At what point does something become theft?

Question

Let's say Bob enters a store and he only needs to pick up a few small items. The store provides shopping carts but he doesn't use one. He grabs the small items he needs and to transport them to the register in the front he puts them in the small pocket of his hoodie. As he's walking to the register, a loss prevention person stops them and accuses Bob of theft. He says "We have you on camera stuff your hoodie with stuff". He explains that he was simply carrying the items in his hoodie to the front register. The loss prevention agent doesn't allow him to go to the register and forces Bob into the back room until the police arrives.

Did Bob commit a theft?

Answer 1

The crime of theft generally requires two elements - taking control of property, and the intent to deprive the rightful owner of it. If Bob had no intent to leave without paying, he may lack the intent often required for theft. In the scenario described, it's possible Bob has not committed theft, but his actions may indeed constitute theft depending on the jurisdiction.

As pointed out in the comments, some jurisdictions codify the concealment of merchandise as prima facie presumption of an intention to steal, or may even codify the act of concealment itself as a crime. There are some shoplifting laws statues that specifically call out "willful concealment", which does not require leaving the premises of a store to have committed a crime - merely concealing the item may be a crime in itself, although perhaps not the crime of "theft".

Whether a court would find Bob guilty of theft will depend on a number of factors, depending if there is leeway in inferring intent, and how that intent is inferred. If Bob's actions are found to be sufficiently inconsistent with the behavior of someone who truly intended to pay, the court may find him guilty. If a reasonable person would infer a lack of intent to pay from Bob's actions, he may be found guilty.

Answer 2

It looks very much like theft. But the “theft prevention person” could have waited until you came to the register, where you would either have paid or removed all doubt that it is theft.

So if you were indeed “walking to a register”, or even “queuing up at a register”, your lawyer could argue in court that there is reasonable doubt of your guilt, which would have gone if the theft prevention had just waited a moment.

A similar defense could work if you had items with clear anti-theft measures. People would be unlikely to hide things in their hoodie that give an alarm if you leave the store.

Another possible defence would be if they have CCTV footage, or your lawyer just asks the theft prevention person, whether you acted absolutely openly without trying to hide your actions - that is a little bit more doubt that you are a shoplifter, because a shoplifter would try not to be seen.

These defenses may or may not work. Either way, hiding things in your hoodie is a very bad idea. To your original question: It is not theft, but you may very well not be believed and be convicted of “committing theft beyond reasonable doubt”.

(In other countries it is theft if the item leaves the store without payment. That leaves much less room for “reasonable doubt”. There is also very little room for "attempted theft". If I try to kill someone but fail, it's not murder but attempted murder. You would think the situation described would not be theft but attempted theft since the attempt failed, but that's not what the law says).

Answer 3

If you didn't intend to steal it then you didn't commit crime, but that won't keep you out of jail.

Other states will likely be slightly different, but the US Georgia code 16-8-14 Theft by shoplifting defines the elements as:

(a) A person commits the offense of theft by shoplifting when such person alone or in concert with another person, with the intent of appropriating merchandise to his or her own use without paying for the same or to deprive the owner of possession thereof or of the value thereof, in whole or in part, does any of the following: (1) Conceals or takes possession of the goods or merchandise of any store or retail establishment; (2) Alters the price tag or other price marking on goods or merchandise of any store or retail establishment; (3) Transfers the goods or merchandise of any store or retail establishment from one container to another; (4) Interchanges the label or price tag from one item of merchandise with a label or price tag for another item of merchandise; or (5) Wrongfully causes the amount paid to be less than the merchant’s stated price for the merchandise.

Intent is part of the element, but the defendant's claim of "I was just carrying it to checkout" isn't going to be enough to beat probable cause for arrest. Note the concealment element specifically. You might beat it in court, but you would be at high risk of incarceration.

Answer 4

Common sense - where this is common - would say that, no, this clearly isn't theft, and the shop staff should be able to make that distinction.

Presumably, if you want to steal an item in a shop, you would try to conceal it and avoid being seen or caught on a camera; if you don't intend to steal, you won't - instead you would let everybody see what you were doing. Next, if you want to steal, you will attempt to leave the shop without paying for the item - that is when you demonstrate that you are a thief.

I have often enough gone to a supermarket with a shopping bag and simply putthe things I want to buy in it. I have only once been questioned about it - another shopper had talked to the guard, who then approached me to say that I obviously weren't stealing, but could I not do it in the future, so there weren't any misunderstanding.

Finally, it is a fundamental principle in the West at least, that you are innocent until proven guilty, and you are not even remotely proven guilty until you try to leave the shop without paying; and even then you might claim that you simply forgot for whatever reason - maybe you have beginning dementia, who knows.