Concealment in Plain Sight?

As I mentioned in a recent post, I really enjoy working with magistrates, in part because of the excellent questions they ask. Here’s one that came up recently: if a person goes into a clothing store, cuts the tags off a jacket, and starts wearing the jacket around the store, can the person be charged with shoplifting?

The starting point, of course, is the shoplifting statute, G.S. 14-72.1. The statute makes it a crime to “willfully conceal[] the goods or merchandise of any store, not theretofore purchased . . . while still upon the premises” of the store. The crucial question is whether wearing an item of clothing — openly, in plain sight — can constitute concealment.

I don’t think that there’s a North Carolina case on point. But there are cases from other jurisdictions:

  • Walters v. J.C. Penney Co., Inc., 82 P.3d 578 (Okla. 2003) (a sweater worn in “plain view” was not “concealed” within the meaning of a shoplifting statute)
  • Henry v. Shopper’s World, 490 A.2d 320 (N.J. Super. Ct. 1985) (interpreting a statute allowing a merchant to take a person into custody upon probable cause that the person has “willfully concealed unpurchased merchandise” to encompass “items in plain view but worn or carried as though they had been purchased,” such as a coat in that case)
  • State v. Evans, 774 A.2d 539 (N.J.Super. Ct. 2001) (following Henry in a case where the defendant placed a hair bow in her pocket, then in her hair, before walking out of a store)
  • People v. Cortez, 326 N.E.2d 232 (Ill. Ct. App. 1975) (stating that although “[t]here are circumstances under which wearing an object out in the open, for example, a piece of jewelry, would be a clever method of concealment,” such was not the case where the defendant was wearing a heavy jacket, with the tags still on, inside a store in warm weather)

Most of the cited cases conclude that there are at least some circumstances under which openly wearing an item of clothing can constitute concealment, and that result strikes me as correct. However, just trying on an item of clothing obviously doesn’t constitute shoplifting. I would advise a magistrate to charge shoplifting in such a case only if one or more additional incriminating facts were present, such as the removal of tags, the wearing of the clothing for a protracted period of time, the wearing of the clothing away from the area of the store in which that item is displayed, or an attempt to integrate the item into an existing outfit.

If you know of additional cases on point, have experience with a case involving relevant facts, or have something else to add, please post a comment.

4 comments on “Concealment in Plain Sight?

  1. Criminal statutes must be strictly construed, and it would clearly violate the plain meaning of the word “conceal” to include something that is visible.

    I believe the more appropriate charges would be Injury to Personal Property and Larceny. There is strong evidence to prove intent to permanently deprive if the facts are cutting off the tags and putting on the clothes, even if the defendant has not left the store.

  2. Well, first let’s look at the word “concealment.” According to Webster’s (c. 2005) the word “conceal” means to keep from disclosure, sight, or knowledge. Simply put, to hide. One does not have to hide something from sight for it to be considered concealed. It could have the illusion of appearing to be something else OR be deceiving as in this case. Even with that said, the shoplifter should not be detained UNTIL he/she bypasses ALL locations where payment could be made (checkout lanes, customer service, etc.) and steps outside the store where it would make for a good case that will stand in court. At best in this case, as long as the subject is in the store, you simply have destruction of property with the propensity for shoplifting, should the person attampt to leave the store without paying. As a former Loss Prevention Manager for a major department store chain I used to teach the store associates, for the 3 stores under my realm of authority, just that. Doing anything else could lead to a lawsuit. If the person takes the price tag off and wears the article of clothing around the store, then takes it off in another department, the best you have is destruction of property, due to the fact that the clothing is not able to be sold. I mean, would you by clothes that smelled like someone had been wearing them (unless it’s a second hand store or rummage sale, of course). The weather is not a factor here. The person could simply say that he/she felt a chill and put on the coat. And, unless the person has a record of larceny or shoplifting, etc. most courts would probably dismiss a shoplifting charge AND possibly concealment. Unless there is some tiyp of action to leave the store, the best case you’d have is destruction of property (unsaleable goods).

  3. I had this exact issue a couple weeks ago in our district court. The individual was charged with shoplifting by concealment of goods. The goods were a pair of shoes. The individual from her story indicated that she tried the shoes (high heels) on and proceeded to walk around the store to see if they would give her blisters. She left her shoes in the shoe department along with another bag. LP also confirmed all the person did was walk around the store with the shoes on. I think this was the case of an over zealous LP officer and was dismissed.

  4. By cutting the tags off, putting it on andthe moving to other
    areas of the store, might that support attempted larceny (also being a class two misdemeanor)?. . . . Just trying to think outside the box.