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New Mexico Compilation
Commission, Santa Fe, NM
'00'04- 14:04:48 2011.10.21
Certiorari Denied, September 7, 2011, No. 33,151
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: 2011-NMCA-100
Filing Date: July 15, 2011
Docket No. 29,624
PATRICIA HOLGUIN,
Plaintiff-Appellant,
v.
SALLY BEAUTY SUPPLY INC.
and AMANDA ESTRADA, individually,
Defendants-Appellees.
APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
James T. Martin, District Judge
Behles Law Firm, P.C.
Jennie Deden Behles
Albuquerque, NM
Eric N. Ortiz, LLC
Eric N. Ortiz
Albuquerque, NM
for Appellant
Butt, Thornton & Baehr, PC
Phillip W. Cheves
Albuquerque, NM
for Appellees
OPINION
VIGIL, Judge.
1
{1} Merchants have a conditional privilege to detain a customer in a reasonable manner,
for a reasonable time, to effect a recovery of the merchandise when they have probable cause
to believe the customer has willfully concealed merchandise. Two questions of first
impression are presented in this case: (1) whether a customer who places merchandise into
a reusable, personal canvas shopping bag, without more, has “willfully concealed”
merchandise; and (2) whether a statutory presumption of intent applicable to a criminal
prosecution for shoplifting also applies to the merchant’s conditional privilege. The district
court answered both questions in the affirmative and granted Defendants summary judgment.
We disagree and reverse.
BACKGROUND
{2} Plaintiff sued Sally Beauty Supply and the assistant manager (Defendants) seeking
damages in a jury trial, for false imprisonment, false accusation of shoplifting, and false and
malicious abuse of prosecution. Defendants answered asserting, among other defenses, that
they are immune from liability under NMSA 1978, Sections 30-16-22 and 30-16-23 (1965).
Plaintiff and Defendants each sought summary judgment on this defense.
{3} Plaintiff presented evidence she went to Defendants’ store carrying her “eco-friendly
canvas shopping tote,” a large bag which is conspicuous when used. Upon entering
Defendants’ store, there were no posted signs stating that shopping totes were not allowed,
and she was not made aware that they were prohibited. Plaintiff picked up a can of mousse
that was not exactly what she wanted and started to carry it in her tote toward the front
counter to ask the cashier a question about it. As she approached the front of the store, the
assistant manager approached her and asked what was in the bag. The manager told Plaintiff
that once she put the hair mousse in her tote bag, she was shoplifting. The police were
called, and when Plaintiff refused to sign a “no trespass” card indicating she would not
return to the store, Plaintiff was arrested and charged with shoplifting, resisting, evading or
obstructing an officer, and disorderly conduct.
{4} The district court concluded, “As a matter of law, Defendants had the authority to
detain Plaintiff and are immune from suit pursuant to [Section] 30-16-23.” Accordingly, the
district court granted summary judgment in Defendants’ favor and dismissed the complaint
with prejudice. Plaintiff appeals. Two of the court’s findings are pertinent to this appeal:
(1) when the mousse was put inside the bag, and before it was removed, the assistant
manager had probable cause to believe Plaintiff was shoplifting because “she took
merchandise belonging to Sally’s Beauty Supply and put it into her bag”; and (2) placing the
mousse into the bag satisfies a statutory presumption that Plaintiff intended to shoplift, and
the statutory presumption applies to a determination of whether Defendants have immunity.
{5} At oral argument, the parties agreed that the operative fact pertinent to this appeal
is Plaintiff’s act of placing the mousse in the shopping bag and that this Court will not
consider anything which may have occurred afterward. As more fully explained below, we
agree with the parties, and focus our analysis on this fact.
2
STANDARD OF REVIEW
{6} “Summary judgment is proper if there are no genuine issues of material fact and the
movant is entitled to judgment as a matter of law.” Roth v. Thompson, 113 N.M. 331, 334,
825 P.2d 1241, 1244 (1992); see Rule 1-056(C) NMRA. “We review these legal questions
de novo.” Self v. United Parcel Serv., Inc., 1998-NMSC-046, ¶ 6, 126 N.M. 396, 970 P.2d
582. Issues involving application of a statute to the facts of a case are questions of law that
we review de novo. See Hise v. City of Albuquerque, 2003-NMCA-015, ¶ 8, 133 N.M. 133,
61 P.3d 842 (stating that review of the application of the law to the facts is conducted de
novo).
{7} To determine whether the district court properly granted summary judgment under
this standard, we discuss: (1) the elements of the conditional statutory privilege afforded
merchants to detain a customer, and (2) if a statutory presumption of an intent to shoplift
applies to a determination of whether the merchant has a privilege to detain a customer.
THE CONDITIONAL PRIVILEGE FOR A REASONABLE DETENTION
{8} To determine whether the district court properly granted Defendants summary
judgment on grounds that their detention of Plaintiff was privileged under Section 30-16-23,
we examine statutory language as it pertains to the facts of this case, the probable cause
requirement of the statute, and the meaning of “willfully concealed” under the statute.
The Statute
{9} In Section 30-16-23, the Legislature has invested police officers, special officers, and
merchants with a conditional privilege to detain a person free from civil or criminal liability.
In its entirety, the statute provides:
If any law enforcement officer, special officer or merchant has
probable cause for believing that a person has willfully taken possession of
any merchandise with the intention of converting it without paying for it, or
has willfully concealed merchandise, and that he can recover the merchandise
by detaining the person or taking him into custody, the law enforcement
officer, special officer or merchant may, for the purpose of attempting to
affect [effect] a recovery of the merchandise, take the person into custody
and detain him in a reasonable manner for a reasonable time. Such taking
into custody or detention shall not subject the officer or merchant to any
criminal or civil liability.
Any law enforcement officer may arrest without warrant any person
he has probable cause for believing has committed the crime of shoplifting.
Any merchant who causes such an arrest shall not be criminally or civilly
liable if he has probable cause for believing the person so arrested has
3
committed the crime of shoplifting.
Id. (alteration in original).
{10} Preliminarily, we identify the pertinent parts of the statute that are involved in this
case. First, the arguments and the district court ruling consider only whether Plaintiff
“willfully concealed merchandise.” No argument is made by Plaintiff or Defendants about
whether Plaintiff took possession of the mousse “with the intention of converting it without
paying for it,” and the district court did not consider this part of the statute in rendering its
ruling. Secondly, we are only concerned with Defendants’ conduct. This case does not
involve the conduct of a police officer or a “special officer” (which is not defined). Further,
since the undisputed facts demonstrate that the decision to arrest Plaintiff, was made by the
police and that Defendants did not “cause” Plaintiff’s arrest, we do not consider the last
paragraph of the statute. Finally, the parties and the district court agree that this case
involves a detention, not a taking into custody.
{11} Thus, the elements of the merchant’s conditional privilege as applied in this case are:
(1) that Defendants had probable cause for believing that Plaintiff willfully concealed
merchandise; and (2) that Defendants detained Plaintiff in a reasonable manner for a
reasonable time to effect a recovery of the merchandise.
The Requirement of Probable Cause
{12} The conditional privilege given to merchants requires probable cause to justify a
detention. This requirement balances the interests of the merchant, on the one hand, to
protect itself from shoplifters, and the interests of the public, on the other hand, to be free
from being detained without a good and sufficient cause. See Henry v. Shopper’s World,
490 A.2d 320, 322 (N.J. Super. Ct. App. Div. 1985) (per curiam) (stating that the merchant’s
privilege statute “must be construed in a manner reasonably calculated to carry out its
objective of protecting the merchant from shoplifting and safeguarding the innocent
customer” and stating that a merchant may not act without cause); J.C. Penney Co. v. Cox,
148 So. 2d 679, 684 (Miss. 1963) (stating that, on the one hand, such statutes protect
merchants from shoplifters and, on the other hand, they do not give merchants complete
power and authority to detain, search, and accuse customers of stealing upon the mere whim
of a merchant or its employees). The burden is on the merchant to demonstrate probable
cause and that probable cause was present at the time the detention commenced. See Jones
v. Target Corp., 341 F. Supp. 2d 583, 587-88 (E.D. Va. 2004) (stating that the burden is on
the merchant to establish probable cause and that the probable cause determination is based
on the information known to the merchant at the time of the detention under Virginia
merchant immunity statute); Cox, 148 So. 2d at 684 (stating that the burden of proof is on
the merchant to show probable cause that a person willfully concealed unpurchased
merchandise upon his person or otherwise before the merchant may question that person).
{13} The parties agree on the substance of what probable cause means. Citing Yucca
4
Ford, Inc. v. Scarsella, 85 N.M. 89, 92, 509 P.2d 564, 567 (Ct. App. 1973), Plaintiff states,
“Probable cause is defined as an honest belief in the guilt of the accused based on reasonable
grounds. Reasonable grounds are facts and circumstances which would warrant a prudent
and cautious person in believing that the accused is guilty.” Defendants in turn quote from
State v. Copeland, 105 N.M. 27, 31, 727 P.2d 1342, 1346 (Ct. App. 1986), in asserting that
“Probable cause exists when the facts and circumstances within the officers’ knowledge, and
of which they had reasonably trustworthy information, are sufficient to warrant a man of
reasonable caution to believe that an offense has been or is being committed.”
{14} We agree with the parties and hold that a merchant has probable cause to detain a
person when the totality of the facts and circumstances within the merchant’s knowledge,
and of which the merchant has reasonably trustworthy information, are sufficient to warrant
a merchant of reasonable caution to believe that the person is willfully concealing
merchandise.
The Meaning of “Willfully Concealed”
{15} Whether Defendants had probable cause to detain Plaintiff hinges on what “willfully
concealed” means in Section 30-16-23.
{16} In self-service stores, customers have permission to pick up, handle, move, try on,
replace, and carry about merchandise within the store. See Durphy v. United States, 235
A.2d 326, 327 (D.C. 1967) (stating that customers in a self-service store have implied
permission of the store to pick up, move, and either replace or pay for the product offered
for sale); Lee v. State, 474 A.2d 537, 541 (Md. Ct. Spec. App. 1984) (stating that in modern,
self-service stores, customers are impliedly invited to examine, try on, and carry about the
merchandise on display for sale); Carter v. Commonwealth, 694 S.E.2d 590, 594 (Va. 2010)
(stating that in a self-service store customers have implied permission to move merchandise
about the premises of the store). Within this context, it is readily apparent that merchandise
can be “willfully concealed” in the sense that is willfully withdrawn from observation or
kept from sight in ways that are nevertheless still within the scope of the express or implied
permission given by a store to its customers. Plaintiff invites us to consider the scenario in
which a store manager who is trying to sell a wallet and tells the customer to put the wallet
into his pocket to see how it feels. By complying, the customer has “willfully concealed”
the wallet in the sense that he “willfully” withdrew the wallet from sight. On the other hand,
the customer is not acting in any way adverse to the interests of the merchant. Many more
examples can readily be constructed, and courts have done so.
Grocery stores often have separate areas within them—for example,
a pharmacy, an electronics center, or a café and deli—where items can be
separately purchased, even though the person intends to continue shopping
in the store. If the . . . concealment-of-merchandise ordinance were
interpreted literally, a person would violate the ordinance if they made a
pharmacy purchase and then placed the purchased item in their pocket, or in
5
an opaque shopping bag, while they remained in the store and continued to
shop for other items. The person would have ‘knowingly concealed’
merchandise while ‘upon the premises where such merchandise . . . is kept
for the purposes of sale, barter or storage.’
....
In addition, there are circumstances where a person might knowingly
conceal an unpurchased item even though they fully intend to pay for the
item before leaving the store. For example, a person who is shopping with
their young children might conceal candy from the children, even though the
person has every intention of paying for the item at the check-out counter.
Similarly, a person who is shopping with their spouse might conceal an
anniversary card (again, with the intention of paying for it).
Strane v. Municipality of Anchorage, 250 P.3d 546, 549-50 (Alaska Ct. App. 2011)
(footnotes omitted).
{17} We also note that courts have even disagreed on whether merchandise in open view
is “concealed.” Compare Henry, 490 A.2d at 321-22 (concluding that because the phrase
“concealed unpurchased merchandise” applies to items in plain view, but worn as though
they had been purchased, a coat worn by a customer with a tag fastened to its back
constituted “concealed unpurchased merchandise”), with Walters, 2003 OK 100, ¶¶ 2, 11
n.24 (rejecting Henry’s approach and concluding the word “concealed” did not apply to a
sweater worn in plain view).
{18} The term “willfully” in the merchant’s conditional privilege indicates an intent which
requires more than merely putting merchandise out of sight. See Strane, 250 P.3d at 550
(concluding that to knowingly conceal merchandise in violation of a criminal statute, the
purpose must be to hide the merchandise from the store owner or store employees); May
Dep’t Stores, 314 A.2d at 771 nn.8 & 13 (construing a criminal statute to mean that “a
willful concealment would seem to involve necessarily a wrongful purpose such as to
defraud or convert to one’s own use” and that “[p]lacing items in a shopping bag, without
more, does not permit an inference of criminal intent”); State v. Hales, 122 S.E.2d 768, 773
(N.C. 1961) (stating that “willfully conceals” in a criminal statute means that the concealing
must indicate a purpose to do it without authority and in violation of the law); Carter, 694
S.E.2d at 594-95 (stating that “[w]here there is evidence that an individual has acted in a
manner that is inconsistent with that of a prospective purchaser, and has exercised immediate
dominion and control over the property,” there is sufficient possession to constitute larceny
in a self-service store). “The fact that [the customer] placed the goods in a shopping bag
provided no valid reason for the trial court to infer a criminal intent or a possession clearly
adverse to the interests of the store.” Durphy, 235 A.2d at 327.
{19} While the foregoing cases construe criminal statutes, we find them instructive
6
because the overarching purpose of the conditional merchant’s privilege in Section 30-16-23
is to give the merchant appropriate tools to combat the crime of shoplifting. On the one
hand, the customer has been given permission to pick up, handle, move, try on, replace, and
carry about merchandise within the store. On the other hand, the merchant has an
expectation that the customer will exercise this permission in a way that is not inconsistent
with paying for the merchandise. When the customer’s conduct in putting the merchandise
out of sight crosses the line between the permission granted and the merchant’s right to be
paid, the customer has “willfully concealed” merchandise consistent with the policies
recognized by the statute. We therefore hold that when merchandise is concealed in the
sense that it is not in plain sight, there must also be circumstances which reflect that the
purpose of the concealment is adverse to the store owner’s right to be paid for the
merchandise before a conclusion can be made that the merchandise was “willfully
concealed” under Section 30-16-23.
WHETHER THE STATUTORY PRESUMPTION APPLIES
{20} The district court also ruled that placing the mousse into the bag satisfied a statutory
presumption that Plaintiff intended to shoplift and that the statutory presumption applied to
a determination of whether Defendants have immunity. We disagree.
{21} We begin with the pertinent statutory provision, NMSA 1978, Section
30-16-20(A)(2) (2006), which defines the crime of shoplifting in the following language:
A. Shoplifting consists of one or more of the following acts:
....
(2) willfully concealing merchandise with the intention of
converting it without paying for it[.]
Thus, in such a case, the State must prove beyond a reasonable doubt a willful concealment
of merchandise “with the intention of converting it without paying for it[.]” Id.
{22} The best evidence to prove specific intent is a voluntary statement from a mentally
competent person that he acted with the intent set forth in the statute. See State v. Smile,
2009-NMCA-064, ¶ 68, 146 N.M. 525, 212 P.3d 413 (Vigil, J., concurring in part, dissenting
in part) (stating that the best evidence of intent is a defendant’s statement that he acted with
the requisite intent), cert. quashed, 2010-NMCERT-006, 148 N.M. 584, 241 P.3d 182.
However, such evidence is not usually available and proof of a specific intent must
ordinarily be proved circumstantially by inferences from the facts and circumstances of each
case. State v. Ortega, 79 N.M. 707, 708, 448 P.2d 813, 814 (Ct. App. 1968); People v.
Johnson, 192 N.E.2d 864, 866 (Ill. 1963).
{23} For shoplifting, the Legislature has established a factual presumption by which the
7
fact finder is allowed, but not required, to presume intent from proof of another fact. Section
30-16-22 is entitled “Presumptions created” and it provides:
Any person who willfully conceals merchandise on his person or on
the person of another or among his belongings or the belongings of another
or on or outside the premises of the store shall be prima facie presumed to
have concealed the merchandise with the intention of converting it without
paying for it. If any merchandise is found concealed upon any person or
among his belongings it shall be prima facie evidence of willful concealment.
{24} Thus, “prima facie evidence” of “willful concealment” may be found if merchandise
is found concealed upon a person or among his belongings, and a person who “willfully
conceals” merchandise may be “prima facie presumed” to have acted with the specific intent
of converting the merchandise without paying for it. Id. This is a presumption of fact, not
a presumption of law. See White v. Commonwealth, 636 S.E.2d 353, 357 (Va. 2006) (“Prima
facie evidence is ‘[e]vidence that will establish a fact or sustain a judgment unless
contradictory evidence is produced.’” (quoting Black’s Law Dictionary 598 (8th ed. 2004));
cf. Montoya v. Torres, 113 N.M. 105, 110, 823 P.2d 905, 910 (1991) (stating that a
presumption of undue influence is a presumption of fact, not a presumption of law). The
Committee Commentary to UJI 14-5061 NMRA makes a specific reference to Section 30-
16-22: “Some New Mexico statutes allow the jury to ‘presume’ certain facts from other
facts. For example, the intention of converting merchandise may be presumed from the fact
that the person concealed the merchandise.” New Mexico is not unique. Other states also
have statutes which provide that in a criminal prosecution the fact finder may, but is not
required to, presume specific intent exists when the accused conceals goods that are for sale.
See In re R.M.D., 829 P.2d 852, 854 n.3 (Colo. 1992) (en banc) (collecting cases).
{25} The question presented to us in this case is whether the statutory presumption
contained in Section 30-16-22 applies to the merchant’s privilege codified in Section 30-16-
23. For the reasons that follow, we conclude that the district court erred as a matter of law
in applying the statutory presumption in Section 30-16-22 to the merchant’s privilege set
forth in Section 30-16-23.
{26} The history behind the merchant’s privilege statutes such as Section 30-16-22 is set
forth in Alvarado v. City of Dodge City, 708 P.2d 174, 180-82 (Kan. 1985), and Gortarez ex
rel. Gortarez v. Smitty’s Super Valu, Inc., 680 P.2d 807, 811-13 (Ariz. 1984) (In Banc),
which we summarize herein. In the case of misdemeanors such as shoplifting, the merchant
did not have a common right privilege to arrest because there was no breach of the peace.
If a merchant saw a customer stealing merchandise, the merchant was only permitted to use
reasonable force to retake his goods. However, there was no room for a mistake, and if the
customer did not actually take goods, the merchant was subject to liability, even if his
mistake was reasonable. The common law adequately protected a merchant who had a small
shop and kept all his merchandise on shelves behind him or in a counter between him and
his customers because he could be certain in his mind when someone was stealing goods
8
displayed in this way. With the advent of modern stores, however, where merchandise is on
open shelves throughout the store and customers are allowed, and even expected, to handle
the goods before purchasing them, the merchant’s ability to protect his property from theft
became significantly untenable. The merchant was faced with the choice of allowing a
suspect to leave the store, risking the loss of the merchandise, or he took the risk of
undertaking to recover what he reasonably believed to be stolen merchandise, and facing
liability for a wrongful detention if it turned out he was wrong.
{27} As Alvarado explains, “[u]nder these circumstances, the common-law rule did not
work.” 708 P.2d at 18 (citation omitted). Some courts therefore adopted a rule permitting
a merchant for reasonable cause to detain a customer he believed was shoplifting. Id. The
Restatement (Second) of Torts § 120A (1965) agreed with this position. Entitled
“Temporary Detention For Investigation” the Restatement provision states:
One who reasonably believes that another has tortiously taken a chattel upon
his premises, or has failed to make due cash payment for a chattel purchased
or services rendered there, is privileged, without arresting the other, to detain
him on the premises for the time necessary for a reasonable investigation of
the facts.
Comment (a) states that this section is necessary to protect shopkeepers from the dilemma
of either permitting the suspected shoplifter to walk out or arrest him at the risk of liability
for false arrest if the theft is not proved. Comment (e) further explains that the privilege
protects the shopkeeper who has made a reasonable mistake regarding the guilt of the
suspect.
{28} In addition to the court decisions, many state legislatures responded by enacting
statutes modifying the common law rules. These statutes vary in form, but in general give
merchants, their employees, and agents a qualified right, based on probable cause or
reasonable grounds, to detain any person believed to have taken goods from the store without
paying for them, provided the detention is for a reasonable time, and is conducted in a
reasonable manner. New Mexico is one of these states, and Section 30-16-23 is such a
statute. Section 30-16-23 on its face grants a conditional privilege to a merchant to detain
a person based on probable cause, and by its terms, it expands upon the common law rights
given to a merchant under the common law.
{29} Thus, Sections 30-16-22 and 30-16-23 were enacted to accomplish different purposes
in different ways. Section 30-16-22 is a statute which simply allows the finder of fact in a
criminal prosecution of a Section 30-16-20(A)(2) shoplifting case to infer a specific intent
to convert merchandise without paying for it if a person “willfully conceals” merchandise
as described in the statute. On the other hand, Section 30-16-23 gives a merchant a
conditional privilege to detain a person when the merchant has probable cause to believe the
person has shoplifted or “willfully concealed merchandise.” The conditional privilege
expands the common law and does not require the merchant to be correct in his belief that
9
merchandise was actually taken, as long as the detention is supported by probable cause, and
the other conditions of the statute are satisfied.
{30} We note that if the factual presumption of Section 30-16-22 applied to the merchant’s
privilege contained in Section 30-16-23, the inclusion of the probable cause requirement
would be meaningless. We will not assume this is what the Legislature intended when the
express language in Section 30-16-23 calls for probable cause.
{31} In light of the foregoing discussion, we conclude that the factual presumption of
Section 30-16-22 does not apply to the merchant’s conditional privilege set forth in Section
30-16-23. Since the district court ruled otherwise in granting Defendants summary
judgment, we reverse.
CONCLUSION
{32} The order of the district court is reversed.
{33} IT IS SO ORDERED.
____________________________________
MICHAEL E. VIGIL, Judge
WE CONCUR:
____________________________________
JONATHAN B. SUTIN, Judge
____________________________________
LINDA M. VANZI, Judge
Topic Index for Holguin v. Sally Beauty Supply, Inc., No. 29,624
AE APPEAL AND ERROR
AE-SR Standard of Review
CP CIVIL PROCEDURE
CP-SJ Summary Judgment
CL CRIMINAL LAW
CL-SH Shoplifting
CA CRIMINAL PROCEDURE
10
CA-PA Probable Cause
TR TORTS
TR-AP Abuse of Process
TR-FI False Imprisonment
TR-IM Immunity
TR-MA Malicious Abuse of Process
TR-MP Malicious Prosecution
11