Memorandum

08/01/19

Fargo City Prosecution Policy -- Shoplifting

This Policy applies to shoplifting and other “theft by deception” matters in retail stores located
within the City of Fargo that would be referred to the Fargo City Prosecutors’ Office. As you
may know, the Fargo City Prosecutors’ Office only charges out violations of ordinances of the
City of Fargo. With respect to theft or shoplifting cases, if the value of the stolen merchandise
exceeds $500 in value, those cases are not within the jurisdiction of municipal court or the Fargo
prosecutor. Those cases, of a value higher than $500, may be referred to the Cass County State’s
Attorney Office for charge-out as a Class A misdemeanor or, perhaps, more serious classification
of offense, With respect to Fargo City matters, however, please consult the following list for
guidance on what types of shoplifting cases will be prosecuted and how you can ensure
competent evidence is obtained and provided.

1. “Delayed calls” or “delayed evidence” (a/k/a reliance solely on video evidence to prove
case). -- Relying solely upon delayed video evidence carries numerous pitfalls, including the
following1:

• Caught “red-handed”. It is very helpful when a suspect is caught with merchandise in

hand.
• Positive Identification of Suspect. Identification of the suspect can be called into
question without a positive identification of a live suspect by a known witness who can
be subpoenaed to testify in court. Identification can be challenging when blurry video
“stills” are circulated to loss prevention personnel and law enforcement.
• Confrontation of Suspect. If the suspect is not interviewed, preferably at the scene, no
admissions or explanations can be obtained from the suspect. Such admissions and
explanations are frequently helpful in court.
• Courtroom admissible video evidence. There can be a number of evidentiary hurdles to
overcome, even in the best cases, in collecting, disclosing (to defendants or their
attorney), viewing and admitting into evidence videos of the criminal behavior.
• Continuous “chain of viewing” by video. Successful convictions for shoplifting
frequently require evidence of a continuous “viewing” of the suspect from the point the
suspect takes possession of the item(s) to the point the suspect leaves the store (or passes
the last point of purchase). Delayed evidence collection situations require the “chain of
viewing” to be self-evident. In other words, the judge or jury must be able to determine,
solely from viewing the video or videos, that the defendant was continuously “viewed”
by the camera. The chain of viewing the theft is often broken.

1
See December 2016 Memo for a more complete discussion of “video pitfalls.”
Because of the several issues with video live, in-person viewing of the shoplifting is required for
shoplifting charges to be authorized.

Prosecution Policy #1. The Prosecutors’ Office will not charge out “delayed calls”,
as described above. Further, the Police Department has advised that their officers
have been instructed to not collect “delayed call” evidence from stores. (Note: The
Police Department is exploring an alternative where loss prevention officers would
be able to self-report a delayed-call matter on a fill-able form to be emailed to the
Police Department.)

Fargo Police Officers will not take reports on delayed calls unless the dollar amount
is over $500.00 and the offense will be cited into Cass County Court, or the items
taken pose a public safety risk.

2. Video (DVD) Submission. – Video evidence can be a very helpful supplement to a

shoplifting case – to confirm and memorialize the testimony of the live witness. Therefore, if
video is relied on by either loss prevention or the police, the video needs to be retrieved from the
store video system and copied onto duplicate (2) DVD discs in either AVI, Mp4 or MKV format
so that one copy can be disclosed to the defendant or defense attorney and the other copy can be
used in the courtroom. Failure to provide compatible video allows the defense to request
suppression of testimony associated with the video. In addition, the prosecutor is unable to
adequately prepare if video evidence is not viewable. If there is store video from an incident and
it is not available when the officer takes the report, it is the store’s responsibility to retrieve the
video, make two copies in the appropriate format, and deliver them to the City Prosecutors’
Office. Failure to provide compatible video to the Fargo Police/City of Fargo Prosecutors’ Office
when the case relies upon solid video evidence will likely result in Fargo prosecutor declining to
prosecute.

Prosecution Policy #2. The Prosecutors’ Office will be forced to dismiss shoplifting
cases in which video evidence has been collected but when the required two copies
(DVD’s) in a compatible format (avi, mp4 or mkv) are not supplied directly to the
City Prosecutors’ Office in a timely manner.

Fargo Police officers will not pick up video evidence, unless it is supplied in the
required format (avi, mp4 or mkv) upon the initial call for service.
3. Suspect Identification. A positive identification of the suspect is crucial in any case—the
court record must reflect that the person observed to have committed the crime was, in fact, the
defendant in the courtroom. In most cases, that means that someone must be able to take the
witness stand in court, point at the defendant and testify under oath that, “yes, that’s the person
that shoplifted.” Therefore, it is best when a suspect can be detained so that his/her identification
can be verified with a driver’s license or other ID. When, however, the suspect flees or
otherwise evades detention, then “on-the-floor”, or “in-person”, identification of the suspect can
also be effectively admitted in the courtroom through live testimony. This is where video
evidence, as a supplement to live-witness evidence, can be particularly helpful. A positive ID
should only be made if the person is confident of the identification. We need the loss
prevention person or other person who can identify the suspect to provide their name and
contact information so that they can be contacted and/or subpoenaed to testify. If the
person and contact information is not provided, the City of Fargo Prosecutors’ Officer will likely
decline the charge. Please note that in delayed-call situations, unless the stolen item is inherently
dangerous or could be a threat to public safety (i.e. a gun or explosives), the Police Department
will no longer be circulating captured still-shots of shoplifting suspects in an effort to identify the
suspect. If the situation is not a “delayed call”—in other words, if store employees attempted to
apprehend or at least stop the suspect and the suspect has fled the scene—the Police Department
will provide assistance in obtaining identification of the suspect and in such non-delayed-call
situations, if the person who saw the suspect in the store cannot identify the suspect, a picture
may be circulated to the Police Department for assistance in obtaining said identity.

Prosecution Policy #3. A complaint or information will only be authorized by the

Fargo city prosecutor if the loss prevention officer’s written report clearly describes
the evidence that exists to establish the identification of the suspected thief. (i.e.
“Loss Prevention Officer Jane Smith recognized the suspect as being John Doe, who
resides at XYZ Birch Street, Fargo, ND (Cell No. 701-371-1111”). Cases submitted
without such a “positive identification” of the suspect and with the name and
contact information of the person to be contacted and subpoenaed to testify about
such identification, will be declined.

Fargo Police officers will not take reports unless the suspect is identified by loss
prevention prior to the arrival of the initial responding officer.
4. Failing to Criminally Trespass. -- Many shoplifters are repeat offenders and in such cases, if
the suspect is detained, the store should “criminally trespass” the suspect (which includes
providing verbal and written notice). Then, the next time the suspect is enters the premises, the
police should be called immediately before any additional shoplifting crimes can occur. The
suspect can then either be arrested (by citizen’s arrest) or can later be charged via the
Prosecutors’ Office with Criminal Trespass, which is a Class B Misdemeanor. Criminal trespass
has the same maximum penalties as shoplifting ($1,500 and 30 days in jail). The store has the
ability and responsibility to prevent shoplifting by pursuing this reasonable alternative instead of
allowing preventable shopliftings to occur and then shifting the responsibility to the police. The
city prosecutor will likely decline a request to prosecute a suspect if the store refuses to trespass
a shoplifter or refuses to call in a suspect who was trespassed.

Prosecution Policy #4. Shoplifting charges may be declined by the city prosecutor
where stores fail or refuse to utilize “criminal trespass” notice procedures to prevent
repeat offenders from entering the store.

Although we believe the most effective and efficient method of preventing repeat
shoplifting by individuals is to criminally trespass, we also recognize the use of this
law is a decision that needs to be made at the store level. It should be noted the
burden of proof for prosecution of criminal trespass is much lower than shoplifting
and would most likely result in a guilty plea or guilty verdict.

Miscellaneous—recommended practices:

• Although shoplifting incidents must be reported immediately. If a clerk or loss prevention

officer is unable to detain the suspect, as much information as possible should be
collected and clearly denoted on the incident report (i.e. vehicle license number,
description of suspect). If some items are scanned/not scanned or UPC stickers are
switched, please be clear on the value of the merchandise stolen.

• Fraudulent Returns. -- A common shoplifting tactic is when a suspect goes in to a store

with no merchandise, selects merchandise, and then “returns” the unpaid merchandise for
store credit, frequently in the form of a gift card. Preventing this type of theft is within
the store’s ability and control and we recommend that the store develop a policy
whereby a customer who is making a return without proof of purchase (either a printed
receipt or available credit card history reflecting the purchase by that customer) is
provided a gift card that is not “activated” for a day or two—a period long enough for the
loss prevention office to review video evidence to provide assurance that, indeed, the
customer entered the store with the item that was being returned. If it is established that
the gift card was obtained improperly, the store could cancel the gift card and losses by
theft minimized We recommend that retail stores help themselves by adopting return-
without-receipt policies that prevent such fraudulent practices.
• Employee theft. -- Employee theft is still theft; however, many stores have written and
unwritten rules about what employees may do with merchandise, especially if it is
damaged, expired, or returned. In addition, defendants sometimes state they were
planning to pay for the items after their shift ended or they request that the cost be
deducted from their next paycheck. Failing to have a policy in place allows defendants to
argue the merchandise was removed/consumed with consent or to argue that they planned
on paying for it. We recommend that stores should have a written policy in place with
clear rules as to how employees can buy or possess (and consume) store merchandise.
Failure to have such a written policy may preclude the Fargo Prosecutors’ Office from
authorizing charges.