Expert: Philip Sweeting - 9/13/2007

Question
My husband was arrested in a kroger store for shopplifting. He was exiting the store to get his kroger plus card when detained by two officers for shopplifting of a Norelco trimmer. They searched him and found no item but still arrested him.
Both officers stories where diff. One said he placed item in his pocket, and the other said that he stuffed it in his pants.
BUT_ no item was found. They said they later found the item between two different isles. Which they claim he opened with a key. The box is very thick plastic and hard to open even with a knife. Once we saw the package, it looks to have been cut with a razor, because edges are very clean. Can't they be made to pull prints?
They found nothing on my husband.
So, we went to court yesterday and they have added 2 charges of Damage to property and tresspassing. Which I feel are cop outs because they no that its bull. They have survalence cameras but say that its not on tape. can they just add charges and shouldn't they have to produce a tape and how can both officers have different stories? PLease give us some advise!!!!

Answer
The first thing I would do is speak to a lawyer.

Depending on the laws in your state, typically the police wait until the shoplifter leaves the store before they stop them with what they believe is stolen property in their possession. That way they can show that they left the store with the property which helps to prove the intent to steal the item. Legally they can stop him inside the store if he conceals an item but they have a stronger case if they wait until he exits the store.

In your husbands case nothing was found on him. I suspect the police will claim that he intended to steal the item because they saw him conceal it but then discarded it in the store because he believed he was seen trying to take the item and then left the store. If that was the case he could still be arrested for shoplifting...especially in light of the fact the box was found cut open.

Your question about the prints is a good one. If the plastic that you described is what I think it is...the surface would be very good for getting fingerprints. If the officers didn't dust it for prints it was probably just an oversight on their part and or they were just lazy because all it could do is help their case.

If they found your husbands prints on it...it would certainly prove that he had at least handled the item. If they didn't find his prints...they could claim he wiped his prints off the plastic prior to discarding it.

Also keep in mind  that getting prints from an item is not like TV. Depending on how the item was handled by the suspect and the surface that was touched...often you cannot get a quality print even though someone may have handled the item extensively. Regardless they still should have tried to process the item for prints but if they did and didn't find your husbands prints... they could come up with all kind of excuses why they didn't. That being the case... it is to your advantage that they didn't dust it for prints because it would make a judge/jury suspicious as to why they didn't.

As for one officer claiming he put it in his pocket and another stuffing it down his pants that can only help you also but police officers are just like most other witnesses. Two different people see the same things differently.

As for the method the container was opened...they say a key. I assume they saw that? Cutting something open like that with a key would certainly look different then if it was cut with a razor. A key would be jagged and a razor clean and straight as you describe. That would be a contradiction a prosecutor would have a hard time explaining away.

However,if they both claim they saw him conceal the same item and then a similar item is found discarded it sounds like they had probable cause to make an arrest BUT that does not mean there is sufficient evidence to get a conviction...that is probably why there were additional charges.

The additional charges are generally added after a review of the entire case and may have been added by the prosecutor because they believe the initial charge is weak as far as meeting the requirements of the law.

I assume the trespass charge was because they believe your husband entered the store with the intent to steal something. By law you are allowed free access to the store solely for the purpose of purchasing something...to enter for the purpose of stealing would not be permissible. I think it would be hard to prove it was his intent prior to entering the store but the more charges they have...the more likely your husband will agree to a plea to one charge if they drop the others...doesn't mean it is ethical but that's the way the system works.

And lastly the third charge of damage to property/vandalism? That would probably be the easiest of the three to prove...assuming they can prove he had the item in his possession.

The fact that there are contradictions in the officers stories, where the item was concealed, how the item was opened, no prints, no video, etc.is evidence that helps your husband but unfortunately to get that evidence before a court you will need to get a lawyer. And then the prosecutor still will try to give valid reasons for those contradictions.

Hope this helps...good luck.