State’s shoplifting laws handcuff retailers

The other day, I walked out of a hardware store without making a purchase because I couldn’t get a clerk to jacobsen_joel_BizOcome unlock the anti-theft hook from which the item I wanted was dangling. My petulance came cheap because I knew I could buy the same item at any number of other places, but it made me wonder how often anti-theft devices do double duty as anti-sales devices.

According to the 24th annual National Retail Security Survey, American retailers lost $16.7 billion to shoplifters in 2014. Since the study looked at inventory shrink, it apparently didn’t factor in the cost of anti-shoplifting devices – or lost sales to customers irritated by them.

Nor, apparently, did it include the cost of chunky tags on clothing, swiveling surveillance cameras and the hiring of loss-prevention specialists, those retail employees whose jobs have nothing to do with selling or customer satisfaction.

We’ve grown accustomed to the sight of uniformed guards standing sentry near store exits and patrolling the parking lot the way cowboys once rode the fence line. According to federal statistics, private security guards now outnumber certified law enforcement officers by a 3-2 margin. Security, in America, is increasingly a product to be purchased.

New Mexico law gives merchants a privilege to detain suspected shoplifters for the purpose of recovering stolen merchandise. But it’s not a privilege to be exercised lightly. It arises only if the merchant’s suspicions are reasonable, and requires that the detention be conducted “in a reasonable manner” and last only “a reasonable time.”

As always in the law, the appearance of the word “reasonable” signals a point of potential litigation. Unreasonableness at any stage not only nullifies the privilege, but can tip the detention over into the tort (and potentially even the crime) of false imprisonment.

And those aren’t the only risks of too-eager exercise of the shopkeeper’s privilege. Back in the 1990s, an $11 million verdict against Circle K established an important principle about shoplifting in New Mexico. If store policy encourages clerks to confront shoplifters, the store is responsible if the clerk gets hurt. For a small-business owner, that’s like betting the company on the outcome of a cage fight.

A recent case showed it’s not such a straightforward matter for police officers to respond to shoplifting calls, either.

By way of background, when the value of the merchandise stolen is less than $500, New Mexico law classifies shoplifting as a misdemeanor. Under the ancient common law we inherited from England, police officers may not arrest a suspect for a misdemeanor offense unless it’s committed in the officer’s presence. That’s called the misdemeanor arrest rule.

There was once a reason for the rule. There was once a reason for exhibiting executed criminals’ bodies in gibbets, too.

Shoplifting is common, but not in police officers’ presence. Realizing that strict application of the misdemeanor arrest rule would prohibit the arrest of most shoplifters, the Legislature crafted an exception. Under the statute, an officer may arrest a suspected shoplifter based on information from a merchant, regardless of the value of the goods.

Sounds clear in theory. But how does it work in practice?

Earnest Paananen found out when he stole a couple flashlights from Sportsmen’s Warehouse in Albuquerque. The store’s loss-prevention folks stopped him at the exit, brought him into an office and called the cops. When the officers arrived, they arrested him.

The question on appeal was whether the arrest was lawful. That might seem an easy question, given the statute. But, in 1994, our state Supreme Court said that arrests without a warrant – that is, without prior authorization from a judge – violated the state constitution unless compelled by “exigent circumstances.”

Curiously, no form of the word “exigent” actually appears in the New Mexico Constitution. It turns out this constitutional requirement isn’t actually required by the Constitution, but only by the Supreme Court’s decision. But, inside the legal world, that distinction doesn’t matter. For lawyers and lower-court judges, the words of the Supreme Court have greater authority than the words of the Constitution itself.

As to what “exigent circumstances” means, one old case said they arise when things get really crazy, as when the suspect is flushing evidence down the toilet or threatening the life of a hostage. Stealing two flashlights hardly counts under that standard. And so the Court of Appeals ruled that Paananen’s arrest, while supported by probable cause and authorized by statute, was nonetheless contrary to the Constitution, by which it meant the Supreme Court’s decision.

The court didn’t explain what the cops should have done with Paananen instead of arresting him. Realistically, though, they had just two alternatives. They could have detained him for the several hours necessary to obtain an arrest warrant from a judge. Of course, detaining him for that length of time would have amounted to an arrest by another name, making the whole exercise self-canceling. Or they could have turned him loose to try his luck at the store next door.

The fact that neither alternative would strike anyone as sensible didn’t matter to the Court of Appeals, whose job was to follow Supreme Court precedent, even when that meant disregarding the Legislature’s enactment.

In September, the Supreme Court reversed the Court of Appeals. While reaffirming that the requirement of exigent circumstances has indeed been grafted into the text of the Constitution, the court redefined the phrase nearly out of existence, explaining that “(a)n on-the-scene arrest supported by probable cause will usually supply the requisite exigency.”

Under this new standard, it is once again generally lawful for police officers to comply with the statute authorizing the arrest of shoplifters without a warrant.

Joel Jacobsen is an author and has recently retired from a 29-year legal career. If there are topics you would like to see covered in future columns, please write him at


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