18 July 2018

Mislaid / Lost Property: Stealing Something "Left Behind"

Every prosecutor has run across this situation: Lady goes to store. At checkout, she takes her pocket book out and lays it down on the counter whiles she writes a check or gets her cash or debit card out. Lady then walks away and leaves the pocket book behind. Person 2 then grabs the pocket book and walks out of the store.

Unfortunately, this scenario (with infinite minor variations) happens all too often and people get mightily confused as to whether a larceny has occurred. 

It has.

An analysis of this situation initially requires an answer to the question: is the property abandoned, lost, or mislaid? Abandoned property obviously cannot be stolen. By the very nature of abandonment, the prior owner has forsaken all claims to the property. However, if  (a) the property's owner is identifiable, and  (b) it is lost or mislaid, then under Virginia common law the person who takes it has committed a criminal act (larceny).

Just so we all know, lost property is the accidental placing of a property in a location where the owner does not know its location (wallet falls out of owner's pocket) while mislaid property is the purposeful placing of an item in a location and accidental leaving of it (wallet put down on store counter). At common law this seemed to have some determination as to whether an item was stolen because personalty mislaid was deemed to be recoverable by its owner. However, the distinction between lost and mislaid does not seem to be present in modern jurisprudence. See e.g. State v. Moore, 46 N.C.App. 259 (1980).

Virginia seems to have rejected this difference in Tanner v. Commonwealth, 55 Va. 635 (1857). In this case, the Virginia Supreme Court shifts the test from "mislaid or lost" to "is the owner identifiable?"

In Tanner, the Court sets out a general common law rule that "lost property may be the subject of larceny; and that if a taking and fraudulent intent coexist with a knowledge of the owner, the crime is complete." Tanner's counsel argues that this rule is wrong and only mislaid property can be stolen. However, the Court rejects this stating:
[W]here goods are actually lost by the owner, his property is not divested; and such property draws to it the constructive possession. If in such case the original taking was felonious, with intent to take entire dominion over them at the time, and the finder at the time of taking either know the owner, or from the place where the property is found, or evidence of his previous acquaintance with the ownership of it, or the nature of the marks on it, have the means of ascertaining the owner, or have reason to believe he can be found, the taking under such circumstances with such intent and knowledge is tortious. Such possession being tortious, the taking by which it was acquired is not a lawful taking, and therefore trespass may be maintained by the owner against the taker.
 "Trespass", for those of you not up on old legal speak, is what larceny is - trespass upon the property rights of another's personalty. Et voilĂ , taking lost property with an identifiable owner is larceny. The analysis of the case then turned upon whether the property found had an identifiable owner. The Court determines that it did not and overturns the conviction.

In most modern cases, lost wallets, purses, pocket books, etc. will have a driver's license and or other identification in them and therefore the taking of these items will clearly qualify as larceny. However, if you find that $500 bill blowing across a parking lot or a generic gold ring while out with your metal detector at the park you haven't committed any crime because there is no identification present.

Tanner v. Com., 55 Va. 635, 636 (1857)
lost property may be the subject of larceny; and that if a taking and fraudulent intent coexist with a knowledge of the owner, the crime is complete.

Tanner v. Com., 55 Va. 635, 636 (1857)

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