2c:20-11b(1) Shoplifting.

2c:20-11b(1) Shoplifting.
a.Definitions.  The following definitions apply to this section:

(1)"Shopping cart"  means those push carts of the type or types which are commonly provided by grocery stores, drug stores or other retail mercantile establishments for the use of the public in transporting commodities in stores  and markets and, incidentally, from the stores to a place outside the store;

(2)"Store or other retail mercantile establishment"  means a place where merchandise is displayed, held, stored or sold or offered to the public for sale;

(3)"Merchandise"  means any goods, chattels, foodstuffs or wares of any type and description, regardless of the value thereof;

(4)"Merchant" means any owner or operator of any store or other retail mercantile establishment, or any agent, servant, employee, lessee, consignee, officer, director, franchisee or independent contractor of such owner or proprietor;

(5)"Person" means any individual or individuals, including an agent, servant or employee of a merchant where the facts of the situation so require;

(6)"Conceal" means to conceal merchandise so that, although there may be some notice of its presence, it is not visible through ordinary observation;

(7)"Full retail value" means the merchant's stated or advertised price of the merchandise;

(8)"Premises of a store or retail mercantile establishment" means and includes but is not limited to, the retail mercantile establishment; any common use areas in shopping centers and all parking areas set aside by a merchant or on behalf of a merchant for the parking of vehicles for the convenience of the patrons of such retail mercantile establishment;

(9)"Under-ring" means to cause the cash register or other sale recording device to reflect less than the full retail value of the merchandise;

(10) "Antishoplifting or inventory control device countermeasure" means any item or device which is designed, manufactured, modified, or altered to defeat any antishoplifting or inventory control device;

(11) "Organized retail theft enterprise" means any association of two or more persons who engage in the conduct of or are associated for the purpose of effectuating the transfer or sale of shoplifted merchandise.

b.Shoplifting.  Shoplifting shall consist of any one or more of the following acts:

(1)For any person purposely to take possession of, carry away, transfer or cause to be carried away or transferred, any merchandise displayed, held, stored or offered for sale by any store or other retail mercantile establishment with the intention of depriving the merchant of the possession, use or benefit of such merchandise or converting the same to the use of such person without paying to the merchant the full retail value thereof.

(2)For any person purposely to conceal upon his person or otherwise any merchandise offered for sale by any store or other retail mercantile establishment with the intention of depriving the merchant of the processes, use or benefit of such merchandise or converting the same to the use of such person without paying to the merchant the value thereof.

(3)For any person purposely to alter, transfer or remove any label, price tag or marking indicia of value or any other markings which aid in determining value affixed to any merchandise displayed, held, stored or offered for sale by any store or other retail mercantile establishment and to attempt to purchase such merchandise personally or in consort with another at less than the full retail value with the intention of depriving the merchant of all or some part of the value thereof.

(4)For any person purposely to transfer any merchandise displayed, held, stored or offered for sale by any store or other retail merchandise establishment from the container in or on which the same shall be displayed to any other container with intent to deprive the merchant of all or some part of the retail value thereof.

(5)For any person purposely to under-ring with the intention of depriving the merchant of the full retail value thereof.

(6)For any person purposely to remove a shopping cart from the premises of a store or other retail mercantile establishment without the consent of the  merchant given at the time of such removal with the intention of permanently depriving the merchant of the possession, use or benefit of such cart.

c.Gradation.  (1) Shoplifting constitutes a crime of the second degree under subsection b. of this section if the full retail value of the merchandise is  $75,000 or more, or the offense is committed in furtherance of or in conjunction with an organized retail theft enterprise and the full retail value of the merchandise is $1,000 or more.

(2)Shoplifting constitutes a crime of the third degree under subsection b. of this section if the full retail value of the merchandise exceeds $500 but is less than  $75,000, or the offense is committed in furtherance of or in conjunction with an organized retail theft enterprise and the full retail value of the merchandise is less than $1,000.

(3)Shoplifting constitutes a crime of the fourth degree under subsection b. of this section if the full retail value of the merchandise is at least $200 but does not exceed $500.

(4)Shoplifting is a disorderly persons offense under subsection b. of this section if the full retail value of the merchandise is less than $200.

The value of the merchandise involved in a violation of this section may be aggregated in determining the grade of the offense where the acts or conduct constituting a violation were committed pursuant to one scheme or course of conduct, whether from the same person or several persons, or were committed in furtherance of or in conjunction with an organized retail theft enterprise.

Additionally, notwithstanding the term of imprisonment provided in N.J.S.2C:43-6 or 2C:43-8, any person convicted of a shoplifting offense shall be sentenced to perform community service as follows:  for a first offense, at least ten days of community service;  for a second offense, at least 15 days of community service;  and for a third or subsequent offense, a maximum of 25 days of community service and any person convicted of a third or subsequent shoplifting offense shall serve a minimum term of imprisonment of not less than 90 days.

d.Presumptions.  Any person purposely concealing unpurchased merchandise of any store or other retail mercantile establishment, either on the premises or outside the premises of such store or other retail mercantile establishment, shall be prima facie presumed to have so concealed such merchandise with the intention of depriving the merchant of the possession, use or benefit of such merchandise without paying the full retail value thereof, and the finding of such merchandise concealed upon the person or among the belongings of such person shall be prima facie evidence of purposeful concealment; and if such person conceals, or causes to be concealed, such merchandise upon the person or among the belongings of another, the finding of the same shall also be prima facie evidence of willful concealment on the part of the person so concealing such merchandise.

e.A law enforcement officer, or a special officer, or a merchant, who has probable cause for believing that a person has willfully concealed unpurchased merchandise and that he can recover the merchandise by taking the person into custody, may, for the purpose of attempting to effect recovery thereof, take the person into custody and detain him in a reasonable manner for not more than a reasonable time, and the taking into custody by a law enforcement officer or special officer or merchant shall not render such person criminally or civilly liable in any manner or to any extent whatsoever.

Any law enforcement officer may arrest without warrant any person he has probable cause for believing has committed the offense of shoplifting as defined in this section.

A merchant who causes the arrest of a person for shoplifting, as provided for in this section, shall not be criminally or civilly liable in any manner or to any extent whatsoever where the merchant has probable cause for believing that the person arrested committed the offense of shoplifting.

f.Any person who possesses or uses any antishoplifting or inventory control device countermeasure within any store or other retail mercantile establishment is guilty of a disorderly persons offense.

State v. Derek J. Kaltner (A-8-11) Evidence suppressed where police officers conducted warrantless search of the home for noise complaint

State v. Derek J. Kaltner (A-8-11)(068778)

(NOTE: This Court wrote no full opinion in this case. Rather, the Court’s affirmance of the judgment of the Appellate Division is based substantially on the reasons expressed in the opinion below.)

  Decided May 1, 2012

PER CURIAM

The Court considered whether the trial court correctly suppressed drug evidence found in a bedroom during a warrantless search of a residence by police officers who were responding to noise complaints.

The defense disputed the officers’ version of the events, arguing that the party was small, and that the officers searched the entire house and forcibly entered the bedrooms, including Kaltner’s, by kicking down locked bedroom doors. The trial judge found credible Officer Camacho’s testimony about the size and scope of the party and the volume of noise. The trial judge also found that the unidentified adult male who answered the door invited the officers at least into the common area of the home. However, the trial judge suppressed the drug evidence after concluding that the officers unlawfully extended their search beyond entry into the first floor main living area. The trial judge explained that any number of methods could have been employed by the officers to locate a resident of the premises that would not have required invading the private areas of the home.

The Appellate Division affirmed. 420 N.J. Super. 524 (App. Div. 2011). The Appellate Division rejected the State’s argument that by hosting a large party defendant had no expectation of privacy in the home or, in the alternative, that the officers acted reasonably in their community caretaking function to abate the noise nuisance. The Appellate Division explained that Kaltner had a reasonable expectation of privacy despite the party, which was not open to the public, therefore a search warrant grounded in probable cause was needed unless an exception to the warrant requirement applied. The Appellate Division agreed with the motion judge that the police officers’ initial entry into the premises in response to the noise complaint was lawful. The question, however, was whether, after their legitimate entry, the community caretaking exception to the warrant requirement justified the officers’ conduct in fanning out in search of those in control of the premises in an attempt to abate the noise nuisance.

The Appellate Division  explained that the community caretaking exception to the warrant requirement requires a case-by-case, fact-sensitive analysis. The relevant question focuses on the objective reasonableness of the police action under the circumstances, and requires that the court balance the nature of the intrusion necessary to handle the perceived threat to the community caretaking concern, the seriousness of the underlying harm to be averted, and the relative importance of the community caretaking concern. The Appellate Division  concluded that the police action in this case was not constitutionally permitted. Although the officers’ entry into the dwelling was initially justified, their subsequent action in fanning out and conducting, in essence, a full-blown search of the home was not reasonably related in scope to the circumstances that justified the entry in the first place, nor was it carried out in a manner consistent with the factors supporting the entry’s initial legitimacy. As explained by the motion judge, the objective of noise abatement could have been achieved well short of the officers’ full-scale search. For example, given the number of officers present and the fact that the offending noise emanated from the crowd itself, the officers could easily have dispersed the partiers.

After balancing the competing interests, including the important privacy interest in one’s home, the breadth and extent of the invasion of the entire premises, the limited nature of the community caretaking concern, and the relatively low threat posed in light of the available less-drastic options, the Appellate Division  concluded that Officer Camacho was not lawfully in the hallway outside Kaltner’s bedroom when he viewed the evidence, and the plain-view doctrine did not excuse his entry into the bedroom and seizure of the drugs.

HELD: The decision of the Appellate Division is affirmed substantially for the reasons expressed in Judge Parrillo’s opinion. Because the police officers’ warrantless search of the home after they were called to address a noise complaint was not objectively reasonable, the evidence obtained during the search was properly suppressed.

The judgment of the Appellate Division was AFFIRMED.