel), but the person has been previously convicted of one of the following crimes, then the charge is a Class 4 felony. If the value of the property is over $300, and the person has been previously convicted of any of these crimes, then the offense is a Class 3 felony. These crimes are:
- Home Invasion
- Armed Robbery
- Residential Burglary
- Possession of burglary tools
- Unlawful use of credit cards
- Retail theft involving over $300 in merchandise (or $150 in motor fuel), whether committed in one transaction, or in separate events committed by the same offender as part of a continuing course of conduct involving one or more stores over the course of a year, is a Class 3 felony. If such continuing conduct involves theft by emergency exit, the offense is a Class 2 felony.
Sentences for Retail Theft
- Class A Misdemeanor: Up to 1 year in jail and a fine of up to $2,500.
- Class 4 Felony: 1-3 years in prison and a fine of up to $25,000.
- Class 3 Felony: 2-5 years in prison and a fine of up to $25,000.
- Class 2 Felony: 3-7 years in prison and a fine of up to $25,000.
Generally, retail theft misdemeanors are eligible for a sentence of supervision, which would allow for a future expungement (cleaning of the “rap sheet” and destruction of fingerprint and mug shot data) under many circumstances. Sometimes, a special type of negotiated deal can also be worked out with the prosecutor which would actually provide for a complete dismissal of the charges.
For felonies, supervision is not an available sentence, although a deferred prosecution may sometimes still be an option. Despite the jail and prison sentences noted above, retail theft is still generally a probationable crime and jail / prison is not a requirement, although depending upon the circumstances, it may apply.
In addition, the store can demand payment of civil penalties from the alleged shoplifter. Illinois law allows stores to add additional monetary penalties to the value of the items taken during a theft. It’s very common to receive demand letters for such penalties in the mail from the store involved or their lawyers. But paying a store’s penalty does not mean the criminal case will be dropped or that it will be any advantage whatsoever in the criminal matter. So, speak to an experienced retail theft attorney first before paying any money to the store or their legal representatives.
Other Retail Theft Related Crimes
Penalties for retail theft range from misdemeanors to high level felonies. So clearly, being charged with a retail theft is a serious matter. But sometimes, depending upon the circumstances, a defendant may be charged with other related crimes as well. Some of these include:
- Battery: The vast majority of people charged with retail theft comply with store security when approached and accompany them to an office to discuss what has occurred. But sometimes, someone accused of theft may resist, pull away, strike or hit the security officer or police officer in an attempt to get away. When this occurs, the offender may receive an additional charge of battery or assault.
- Criminal Damage to Property: If anything is intentionally damaged while in the store, the offender may also be charged with this crime. Common examples include damaging an item’s packaging, damaging an item by removing sensors or price tags, or damaging display cases.
- Resisting Arrest: Although a shopper can’t usually be charged with resisting arrest involving store security, if the police have been called to the scene and the accused refuses to comply with a lawful order of the police officer, this crime may also be charged.
- Identity Theft: In some cases involving false returns or exchanges, if the person uses another’s identity or ID card when doing so, this offense may be charged.
- Unlawful Use of Credit Card: A defendant may also be charged with this crime if he or she used a credit or debit card that was altered, forged, or belonged to another person to deprive the retailer of money or property.
Defenses to a Retail Theft Crime
Whenever a defendant is charged with retail theft, whether in Chicago, Arlington Heights, or anywhere in Illinois, the first thing that a knowledgeable criminal defense attorney will do is to carefully examine the case for possible defenses. Some of the defenses that have been proven to be successful include:
- Lack of intent: The State’s Attorney or prosecutor must be able to convince the Judge that the defendant intended to steal money or merchandise. This is usually accomplished through the use of video evidence and testimony of witnesses such as security officers. If the defense attorney can put a reasonable doubt into the mind of the Judge or jury about whether the event was intentional, the defendant will be found not guilty.
- Incomplete crime: Although there is a presumption that hiding or concealing merchandise is with the intent to commit a retail theft, until the shopper leaves the last know point of purchase (usually the last cash register), it should not be assumed that he or she intended to commit a crime.
- Lack of eyewitness testimony: Ultimately, the prosecutor and police can’t actually prove a retail theft case without actual eyewitness testimony. Even if there’s video of the incident, a video isn’t allowed to “speak” during a trial without a live person who appears in court. In most shoplifting cases, this person is the security employee who witnessed the alleged crime. If they have quit their job since the offense or are not available for any reason at all to testify in court, the State’s case may collapse and the defendant may be found not guilty.
Some of the defenses that are unlikely to be successful however include:
- Money in pocket: Just because a defendant can prove that he or she has a lot of money in the bank, makes a lot of money in their job, or had hundreds of dollars in their pocket when they were arrested for the theft of items that may have been very inexpensive doesn’t mean that they didn’t have the intention to commit a theft.
- Didn’t exit the store: It’s not required for an offender to actually exit the store for a retail theft to occur; just that they pass the last known point in the store for them to purchase the item. As a matter of fact, the vast majority of time, an accused shoplifter is stopped just as they are about to exit, not afterwards. This is because once they leave, it’s more likely that the person may run and matters may become more dangerous.
- Planning to return: It’s ultimately up to a Judge to determine whether he or she believes that a person exited the store to get better reception for an emergency phone call or to purchase other items offered for sale outside, intending to return. Most Judges will feel that the shopper should have left their shopping cart inside if this was their intention.
- Intoxication: Voluntary intoxication (even if the person was so drunk or high that they can’t even remember the event) is generally not a defense to almost anything in Illinois. If the person was “involuntarily” intoxicated (slipped a drug or drink was spiked), that however could be a defense if it could be proven.
- Offered to return or pay: After a shopper is in custody by security or police, an offer to immediately pay for or return the merchandise is not an acceptable defense.
Contact an Experienced Chicago Retail Theft Lawyer Today
Don't try to deal with any criminal charge by yourself without the help of an experienced criminal defense attorney. Especially if you’re charged with retail theft, this is an especially concerning type of charge because it’s considered to be a “crime of moral turpitude”, which means a dishonest crime. That can spell trouble for a person’s future as they apply for schools, jobs and in the case of non-citizens, immigration proceedings.
The most important thing that a criminal defense attorney can do is to try to achieve a result that later allows the defendant to remove (expunge) the arrest from a person’s rap sheet if at all possible. Since 1990, Mitchell Sexner & Associates LLC has been helping our clients through this process. Call 7 days a week to speak to a member of our experienced legal team at (312) 644-0444.