The Case of the Concealing Tote

The Case of the Concealing Tote

Posted By J. Bouchard Law || 6-Sep-2016

Relevant Law – Va. Code §18.2-103 Concealment,

Misdemeanor or Felony depending on dollar amount

There has been a trend in larceny cases mostly involving Wal-Mart and other big box stores, which involves criminal defendants being charged with concealment, when in fact, they have done nothing wrong.

The Issue is with Tote containers. These are the home use snap lid storage containers that are very common. In these scenarios, clients are placing a clear or opaque tote in their shopping cart and then placing additional items inside the tote. Sometimes they snap the lid and place more items on top and other times they do not.

Sometimes the story ends here, where a loss prevention officer will stop a customer the moment the tote lid is snapped shut and accuse the shopper of concealment. The officer is incorrect but more on that later.

If the scenario continued differently, they would have more of a case. The client goes through the register with a lid-snapped tote with items inside it. The sales person merely scans the tote and does not check it to see if items are inside it. The client passes all points of sale. Then the client is stopped by loss prevention who had been watching them the entire time and now the client is now guilty of larceny of the items inside the tote.

But this never happens as described above, and here is why. The checkout people know to check inside the totes. I have bought several myself and put items inside because the tote was so large it took up the entire space inside the cart. So, naturally, I placed items inside it, filled it up, snapped the lid on it, and then added items to the top of the lid. When I got to the isle, I opened and emptied it. On other occasions I have only bought an empty tote with the lid snapped on and I have asked the clerk if she wanted me to open it. She merely grabbed it, shook it slightly, and said, “Sounds good.”

Where this is coming up is the first scenario listed above. Loss prevention, in my opinion, is using this “concealing” to stop people on their watch lists (and yes they have them) from stealing something they may be about to steal, but have only put it inside the tote to hide briefly what it is.

Concealing an item is only concealment when you place it inside a container you own, such as your pants, your purse, or your socks. By the statute above, you must hide the item so that its nature and character are hidden from the true owner. But in the case of a tote this is not correct. Putting an item inside a tote is no different than burying a steak under two-dozen pairs of socks. (Yes, at a Wal-Mart super store, this is possible). But as long as everything is in the cart, you should not be charged with concealment. If you are, you should be found not guilty, as my client was.

Just pay for everything before you pass the last point of sale and don’t put steaks down your pants. It’s never worth it, and yes they are watching you.

-Julian Bouchard

September 5, 2016

J. Bouchard Law

For reference - §18.2-103 states:

Whoever, without authority, with the intention of converting goods or merchandise to his own or another's use without having paid the full purchase price thereof, or of defrauding the owner of the value of the goods or merchandise, (i) willfully conceals or takes possession of the goods or merchandise of any store or other mercantile establishment, or (ii) alters the price tag or other price marking on such goods or merchandise, or transfers the goods from one container to another, or (iii) counsels, assists, aids or abets another in the performance of any of the above acts, when the value of the goods or merchandise involved in the offense is less than $200, shall be guilty of petit larceny and, when the value of the goods or merchandise involved in the offense is $200 or more, shall be guilty of grand larceny. The willful concealment of goods or merchandise of any store or other mercantile establishment, while still on the premises thereof, shall be prima facie evidence of an intent to convert and defraud the owner thereof out of the value of the goods or merchandise.


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