Month: March 2018

Photo, Close Enough to Identify CVS Clerk Selling Alcohol to Minor

Yesterday, you smiled for “Candid Camera.” Today, you smile for a selfie.

In any generation, however, you really don’t smile for a police officer who is taking your picture. That was the case for a CVS clerk caught selling alcohol to a minor in Department of Alcoholic Beverage Control v. Alcoholic Beverage Control Appeals Board.

Police had sent the teenager into the store as a decoy, then asked the clerk and the boy — beer in hand — to pose for a photo. That was good enough for identification, said California’s Third District Court of Appeal.

Photo Op

The clerk, working at a CVS store in South Lake Tahoe, was probably busy on May 2, 2015. When young Christian took a can of beer to the register, the clerk asked him for proof of birth date.

He said he was born on Nov. 27, 1996, which made him 18 years old at the time. The clerk — apparently not hired for accounting — sold him the beer.

Christian went outside and told the police officer, who had used him as a decoy. They went inside; the boy pointed out the clerk; and the officer told the clerk she had sold alcohol to a minor.

The clerk “freaked out” and apologized, then the officer asked her and Christian to pose for a photo. That led to administrative action against CVS; it could also have been contributing to the delinquency of a minor for the clerk.

Administrative Action

CVS appealed the suspension of its liquor license, arguing that administrative procedure required a face-to-face identification of the clerk. The minor had merely pointed her out from 10 feet away, CVS argued.

The Third District noted that the Supreme Court upheld the use of minors as decoys in Provigo Corp. v. Alcoholic Beverage Control Appeals Board. And the CVS clerk and the minor were in “reasonable proximity” when the teenager pointed her out.

“The clerk in these circumstances certainly knew or reasonably ought to have known that she was being identified,” the appeals court said.

Not to mention, she posed for a “sober” photo with him.

‘Booster Bag’ Not a Burglary Tool, Court Rules

When a shoplifter stoops to stealing clothes, you gotta feel a little sorry for him or her.

And when he falls to the ground convulsing, it’s almost a tragedy. But when it turns out he used a special bag to get the merchandise through electronic sensors, that’s a different story.

And so a jury convicted the California man of burglary, grand theft, and possessing burglary tools. The Second District Court of Appeal reversed the “tools” conviction, but compassion had nothing to do with it.

Burglary Tools

Penal Code Section 446 includes items used to gain access into property, but some courts disagree whether that applies to tools used after a would-be criminal gets inside a property. The state Supreme Court is considering the question in In re H.W.

In the meantime, Linda — a transgender man who goes by the name James — strolled into a Macy’s department store, put a stack of jeans into a bag and walked out. A security guard witnessed the theft, and chased him down.

Shaw resisted, fell to the ground and started convulsing. Security took the bag, which had 11 pairs of True Religion jeans inside a secondary bag lined with foil.

At trial, the guard testified that the foil-lined bag — called a “booster bag” — was used to trick electronic sensors. Shaw was convicted of all charges and placed on probation for two years.

Booster Bag

In People v. Linda Shaw, the defendant argued that the booster bag was not a tool under the statute. The Second District agreed.

The appeals court disagreed with the Third District decision in H.W., which said a pair of pliers used to cut security tags off a pair of jeans was a burglary tool. Instead, the justices followed People v. Diaz.

“We find the reasoning of Diaz to be more persuasive, and we agree with its holding that an ‘instrument or tool’ under section 466 is an item intended for use ‘to break into or gain access to property,’ not just intended for ‘use during the course of a burglary,” the panel said.