New York Shoplifting Arrests (NY PL 165.40 / 155.25) & State Action Hearings: Is it Legal for Store Security to Search You or Take a Statement without Advising You of Your Rights

You were arrested or given a New York Desk Appearance Ticket in Manhattan, Brooklyn, Queens or anywhere else in the New York City region for shoplifting, Petit Larceny or Criminal Possession of Stolen Property (New York Penal Law sections 155.25 and 165.40). You are understandably concerned and upset. You contacted an experienced New York criminal defense lawyer because you are rightfully concerned about how this arrest will impact your future and you want to keep your record clean.

As you and your New York criminal defense attorney discuss the facts of your case you begin to get agitated about how you were treated. You, like many before, are upset that store security stopped, searched, questioned and even asked you to sign documents without answering your questions fully or advising you of your rights. Compounding matters, you felt threatened and compelled to sign these papers they put before you. Store security may have even rummaged through your personal belongings and bags. Is this OK? Were the security officers permitted to act in this manner? What about your rights?

Generally, a search or statement taken by a security guard is not suppressible. Unlike actions taken by the police, actions, albeit potentially rude or scary, taken by private security personnel of a store are not viewed by the law in the same manner. If the police stop, search and take a statement from you, the law requires that there be varying degrees of criminality and ultimately probable cause if you are arrested. Moreover, you must be advised of your rights before that statement is made if you are in custody and there is an interrogation. Otherwise, that evidence against you may not be used. You are not afforded these protections when a private store security guard does the same.

Despite the general rule listed above, one thing you may wish to discuss with your shoplifting criminal defense lawyer is whether or not the private security guard was acting as an arm of the state or law enforcement. If so, a State Action Hearing may be sought. While it is atypical for courts to find state action in a reactionary (as opposed to a “sting”) shoplifting case, the Court of a Appeals, New York’s highest court, found in People v. Ray, 65 N.Y.2d 282 (1985):

“For state action to exist, it must be demonstrated that official participation in the investigation at issue preceded, or occurred contemporaneously with, the signing or utterance of an inculpatory statement. For example, when police officers have actively participated in defendant’s apprehension, exerted official power to restrain defendant, escorted defendant to the site of interrogation, and awaited the outcome of the privately conducted interrogation in close proximity to the place of questioning, a custodial atmosphere of the nature Miranda was designed to alleviate has been created. ( See, People v. Jones, 47 N.Y.2d 528, supra, 419 N.Y.S.2d 447, 393 N.E.2d 443.) Under circumstances where police participation precedes or occurs contemporaneously with the private elicitation of inculpatory evidence, so as to create a coercive, custodial environment with the reasonable potential of infringing defendant’s privilege against compulsory incrimination, the Miranda safeguards must be observed.”

The paragraph above should make it clear why there is no state action in most shoplifting cases. Unlike these factors, most police involvement occurs after you have been apprehended, questioned or searched by the store security officer. However, if the facts of your particular case are different, a State Action Hearing may be warranted. Even if it is not, it is critically important to discuss other potential hearings or issues to challenge your stop, arrest, search and statements as well as the evidence against you. Each case is unique and requires a equally unique analysis. While one line of defense may not work or be applicable in your case, a new door to a different one may be opened.

For extensive information on New York theft crimes, larceny and shoplifting, please follow the highlighted link to the Theft Offense section of Crotty Saland PC’s New York Criminal Lawyer Blog. For additional information regarding Desk Appearance Tickets in Brooklyn, Manhattan and the New York City Area, please follow the respective link as well.

Founded by New York Criminal defense attorneys and former Manhattan prosecutors, Crotty Saland PC represents clients throughout the New York City region.

Updated: