Unless specifically set forth as grounds for Grand Theft, the Petty Theft laws apply, as follows:
- Petty Theft is often referred to as shoplifting; as a general rule it takes place when one obtains property by theft, that involves a value less than nine hundred fifty dollars ($950);
- A first conviction generally constitutes and is punished as a misdemeanor. Penal Code Section 490 provides for a fine for each violation of up to one thousand dollars ($1,000), or up to six (6) months in the county jail, or both;
- The prosecutor (District Attorney or City Attorney) has the discretion to charge the defendant as an infraction if the person has no prior theft or theft-related conviction (Section 490.1);
- In addition to other civil remedies, the merchant can make a civil demand and collect up to five hundred dollars ($500), plus costs. In addition, the store may collect the retail value of the merchandise;
- Pursuant to 490.5 (f) (1) of the Penal Code, a merchant may detain a person for a reasonable time to conduct an investigation if the merchant has probable cause to believe the person of interest unlawfully attempted to take or has unlawfully taken merchandise from the premises of the store.
- A reasonable amount of force not likely to cause great bodily harm may be used if it is necessary and, therefore it becomes, justifiable, to protect oneself and/or to prevent the person who has been detained from fleeing &/or the loss of the merchant’s property;
- Following the above principles, the merchant may request the person who has been detained to voluntarily surrender the item in question, and if refused, is permitted to conduct a reasonable search to recover the same. This involves and is limited to handbags, packages, shopping bags and/or other property possessed by the detained person; this search does not, however, encompass any clothing worn. Crimes Against Property:
Although a merchant may demand attorney’s fees or threaten to cause harm to a person’s credit, they do not have the power to do so [attorney’s fees are prohibited in such a case, and because there has been no adjudication of money owed, they cannot report someone to a credit bureau]. Also, it may be deemed a violation of State extortion and Federal collection laws for a merchant to threaten criminal &/or civil action
The facts and circumstances differ in one case from another and, therefore, the information in this Blog is not intended as legal advice.
In the current case of DAVID LEON RILEY, Petitioner v. STATE OF CALIFORNIA Respondent (13-132), the U.S. Supreme Court on a Petition for a Writ of Certiorari will review the unpublished Decision of the Fourth District California Court of Appeal and, hopefully, clarify whether the police may seize a cell phone from a person under arrest and search its contents.
In the underlying case, Riley was stopped by the police on August 22, 2009 for an expired vehicle registration tag. Soon thereafter, the officer determined Riley was driving on a suspended license (DSL) and impounded the vehicle. While documenting the contents of the vehicle, the officers discovered under the hood of the car two concealed and loaded weapons. Then, Riley was placed under arrest and the officers seized his “smart phone.” At this point, the officer searched the contents and discovered numerous contacts preceded by the initials “CK” (members of a criminal gang commonly known as “Bloods” or “Crip Killers).” Another officer viewed the photos on the cell phone at the police station and noticed one in which Riley was standing next to a vehicle that he believed was involved in a prior gang related shooting.
Riley was accused of attempted murder among other charges, and under California law the DA also included a gang enhancement that increased the length of his sentence.
His lawyer sought to exclude the evidence on the basis of a warrantless search without exigent circumstances (that otherwise could justify the search) and, therefore, violated the Fourth Amendment of the U.S. Constitution. Riley was convicted and sentenced to 15 years to life whereas it would have been a maximum of 7 years without the gang enhancement.
The Supreme Court is likely to decide whether cell phones should receive special treatment as Courts have been divided and have reached inconsistent results, and because they store “virtually limitless” personal and private information, including access to the internet and even digital copies of private medical records. In the event it rules in favor of Riley, he could be retried with the evidence and contents of the cellphone being excluded.
Commentary by San Diego Criminal Defense Lawyer Sam Spital:
“The North County News on December 25, 2012 published this article regarding a three Judge panel of the U.S. Circuit Court of Appeals, for the 9th Circuit that held a police officer cannot gain entrance to a person’s property or home in pursuit of a possible misdemeanor suspect without first obtaining permission or obtaining a search warrant. To do otherwise, the panel of the Court ruled is a violation of the Fourth Amendment of the U.S. Constitution that prohibits unlawful searches and seizures. The historical exceptions in the law allow the police to enter private property when in ‘hot pursuit’ of a fleeing suspect believed to have just committed a serious felony, the possible destruction of evidence and/or when the police or the public are in imminent danger.
The underlying facts are that the La Mesa Police were called because of a fight on a neighborhood street in this community that is adjacent to the City of San Diego. However, when the police arrived, there was no fight in progress and three individuals were walking away in the opposite direction of the police. An officer yelled ‘Police’ but one of the individuals did not stop and walked inside a gated fence surrounding a nearby home. The officer reportedly kicked in the gate and it struck a woman who was standing on the inside. The force knocked her to the ground and she sustained a concussion, was unconscious and then taken by ambulance to a local hospital for surgery. She sued the officer and the City of La Mesa for $500,000, but the case was dismissed by the U.S. District Court. When the particular suspect was caught he did not possess any weapons and there reportedly was not sufficient evidence a crime had taken place or was ongoing. Accordingly, the panel of the Court held there was no imminent danger to the officer or anyone else and, therefore, ordered the case be reinstated. The next step is for the full 9th Circuit Court to review the matter and if that produces an unsatisfactory opinion the case can be appealed to the U.S. Supreme Court; otherwise, it will be sent back for a trial on the merits.”
In a nine to zero opinion entitled UNITED STATES v. JONES, No. 10-1259, the U.S. Supreme Court, on January 23, 2012, https://www.supremecourt.gov/opinions/11pdf/10-1259.pdf affirmed the U.S. Court of Appeals decision that reversed the U.S. District Court criminal conviction of drug trafficking and conspiracy charges. The Supreme Court confirmed the police conducted a search or seizure within the meaning of the Fourth Amendment when it attached and monitored a GPS device to a vehicle. Although there was a warrant issued to the Government, it required the tracking device to be installed within 10 days, but it was actually installed on the 11th day. Therefore, it was deemed a warrantless search in violation of the reasonable expectation of privacy, and the District Court should have suppressed the evidence. As a result of the Supreme Court granting certiorari (after the DC Circuit Court previously denied a petition for a rehearing by the Government), the U.S. District Court sentence to life imprisonment that was reversed by the U.S. Court of Appeals was affirmed. It is noteworthy that the Supreme Court did not decide whether installing a GPS device requires a warrant, and if not, whether monitoring a GPS device over a very brief period of time, such as a couple days, requires a warrant.