ALBUQUERQUE, N.M. — Using someone else’s membership card to get into a Costco store for a shoplifting spree does not amount to burglary, the New Mexico Court of Appeals has ruled.
Burglary is defined as the “unauthorized entry” of a building or vehicle with intent to commit a felony or theft. In the case at hand, the defendant, Billy Baca, was convicted in District Court in Albuquerque in July 2012 of commercial burglary on the theory that he had gotten into a Costco store by means of “fraud, deceit, or pretense.”
The Appeals Court reversed Baca’s conviction in an opinion published earlier this month.
According to the Appeals Court’s opinion, Baca had gone to Costco with a group of people. None of them was a Costco member, but someone in the group showed the store’s greeter a card belonging to another person. A store employee testified at trial that while the public is not allowed in the store without a membership, it was not routine for employees to check photos on the cards at the entrance. The stores do post members-only signs.
Once inside the store, according to the decision, a member of Baca’s group began putting items into the purse of a woman in the group. The group bought bottled water and ice cream, and when they tried to leave, were detained by a loss-prevention employee for trying to steal the items in the purse.
In its opinion, signed by Judge Cynthia A. Fry, the Appeals Court recognized that Costco’s membership policies allow it to prohibit non-members from shopping there but was “unpersuaded” that the membership policies were meant to deter the types of entry covered under the state’s burglary statute. If the Legislature had intended the crime of burglary to cover anyone who enters a retail store with the intent to shoplift, “it could have structured our statute to reflect that intention.”
Membership policies such as Costco’s, Fry wrote, do not negate the presumption that retail stores are open to the public.
“It would be an absurd application of our burglary statute to punish those who shoplift from Sam’s Club more severely than those who shoplift from Walmart,” she wrote.
Juges Michael E. Vigil and M. Monica Zamora concurred in the opinion.