Articles Posted in Shoplifting & Theft

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Dear Mr. Guidry,

The police won’t really do that on a theft case, will they?  After all, its only theft charge!

Dear Potential Customer,

Yes, the police may end up doing that.  Yes, that would be a waste of tax payer money, but that doesn’t stop them (ever).  And, law enforcement sometimes surprises us with their good old fashioned police work.  Bottom line is: don’t be surprised when the police use technology you only see on TV Shows.  

So, for all you folks wondering just how hard the police are going to work at a petit theft case, or a shoplifting case, or a grand theft case — I have some (potentially) bad news for you.  The advent of “new” technologies enables law enforcement to arrest more shoplifters at Kohl’s, Macys, Wal-Mart and Target than previously thought possible.   What is this crazy “new tech” and why did I put it in air quotes?   Unfortunately, we’re getting more shoplifting arrests due to cheap data storage.  Hard drives, basically.  I know, you’re disappointed because you thought we’d be discussing the laser-guided ear lobe analysis used on the latest iteration of Law & Order.  Sorry.

Store surveillance video isn’t new, but what’s new is the fact that these stores can (and do) rewind months and months of footage to see if a recently caught shoplifter had stolen from the store previously.   Back in the day of VCR’s, stores would write over their tapes within a day or two.   Even five years ago, it was pretty expensive to keep a few days of footage, when you’re saving data from  30+ cameras recording 24/7.   Today, hard drives are cheaper.  They’re bigger.  So, how does this impact a shoplifting case?

Well, it is “possible” that folks who get arrested for shoplifting may have stolen at that store before, and everything that’s happened in the store for the last four or five months in on a hard drive somewhere.  Loss prevention will dig through old video surveillance to find out if the recent arrestee had prior theft shenanigans.  If the old footage reveals the person stealing on previous visits (and they have, that’s why we’re talking about it), there’s going to be a new arrest for an old charge.  Sure, we have ways of beating these petit theft allegations derived from old video footage, but who would have thought that cheap hard drives would lead to more shoplifting cases? Continue Reading

surveillance-cam-225x300Not all cops are created equal.  I have a friend, who’s a cop (hard to believe, I know), and he rarely arrests folks on drug charges.  His form of justice involves escorting the citizen to the nearest toilet and flushing the drugs into our water system. Mercy is out there, believe it or not.  But, if you’re reading this, my guess is that you weren’t so lucky.

Now, not everyone involved in law enforcement has as much mercy as my cop friend.  Loss prevention officers, for example, seem to have the least mercy in their souls of anyone in law enforcement (yes, I’m assuming things like “mercy” and “souls” actually exist, a philosophical debate for another day–but such a debate will be over the strenuous objection of my web people, who complain that I get off the legal track too easily, and thus make their optimization efforts more difficult. Oh well).

Why are loss prevention officers so eager to stick it to shoplifters? . First, Dr. Phil would probably say that loss prevention folks somehow missed their calling as true blue police officers.  In other words, they have a chip on their shoulders.  Now, a chip on your shoulder can be a good thing, look at that quarterback that was drafted #199 in the sixth round back in 2000–he’s doing ok (I’m not a Patriots fan, but you have to love a sixth round pick beating the crap out of the 198 players picked above him.  Anybody who’s had that awkward feeling of being picked next to last in gym class knows what I’m talking about).   For whatever reason, shoplifting patrol people decided that the 12 weeks of police academy was just too academically rigorous, and this tends to make them a bit more harsh than the legitimate police officers they call once they’ve caught a shoplifter.  Case in point: I had a client who was detained for shoplifting, and she really really needed to use the restroom.  She begged loss prevention for a bathroom break, but this only made loss prevention delay further–to the point where she urinated all over herself.  Loss prevention laughed about it, and invited comrades into the back room for an extended gawking session.  Talk about wanting to die!  As a defense attorney, you need only see this sort of thing a few times to start questioning what went wrong. Continue Reading

There are shopliftingplenty of legends surrounding wealthy people.  For example, people assume you’re happy if you have lots of money, and several studies support this.  Also, people assume you’re smart if you have lots of money.  There are plenty of studies to show this is not the case.  If intelligence did lead to wealth, I’m sure India would have less poverty (India contains Earth’s lion share of geniuses, FYI), and Christopher Langan would have Trump style buildings with his name on them (Christopher is the smartest human being on Earth–if you subscribe to IQ testing–but his employment isn’t CEO of the latest craze in Silicon Valley, Christopher keeps it low key with such titles as bouncer and laborer.  “Not that there’s anything wrong with that”, as Seinfeld taught me, but these aren’t the jobs you’d expect of someone with an IQ higher than Hawking or Einstein or Ben Stein).

So, I really like Apple products, and I heard a legend about Steve Jobs that seems plausible.  He didn’t like carrying around music on cassette tapes, or CD’s.  Jobs wanted a more portable music device that could hold more songs than a cassette or CD, but the engineers at Apple kept putting him off because they didn’t have the storage technology to make it happen.  Yes, the engineers are always at odds with the artists.  Later in the legend, Toshiba came out with a tiny hard drive with a decent storage capacity.  With the birth of that tiny hard drive, Steve Jobs’ dream of an iPod became a reality.  The iPod music revolution began with hard drive technology. Then the iPhone, and so forth, and so on.

Hard drive technology is now affecting shoplifting cases.   Here’s how.  A shoplifter gets caught stealing (we call this petit theft).  Back in the day, security cameras were considered new technology, but they were only being viewed live, or the footage was being recorded on a VCR that taped over itself every couple of hours.  The cameras enabled loss prevention officers to view shoppers as possible suspects.  For example, nothing screams “I’m stealing” like someone putting clothes into a bag without ever looking at the size or price.  Once loss prevention spots such odd behavior, they can close in on the suspect.  Now, with the advent of hard drive technology, some stores are able to digitally record many months of video, and when they catch someone stealing, loss prevention simply burns two copies of the footage–one for the police, and one for the local news channel (does the public ever tire of seeing someone caught in the act?).  After that, they start reviewing past footage.

When I was a kid, my mom had a list of neighborhood kids she didn’t want me hanging around.  For the most part, her intuitions were correct, and my childcontracthood is now void of any shenanigans involving “the wrong crowd”.  Sad really, but the good news is, I could find a way to be bad within the good crowd (a story for another day).  Anyway, I’ve represented zillions of clients whose arrest involved something “wrong”—the wrong crowd, the wrong place at the wrong time, and so forth and so on.  Often, if someone is going to blame a criminal charge on the “wrong” anything, it means we’ve probably got ourselves a repeat customer.  I don’t want to Dr. Phil this point too much, but folks who blame themselves rarely come back to see me on a second case.  Those who blame their wife, husband, or pet hamster–I’ve got a client for life.  Job security.

Our case for today begins the same as any “American Greed” episode—a very wealthy, elderly, woman is befriended by a married couple.  The married couple “assists” the old lady with the legal affairs of her estate while she was of limited mentalcapacity.  Somehow, the married couple ends up as beneficiaries in the will.  This is the case of Javellana v. State, 168 So. 3d 283 (Fla. 4th DCA 2015).  Mr. & Mrs. Javellana were convicted of the financial exploitation of an elderly person by manipulating a will to become residual beneficiaries of a vast financial estate.  Mr. Javellana went to trial and lost, but appealed the case on the grounds that “under a principals theory” the judge should have dismissed the charges as “there was no evidence he participated in the exploitation”.  Id. at 284.   Before we get into the evidence of exploitation, let’s briefly explore what it means to be convicted as a “principal” to a crime.

There are plenty of shady words in the world of criminal defense, and “principal” ranks right up there with “loitering and prowling”, the “odor of cannabis”, and an “unrecorded confession”.   Basically, being charged as a “principal” means the state doesn’t have much evidence against you.  It means that there’s a good chance the charges are bogus.  When you see the word “principal”, your BS detector should be on high alert (you get the point).  Continue Reading

Violations of probation (VOP’s) come in all shapes and sizes.  Some are more difficult to prove than others.  A dirty urine violation, for example, is deceptively complex.  Even a curfew violation may not be as simple as you might think.  But today we’re going to review what happens when a citizen is on probation and violates by getting arrested on a new charge.  Nothing gets a prosecutor more giddy than a VOP case based upon a new arrest.  But, don’t be distracted by a prosecutor’s confidence, as their zeal often blinds them to the weaknesses in their case.  I’m all for a little confidence, it makes my job easier.no masks

The recent case of Vidale v. State sheds some light on just how difficult it can be to prove up a new law violation at a VOP hearing.  166 So. 3d 935 (Fla. 4th DCA 2015).  Vidale was serving a two year probationary term for dealing in stolen property and throwing a deadly missile.  Like all other probationers, he had two prime directives while on probation.  First, don’t get arrested.  Second, don’t hang out with criminals.  Easy enough, right?  These conditions pretty much parrot every mom’s advice on Earth.  Unfortunately, Vidale found himself in jail on a violation of probation due to a new arrest for burglary of a dwelling and possession of cannabis.  Here’s the testimony at the violation of probation hearing. Continue Reading

I’m sure you remember the financial crisis in 2008 involving Wall Street and fraudulent mortgage backed securities.  I’m sure you’re sick of hearing about it too, but hang inloan there, this all ties in, I promise.   We’re going to compare the treatment a Florida citizen receives for her mortgage fraud, versus the punishment received on Wall Street for a similar mortgage fraud.  Can you guess where this is going?  Let’s start with Wall Street.

Recently, a federal judge summarized the 2008 crisis as follows, “Did defendants accurately describe the home mortgages in the offering documents for the securities they sold that were backed by those mortgages?  Following trial, the answer to that question is clear.  The offering documents did not correctly describe the mortgage loans.  The magnitude of falsity, conservatively measured, is enormous.”  [Judge Denise L. Cote, Federal Housing Finance Agency v. Nomura Holding America, 2015 U.S. Dist. LEXIS 10466 ( S.D.N.Y. 2015, Case No. 11cv6201]

Ok, so Wall Street didn’t “accurately describe”  some home mortgages, and we all know how that story ends.  What about the little guy, or in our case, a gal named Jacqueline Izquierdo.  She was convicted of mortgage fraud and grand theft.  The prosecutors claimed that she provided false information on loan documents used by the mortgage company to determine her eligibility for the mortgage, and convicted of grand theft for taking $216,000 in loan money that she, supposedly, was not entitled to.  Izquierdo v. State (Fla. 3rd DCA October 28, 2015, Case No. 3D13-2751).

Just for a little perspective here, remember the billions of dollars in mortgage fraud from 2008?  No one was arrested.  No one went to prison.  Ms. Izquierdo received a sentence of 14 months prison, followed by two years of home confinement (community control, as we call it here in Florida), and then 8 years of supervised probation.  Here’s what she did. Continue Reading

Science never seems to prove as much as prosecutors claim.  Case in point: fingerprints.  Yes, prosecutors make some pretty ridiculous plea offers when they have incriminating fingerprints.  They get that gleam in their eye, like “Guidry, you can’t get your client out of this one–I have fingerprints!!”   Oh boy, I’ve never seen such a solid case.  Wow, my client must really be guilty this time, right?  Wrong.

What does it mean to say “the defendant’s fingerprints match those found at the crime scene?” Let me tell you what it’s not.  When law enforcement fingerprintstestifies that a crime scene fingerprint “matches” the defendant’s fingerprint, they’re not saying that these two fingerprints are identical.  Sure, it sounds that way, but even with two prints “matching”, the crime scene fingerprint could belong to someone else.  Why, you ask?  Because fingerprint analysis is not an exact science, it’s just a probability claim.   Sure, all of science can be reduced to probabilities, but that’s a philosophical discussion for another day.   Continue Reading

“A poor girl wants to marry, and a rich girl wants to flirt P1020591

A rich man goes to college, and a poor man goes to work” – Charlie Daniels Band

Let’s face it, the deck is stacked against the poor.  If you’re poor and black, it’s even worse.  Yes, what I’m about to say is 10 years past cliche, so it’s almost coming around again, and that makes it ok, maybe even cutting edge (ever hang out with teenagers who think the latest new band is cutting edge, and then deflate them with some NIN or Violent Femmes or anything from the 80’s or 90’s that today’s bands are ripping off–yes, it’s all been done before….except for the stuff I like, that’s all original and fresh).

Here’s an actual quote from a recent police report asking a judge to issue a home search warrant in a poor neighborhood:

Officer to Judge: “Your Affiant received a tip from a confidential informant advising drugs were being sold out of the target residence.”  Ok, that’s his job, so far, we taxpayers are getting our money’s worth.

Officer to Judge: “During the investigation while conducting surveillance of the target residence, Your Affiant on multiple occasions, observed several black males hanging out in the front yard sitting in a chair traveling back and forth inside the residence.  On at least three occasions, several individuals could be seen loitering or congregating outside the target residence.  Based on my training and experience, I know this to be common among drug deals and sales.” Continue Reading

basketball court.JPGI had an argument recently with a prosecutor (shocking, I know), and much of her reasoning centered around her repetition of the cliche “where there’s smoke, there’s fire”. The problem with such clichés is that the other side is basically acknowledging that they cannot respond to your position with any sort of intellectual vigor. Cliché’s avoid substantive arguments–and I’m in the business of making such arguments.

Our case for today is A.B. v. State, 141 So. 3d 647 (Fla. 4th DCA 2014). Here’s the scene: kids playing basketball at a city park, having a good time. Some kids are watching the game, some are on the court playing. The kids playing have left their cell phones and wallets off to the side of the court. At some point, the players noticed a couple of kids running from the area where they left their wallets and cell phones. Sure, enough, their stuff was gone. A.B. was one of the kids running away.

I know what you’re thinking, why run away if you’ve done nothing wrong, right? Well, remember, its kids we’re dealing with, that’s why we can’t use the defendant’s actual name, we have to use initials. Somehow, the cops caught up with A.B. about two weeks after the incident, and he told the officer “I can’t believe I am going down for this alone”. Id. at 648. Now, even if you believe what the officer says A.B. said (I often don’t, unless it’s recorded–every officer carries a recorder/cell phone), this statement isn’t quite a confession. It may be admission that he knows who did it, but it’s not quite a confession. The juvenile further explained that his friend issued the following command: “When I run, you run”. Assuming A.B’s friend is not some sort of pyrotechnical engineer about to launch a 4th of July Jubilee, this sort of statement is the universe’s way of telling you “some shit is about to go down”. Again, we’re dealing with kids here, and this statement probably resulted in a response like “uh, ok, huh” (think Beavis & Butthead).
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shirts.jpgSometimes, the heat of the moment transforms something stupid into something tragic. I’ve seen road rage transform into a prison term, and I’ve seen shoplifting upgraded to robbery. Now, it should come as no surprise that law enforcement’s creative juices are often peaking when they sit down at their laptop to type up the list of charges and “facts” (imagine a Nat Geo slow-mo shot of a butterfly emerging from his cocoon, except this isn’t such a beautiful thing).

It would be unfair to single out shoplifting and robbery charges for police exaggeration. Just sit outside a nightclub in downtown Orlando and you’ll see plenty of misdemeanor disorderly intoxication charges blossom into felony battery on a LEO charges. Or, how about the classic misdemeanor urinating in public? You can’t have a decent club scene like Orlando’s, without a steady stream of urinating charges just after the bars shut down. So, it should come as no surprise to you that law enforcement manage to find 16 year old kids who happened to see you relieve yourself. Congratulations, this urinating in public charge is now a lewd or lascivious exhibition; a second degree felony carrying a lifetime of sex offender registrations (‘Shake it once, that’s fine. Shake it twice, that’s okay. Shake it three times, you’re playing with yourself…’). Ok, back to shoplifting and robbery.

The case for today is Rockmore v. State. 140 So. 3d 979 (Fla. 2014) Rockmore was found guilty of robbery from a Walmart after a shoplifting incident. To understand why this case is important to our discussion of misdemeanors upgrading to felonies, keep in mind that a robbery is simply a theft that includes force either during, or after, the taking. To get a robbery, you need a continuous thieving event. To throw a wrench in this, what happens when the thief abandons the taking and uses force after abandoning the theft? Let’s find out.
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