Theft

Theft

General Property Concepts

• Property is divided into two types: real property personal property• Two important rights to property are the right of ownership the right of possession of the

property

General Property Concepts

• Property ownership may be in the form of sole ownership. It could also be in the form of joint ownership. The property may be owned by a corporation or a business partnership. Property ownership may be vested in a government unit.

• Lawful possession of property takes many forms. The owner may have the possession of property or may permit another person to have lawful possession and use of the property. An employee or agent of the owner of the property may have possession.

General Property Concepts

• A thief has neither the lawful right to possession nor ownership of stolen property. Therefore, in almost all situations, a thief cannot convey lawful title to stolen property to another person, even if that person is an innocent good-faith purchaser of the property.

Theft or Larceny

• A typical theft or larceny statute today would require an unlawful (1) taking (2) property of another with (3) intent to deprive the owner of possession thereof.

The Taking

• Taking refers to the act of obtaining physical possession or control of another’s property. A taking can occur by acts of a stranger, by a trusted employee, or even by a spouse. It can be by one having no right to possess the property or by one with limited rights to that possession. The key to taking is that the thief exercises unauthorized dominion over the property.

Direct Taking

• The most easily understood taking is direct taking, where the thief directly takes physical possession of another person’s property. This kind of taking requires the thief to obtain actual physical possession of the property, even if for a short time.

The common law and some states today require both taking (“caption”) and carrying away (“asportation”) of the stolen property. Carrying away requires that the property be moved in some manner. However, even the slightest change of position of the property satisfies this requirement. Thus, in the example, in a state that retains a carrying away requirement, the smallest movement of the bike would be sufficient.

General Property Concepts

• Bailees and pledges also have the lawful possession of property that belongs to others.

• A thief has neither the lawful right to possession nor ownership of stolen property.

The Taking of Lost and Mislaid Goods or Goods Delivered by

MistakeA taking may also occur where

the initial physical possession of the property of another is not unlawful but where the person in possession acts in a manner showing an intent to deprive the owner of ownership rights.

Taking by Trick, Deception, or Fraud

Taking has been achieved by the use of many tricks deceptions, and fraud. The owner of the property may be deceived by false representations that cause the owner to give up possession of property. Con games fall into this category. Modern theft and larceny specifically define these forms of taking as elements of the crimes of theft and larceny.

Embezzlement

This forbids a person already in lawful possession of money or property from fraudulently converting the money or property to his or her own use.

Many states have also solved this problem by expanding the “taking” in their theft or larceny statutes to include “users, transfers, conceals or retains possession.” Under such a statute, a stockbroker, lawyer, or cashier who stole money could be charged with theft or larceny.

Defining What Property Can Be Stolen

• Under the common law, only tangible personal property can be stolen.

• Illinois defined property subject to theft as “anything of value”, including real state, money, commercial instruments, tickets, and written documents.

• Minnesota defines property to include documents and things growing on or affixed to land.

Defining What Property Can Be Stolen

• Section 223.2 of the Model Penal Code Defines “theft by unlawful taking or disposition” as

1. Movable Property2. Immovable Property

Under modern statutes, not only personal property can be stolen but also real estate and fixtures.

Value of Property

• In charging theft or larceny, the state must introduce evidence showing the value of the property alleged to have been stolen.

• The value of property stolen, in most instances, determines whether the charge is a misdemeanor or a felony.

• The value of the property must be determined by the court or jury.

Value of Property

• Statements by the owner concerning what he or she paid for the property, how long it was possessed, its replacement cost, and its condition are admissible in determining value.

• Evidence of the value of comparable property in comparable condition is admissible to show the value of the property at issue.

• Experts and appraisers may in some instances, be called into court to testify as to value.

Property of Another

To prove theft or larceny, the state must show that the property belonged to another. A showing that the property belonged to a city, a school, a corporation, or an individual would suffice.Under the modern law, a husband and wife are not treated as a single entity for many purposes, including the criminal law of theft. As a result, one spouse can be guilty of theft of the other spouse’s property, because that property qualifies as “Property of another”.

Property of Another

The Model Penal Code Section 233 (7) defines “property of another” to include property which the defendant has an interest, so long as the of the other person is one the defendant “is not privileged to infringe.” Although each partner in a partnership, or each holder of a joint checking account, may have access to partnership funds or the checking account, they are not privileged to infringe on the other’s rights and can be guilty of theft.

Difficulties in Identifying Property

Some property is difficult for owners to identify.

Example:Diamond and other valuable stones

The stolen property must be identified by introducing evidence showing no reasonable doubt as to its identity. For this reason, law enforcement agencies urge making property in such ways that identification marks cannot easily removed or obliterated.

Abandoned Property

If the property has been abandoned or if the owner of the property cannot be located, then theft or larceny cannot be proved.

• Abandonment has been define as the relinquishment or surrender of property or the rights to property.

Intent to Steal

Proving Intent to StealTheft or larceny requires specific

intent to deprive the owner of possession of the property . The intent to steal may be proved by direct evidence or by circumstantial evidence. Generally, the fact finder (jury or judge) concludes and infers an intent to steal from the conduct and acts of the defendant.

Shoplifting

The crime of shoplifting, or retail theft, is a form of theft and larceny. Shoplifting has the same essential elements as theft and larceny:

(1)A taking and carrying away(2) of the property of another(3) without consent and (4) with intent to steal and deprive the

owner of possession of the property.

Taking and Carrying Away in Shoplifting

If the customer exercises dominion and control wholly inconsistent with the continued rights of the owner, and the other elements of the crime are present, a larceny has occurred. Such conduct on the part of the customer satisfies the “taking” element of the crime.

Proving the Crime of Shoplifting When the Suspect has not Left the Store

Court are virtually unanimous in holding that goods need not

leave the store for theft to occur. The New York Court of

Appeals explained the result as follows:Case Law from other jurisdictions seems unanimous in holding that shoplifter need not to leave the store to be guilty of larceny . . . . This is because a shopper may treat merchandise in a manner inconsistent with the owner’s continuous rights - and in manner not in accord with that of a prospective purchaser – without actually walking out of the store.

Proving the Crime of Shoplifting When the Suspect has not Left the Store

Inconsistent actions might include hiding the goods under the shopper’s coat or other clothes. As the Maryland Court of Special Appeals held in Lee v. State, if merchandize is secreted under the clothing, it meets the requirement of concealment, and it does not matter id the concealment was for a short time or if the shopper did not leave the store.

Requirement of Probable Cause Based on Personal Knowledge

Customers are not to be treated like shoplifters until hard, firsthand information demonstrates that shoplifting has occurred.

US Supreme Court defined probable cause as “facts and circumstances within their knowledge and which they had reasonable trustworthy information [that] were sufficient in themselves to warrant a man of reasonable caution in the belief” that the suspect had committed a crime.

Criminal or Civil Prosecution of Shoplifters?

Shoplifting cases can be handled in a variety of different ways, depending on the circumstances of the case. Following are some of the alternative options in handling shoplifting cases:

• When the amount stolen is very small or the offender is very old, a scolding and warning might be used. Parents of children could be called, or the police could take the child home and inform the parents of the problem. Many states have laws making parents liable in a civil action for goods damaged or taken by a minor in a theft.

Criminal or Civil Prosecution of Shoplifters?

• More than Thirty States have passed laws giving merchants and retailers authority to extract payments and fines from thieves they catch in the act. The offender could sign an agreement under a civil settlement of shoplifting law, acknowledging guilt and agreeing to make the payments to the merchant. In this way, the merchant can save time and expenses by bypassing the police and the courts. The advantages to the shoplifter are that a criminal record is avoided and the incident is taken care without a court appearance.

Criminal or Civil Prosecution of Shoplifters?

• Because criminal courts are very crowded, shoplifting cases are not ordinarily changed unless the amount taken is very large. Civil citations are issued in many cases, and offenders can pay the fine in the same way as parking tickets are paid. Or the offender can be ordered to appear in a municipal court, where the case is heard by a judge in the same way speeding and other traffic violations are heard.

Criminal or Civil Prosecution of Shoplifters?

• Criminal charges are likely to be issued in shoplifting cases when

The Shoplifter commits a serious assault or battery in resisting detention or in attempting to escape. Assault on a law enforcement officer is a felony in probably all states.

Escape is made from a law enforcement officer while the defendant is in custody, which is a crime. Some states also forbid escape from a merchant who has lawfully detained a shoplifter.

Criminal or Civil Prosecution of Shoplifters?

The shoplifter has a concealed weapon or illegal drugs on his or her person. On the shoplifter is in possession of a criminal tool or a shoplifting device.

The shoplifter causes considerable damage to the merchant’s property in an effort to escape. Many states make criminal damage to property a crime if the damage is done either “intentionally” or recklessly”.

Criminal or Civil Prosecution of Shoplifters?

The shoplifter obstructs and hinders a law enforcement officer by giving the wrong name and date of birth, or obstructs by refusing to obey a law enforcement officer.

The shoplifter has a long prior record of theft and/or has a serious drug or alcohol problem, which the person is stealing to support.

The shoplifter commits other crimes.

Other Retail Theft Crimes

• Tag Switching: A lower price is placed on a store item.• Underchanging by Checkout Clerk: The checkout clerk

underchanges a friend or conspirator.• “Storming” or Mass Shoplifting: Two or many more

people storm an all-night or late-night convenience store, take items and then leave.

• Till Tapping: Reaching into a cash register after distracting the employee, or grabbing money from an open cash register.

• Boosting: This is an organized form of shoplifting used by gangs, in which goods in large quantities are placed in booster bags and then sold by the gangs at huge discounts.

Fraudulent Use of Credit Cards

Credit cards are a means of extending short-term credit. The three parties ordinarily involved in a credit card transaction are

The Issuer of the Credit Card The Credit Card User The Seller of the Merchandise or

provider of the service.

Obtaining Credit Cards and Bank Cards in Fraudulent Use.

Thieves obtain credit cards to commit crimes in the following ways:

Counterfeiting cards (29%) Stealing credit cards (22.4%) Obtaining lost and mislaid credit cards (16.4%) Theft from the mail (13.7%) Making fraudulent applications for credit cards

(3.2%) Placing telephone and mail orders with false

cards (9.3%)

Criminal Use of Bank Cards and Credit Cards

Fraudulent charges using stolen, counterfeit, and lost credit cards are made more frequently during thre Christmas Season that any other time of the year. Merchants and salesclerks are busy and probably do not take the precautions they would at other times of the year. Purchasing goods and services is the principal type of credit card and bank card fraud in the United States. Automated teller machines (ATMs) also present another means of theft and fraud.

Criminal Use of Bank Cards and Credit Cards

A large ATM fraud occurred with one bank in 1995. The machines are supposed to give no more than $200 per day to any single card. However, because of a program changeover, thieves were able to obtain $346,770 from a single card by making 724 withdrawals from many different machines.

Check Violations

Worthless Checks or the Checks that BounceMost checks that bounce are the result of

negligence, mistakes, or bad bookkeeping. Persons writing NSF checks or ISF checks generally make the checks good within the period provided by the statutes of the state. For example, Florida Statutes, Section 832.07, require that a bad check be made good within seven days or a criminal prosecution may be commenced, and the writer of the check is liable in a civil action for triple the amount of the check

Check Violations

Worthless Checks or the Checks that BounceBad checks are a constant problem for

retail businesses and banks, as the crime is easy to commit and the money losses are huge. Not only are the money growing every year, but an FBI Law Enforcement Bulletin article of 1996 pointed out that half of all check fraud in the United States is committed by professional and organized groups. The article pointed out that even street gangs are using sophisticated means to commit check fraud.

The Crime of Uttering

• When a person signs a false name in the presence of a bank clerk to a check that does belong to him or her, the felony crime of forgery has been committed. The bank clerk can then testify. When a forged check is presented for payment, the felony of uttering has been committed.

• The crime of uttering a forged instrument is most often when a person presents a forged instrument for payment.

• The crime of uttering can also be committed with counterfeit money or raised bills.

Operations of Check-Forging Rings

Check-forging rings operate in all large cities in the United States. Some of their blank checks are obtained as the result of burglaries or thefts from business firm. Other checks are the products of a desktop computer, which is a new tool for making false copies of checks and other documents.

Passing Forged Checks and Other Counterfeit Securities in Interstate

Commerce

In the 1930’s, the U.S. Congress became concerned about the use of fraudulent securities in interstate commerce. The Congress amended the National Stolen Property Act (58 Statute 1178) by also forbidding “falsely made, forged, altered or counterfeit securities” to be used and passed in interstate commerce. The U.S. Supreme Court recognized that the “general intent” and broad purpose” of Congress was to “curb the type of trafficking in fraudulent securities that often depends for its success on the exploitation of interstate commerce.

Passing Forged Checks and Other Counterfeit Securities in Interstate

Commerce

The National Stolen Property Act, therefore, makes it unlawful to transport not only stolen property in interstate commerce but also fraudulent securities, which include forged or “falsely made” checks.

Check Kiting

The Check kiting can be compared with a shell game at a carnival, in that manipulations are used in both to deceive. The most common reason for the deception in check kiting is to create a false bank balance from which to draw and run off with money that does not belong to that person.