Legal Matters: Might a clerk taking an item to customer service be exerting ‘unauthorized control’ over a shopper’s property?

Maryland law provides penalties for customers who steal merchandise from store owners. But what about merchants who steal personal belongings from customers?

A woman walks into a clothing store. She selects several pairs of pants to try on, chooses one she wants and walks out into the clothing sales area to find a top — leaving her coat in the dressing room.


When the woman returns to the dressing room, the door is locked and another woman’s voice announces, “I’m in here.” The shopper asks for her coat, and is told, “There’s no coat in here.”

The shopper fears her coat has been stolen. The coat is valued at approximately $100 and contained the shopper’s car keys. The shopper goes to a checkout desk to inquire if anyone has turned in a coat.

“We cleaned out the dressing room and took it to customer service,” a clerk replies.

Were the clerks who took the coat committing theft?

Under the Maryland Criminal Code, a person “may not willfully or knowingly obtain or exert unauthorized control over property, if the person: (1) intends to deprive the owner of the property; (2) uses, conceals or abandons the property in a way that deprives or is likely to deprive the owner of the property.”

If the clerks who took the coat were acting under their employer’s orders, could the employer be held responsible for theft?

A prosecutor could argue that the employer intended to deprive the owner of her property by directing the clerks to remove coats and any other items without the customer’s knowledge, and that the clerks concealed the items by failing to post a notice stating where personal property they removed could be reclaimed.

The defendants’ lawyer could counter-argue that the clerks were simply following orders and that customer service personnel returned the coat.

An Internet search failed to reveal any Maryland cases in which employers ordered their employees to steal items. But in a South Carolina Supreme Court case where a municipal official fired a permits worker for issuing a stop work order on a construction project that the official had approved without the required building permit, the court ruled that the boss’s action violated public policy and the municipal government was liable.

The South Carolina ruling suggests that store management might be held liable for ordering its clerks to remove items of personal property and failing to notify owners how to reclaim the items. In Maryland, if the clerks or managers were convicted of theft of items with a value of at least $100 but less than $1,500, they would be guilty of a misdemeanor and could be imprisoned for up to six months and/or fined up to $500.

In addition to fines and a possible jail term, the law would require the store to restore the property that had been taken to the owner or to pay the owner its value.

Donna Engle is a retired Westminster attorney. Her Legal Matters column, which provides legal information but not legal advice, appears on the second and fourth Sunday each month in Life & Times. Email her at denglelaw@gmail.com.