Back in 2010, a group of people in New Mexico — none of them Costco members — flashed a membership card on their way into an Albuquerque-area store. And while perusing the oversized aisles, they stashed some items in a purse belonging to a woman in the group.
They did pay for some bottled water and ice cream, but didn’t pay for the items put into the purse, so a loss-prevention employee stopped them.
In 2012, some members of the group were found guilty of burglary, which New Mexico state law defines, in part, as “unauthorized entry of any vehicle, watercraft, aircraft, dwelling or other structure, movable or immovable, with the intent to commit any felony or theft therein.”
Prosecutors argued that the crime rose to the level of burglary because the shoplifters had no right to enter the store since they were not Costco members. Thus, use of someone else’s card constituted an unauthorized entry by fraud, deceit, or pretense.
But a state appeals court panel unanimously reversed that conviction earlier this year, ruling that “retail stores are open to the public during business hours and, therefore, an individual who enters a retail store with the intent to shoplift is not guilty of burglary.”
In their opinion, recently published in Bar Bulletin [PDF, see p. 25], the appeals panel pointed to conflicting testimony provided by two Costco employees during the trial.
One greeter first testified that members of the public are not allowed inside Costco without a membership, but also told the court that it isn’t routine or in her “job description” to check the photos on membership cards, agreeing that a “ten-year-old Costco card, a friend’s card, [or] a card they found on the street” could be used to enter the store.
A second employee, this one from loss-prevention, also testified that only members could enter the store but later clarified that the store policy really just meant that non-members “cannot make purchases.”
“Notwithstanding Costco’s membership policies, we discern no particular security or privacy interest at stake inside Costco that justifies recognizing a departure from the general rule that we presume retail stores to be open to the public,” reads the appeals court’s opinion.
While Costco shoppers pay a membership fee to enjoy the benefits of buying in bulk from the store, the court claims that, “Once inside, the store is similar to any other retail store in that merchandise is presented for the shopping public to purchase.”
Thus, explains the panel, using someone else’s card to enter a Costco or similar store does not engender “the feeling of violation and vulnerability” normally associated with the crime of burglary.
The court also pointed out that there is no security purpose to the membership requirement, as there are already laws against trespassing and theft.
“Defendant’s entry into Costco during business hours, albeit deceptive, granted him access to an otherwise open shopping area, as opposed to an area ‘where things are stored and personal items can be kept private,'” writes the court. “Thus, as far as the privacy and security interests of the store itself are concerned, we see no heightened or unique security or privacy interest that distinguishes Costco from other retail stores that we generally consider open to the public.”
Commenting on the implications of assuming that faking your way into Costco may raise a petty theft to charge to the level of burglary, the panel concludes, “It would be an absurd application of our burglary statute to punish those who shoplift from Sam’s Club more severely than those who shoplift from Walmart.”
At the same time, the court acknowledges that some states have a much broader definition of burglary, citing the California criminal code, which states that “Every person who enters any store with intent to commit grand or petit larceny or any felony is guilty of burglary.”
In that case, the definition is so broad that it doesn’t matter whether you use someone else’s card or your own Costco ID; if you go into the store to steal, you’ve committed a burglary in California.