Articles Posted in Theft/Retail Theft

Clients that are charged with Retail Theft frequently call me a few weeks after they are arrested and tell me that they received a letter from the store’s lawyers demanding money.  Sometimes, they receive this letter even if they haven’t been criminally charged for the Shoplifting. They usually have two questions when they receive that letter.  The first question is whether this means that if they pay the amount they are asking for will that mean that their case is dismissed?  The second question is whether they have to pay the amount they are demanding.  I will explain to you what I tell them and what that letter means.

When you are arrested and charged with a Retail Theft, or Shoplifting in Illinois, this means that you have violated the criminal law of the State of Illinois. You will be assigned a court date and you will have to go to court to answer to the criminal charges. Under Illinois Law, that same Retail Theft gives the store, known as the retail establishment, the right to sue you in civil court for civil, or money damages.  The very last part of the statute which deals with the crime of Retail Theft discusses the civil penalties available to the retail establishment. The amount of money the store’s lawyers can go after you for it is the actual retail value of that you stole, or tried to steal, plus anywhere between $100 and $1,000, plus their attorney fees and any court costs associated with the attempt to collect this civil penalty.  You will first find out that the store is trying to do this when you receive a letter from their attorneys informing you that they are seeking the civil penalty against you. That letter will inform you that you need to contact them to discuss payment. You need to understand that this proceeding is completely separate and distinct from the criminal case that you are facing. Paying the amount they are seeking will not halt the legal proceedings in the criminal case. As a matter of fact, the prosecutor handling your criminal case and the civil attorney representing the store for money damages have nothing to do with each other.  They are not communicating with each other nor are they working together.  Often, payment of the civil penalty is something that an experienced Illinois Retail Theft attorney can use when negotiating with the prosecutor to work out a favorable resolution to your criminal Retail Theft case.  Showing a prosecutor proof that you paid the civil penalty can only help convince a prosecutor you have accepted responsibility and are trying to make good for the bad that you did.  I have used it many times to help get a good deal for a client charged with Retail Theft. At the very least, it has never harmed the client to come to court with proof that they paid the civil penalty.  It’s important to know that the statute provides that payment of the civil penalty cannot be used against you in the criminal case to prove that you admitted responsibility or confessed to the crime.  From my experience, if you are unable to pay the full amount that the store is demanding, if you contact their attorneys representing the retail establishment, they will work out reasonable payment plans.

What happens if you do not make the payment? First, you cannot go to jail for not making the civil penalty payment. Technically, the store has a right to file a lawsuit against you. But this rarely happens. That’s because the amount owed isn’t worth the expense to the store and their attorneys of filing a lawsuit against you. What frequently happens if you don’t make the payment is that they will turn over the claim to a collection agency. The collection agency will come after you just like any other collection agency would for any other type of debt owed. They may put this on your credit report and make annoying phone calls to your home and work to try to get you to pay.

This is one of the more common questions that I get asked when people call me wanting advice about how to deal with a situation like this.  Many people think that as long as it’s not the police asking questions, they have nothing to worry about.  Nothing can be further from the truth.  If your employer is suspecting that you stole something and they want you to come in to the office to discuss the matter, you need to be aware of how dangerous this situation can be.  This situation can be more dangerous than talking to the police.  Let me explain why.

Everybody watches TV shows involving police criminal investigations.  Everyone is aware of terms like “probable cause”, “search warrant”, “arrest warrant”, and “Miranda Rights”.  But most people do not truly appreciate exactly what these terms mean in the real world.  What happens on TV does not always reflect how the real world operates. What we commonly refer to as our constitutional rights only apply to when the government is acting against us.  In other words, if the police want to ask you questions and you are not free to leave, the police must read you your Miranda warnings.  The police must let you know that you have the right to remain silent and that anything you say can and will be used against you in court.  They also must inform you that you have a right to an attorney and if you can’t afford one they will provide one for you for free.  In order for questioning to continue, you have to waive your Miranda rights.  If the police want to search your vehicle or your desk at work, they need a search warrant or your permission.  But these rights do not apply to your employer or to your employer’s security agents, unless you work for the state, local or federal government.  Your employer is not the government.  The security agents work for your employer and not for the government. So, when your employer wants to ask you questions about a possible theft, they don’t have to read you your Miranda Rights.  When your employer wants to search your desk at work they don’t need a search warrant nor do they need your permission.

Many people falsely believe that since their employer and their security agents did not read them their rights then anything they say to the employer and their security agents cannot be used against them in court. Again, this would be a mistake.  Many Theft cases that I have handled were developed using information gathered by store security and loss prevention agents.  With many of those cases it was obvious that the police allowed the employer’s security agents to gather all of the evidence before the police got involved.  That’s because the police knew that it will be much easier for the prosecutor to use the evidence that was gathered by private security because private security is not hindered by the Constitution.  If you talk to your employer and their security agents and make a statement the prosecutor does not have to show that you waived your Miranda Rights when you made that statement.  Miranda does not apply to your employer and their security agents.  In many ways, this is very unfair.  If your employer asks you to come into the office and talk about a Theft investigation involving you, you know that if you do not show up to that meeting, you will probably lose your job.  And, as you try to keep your job, you may try to talk yourself out of it without realizing that you’re only digging a deeper hole for yourself.

Retail Theft, commonly known as Shoplifting, is a very serious crime in Illinois. In addition to the criminal penalties associated with a Retail Theft case, a prospective employer that finds a Retail Theft case in a background search could use it against you to deny you employment. Some employers conduct background searches. If your current employer finds out about a Retail Theft arrest, your employer may fire you. If you try to lease an apartment and a landlord conducts a background search, that landlord may turn down your lease application.

There are several ways that you could be guilty of a Retail Theft.  You could be guilty of a Retail Theft by doing more than just walking out of the store with merchandise that you did not pay for.  I want to talk a little bit about different ways that you can be guilty of Retail Theft.

False Returns:  This happens when you present a fake receipt or a gift card in which you claim to own merchandise that you are returning to the store in return for cash, credit, or a gift card.

This is a common question that I am frequently asked by clients facing Retail Theft or Shoplifting criminal charges.  The short answer is no, but let me explain further.

If you are under criminal investigation for anything, whether you are being investigated for a Retail Theft by store security or by the police, you are under no legal obligation to cooperate with them.  This includes answering their questions.

Let’s talk about the police.  If you are being questioned by the police, the law provides you with some protections.  If you are in custody and the police start asking you questions the law provides that they must advise you of your Miranda Rights.  You are in custody when you are not free to leave.  If you are in custody and the police want to question you, they must inform you that you have the right to remain silent and that anything you say can and will be used against you in court.  They must also inform you that you have a right to a lawyer and that if you cannot afford a lawyer they will provide one for you for free.  If you waive your right to remain silent, then the police can use anything you say to them against you in Court.