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Unclear on the Concept - Common Misconceptions
When a theft is reported to the police, a partnership develops between the victim and the investigating officer. Together, they will attempt to identify and prosecute the perpetrator and recover the victim’s property. This works best when there is a realistic expectation of what the police can and cannot do.
Although someone has treated you in a shabby, unethical, despicable, rude, and unfair manner, doesn’t mean it’s a crime. The police often empathize with a distraught victim who has been conned and manipulated. Although the victim may convincingly portray the suspect as the incarnation of evil, there must be a violation of criminal law for the police to take action.
The statute of limitations for recovery of art is not the same as for prosecuting the thief.
When a grand theft or burglary occurs, the police must usually identify the perpetrator and file charges within 3-4 years. There are some exceptions. If a suspect has been identified but not located, the issuance of an arrest warrant will stop the clock. Thieves can sometimes be arrested many years later for the alternate crime of receiving stolen property if they still possess part of the loot or can be shown to have concealed, sold, or withheld the stolen property.
Stolen art, however, can be recovered long after the crime – even if decades have passed, the victim is deceased, or there has been an insurance payout. A thief cannot transfer lawful title to a stolen artwork. There is a statute of limitations for recovery of art, but it is only triggered when the stolen art is finally located. In California, there is a special accrual rule that applies to the recovery of art or historical objects (Civil Procedures Code 338c). It basically states that once the victim, an agent for the victim, or the law enforcement agency responsible for investigating the theft learns of the whereabouts of a stolen article, they have three years to take action to recover the property. Although the law went into effect in 1983, case law has deemed the rule applicable to thefts occurring before that date.
The police department is not a debt collection agency.
Debtor prisons no longer exist. There are well-established civil remedies for handling late payments, unpaid loans, and overdue returns of property. The police investigate violations of criminal law, normally punishable by jail or state prison. From time to time, detectives receive phone calls from people who feel they have been wronged, but do not want to prosecute. They only want the detective to intimidate a debtor to pay money owed or to return property. Mediation, arbitration, or civil litigation is the best course of action in these cases.
The police cannot conduct fishing expeditions.
People often believe that if they can articulate a logical conclusion or strong suspicion of wrongdoing, the police can conduct searches, detentions, and interrogations. Unlike characters in TV crime dramas, real police are regulated by stringent rules and procedures. Judges do not issue warrants based on hunches and suspicion. Theft investigations are normally initiated only after a victim has come forward with a complaint and there is prima facie evidence of a crime.
Just because you decide to drop the charge, doesn’t mean it will be.
Sometimes a victim files a crime report to force an accommodation out of a miscreant. The detective may be unaware that behind the scenes, the victim is trying to cut a deal with the suspect in exchange for dropping the charges. However, the victim does not control this process. All is not forgiven simply because a thief hastily returns the stolen property or pays restitution. This neither excuses nor negates the original criminal act. If a crime can be proven, the case will be submitted for prosecution. The victim will be forced to testify like any other witness, despite any quid pro quo arrangement they may have made with the suspect. The reason for this is simple. Allowing thieves to buy their way out of culpability for criminal acts undermines our system of justice and encourages recidivism. When cornered, criminals often try to make a deal to avoid jail. This simply allows them to cut their losses in order to steal again when they find a new victim.
By filing a police report, a victim affirms that a crime has been committed and agrees to cooperate in any subsequent investigation and prosecution. Some victims file crime reports merely because the insurance company requires one before they will process a claim. The victim may know that the thief is most likely a family member or someone else they have no desire to prosecute. If this is the case, the victim should communicate this to the detective so that scarce investigative resources can be better utilized on other cases.
The police department is not a panacea for reckless business practices and lack of common sense.
Some victims exhibit such carelessness in the handling of their property that it is difficult to garner sympathy for their plight. Picture how a judge or jury would view the actions of these victims:
▪ The victim who suspected he had been swindled after consigning art to a dealer and having no further contact with him for 10 years.
▪ The older woman living alone who kept reporting thefts of art by a string of young men she invited home. She only knew them by their first names.
▪ The roommate of a celebrity who reported a theft of art after turning the house into a crash pad for Hollywood transients.
▪ The collector who made payments on the purchase of 36 artworks worth $50,000 – allowing the dealer to keep possession of every piece until the full amount was paid. After receiving $40,000 over a period of years, the dealer disappeared with the money and the art. The collector had no idea which artworks were missing since he let the dealer maintain the only list of the artworks purchased.
▪ The auction house safe missing $100,000 in valuables. The combination was kept in an unlocked drawer nearby.
▪ The landlord who discovered art missing after renting units on this property to a group of parolees and drug users.
▪ The collector who had a rare $190,000 comic book stolen after mounting it in a sturdy metal and plexiglass wall display and then leaving the key in the lock as hundreds of guests arrived for a party.
The crime should be reported to the jurisdiction where the crime occurred.
Although this may appear self-evident, many victims try to report crimes based solely on where they or the suspect live or where the business transaction originally took place or property changed hands. This can become more confusing when a theft occurs as a result of a consignment, an internet auction, or when property disappears while in transit. As a general rule, the crime location will be determined by where a suspect’s intent to permanently deprive the victim of property can be established in addition to taking the item. Some examples:
A gallery in Palm Springs consigns a painting to a dealer in L.A. The dealer picks up the painting and is supposed to return it in six months if unsold. When the date arrives, the dealer has disappeared with the painting and will not respond to repeated attempts to contact him. The crime occurred in L.A. because no intent to steal could be shown until the dealer disappeared with the painting.
However, let’s say the L.A. dealer gave fictitious identification information on the consignment agreement when he picked up the painting. Even though he took the painting to L.A., we can conclude that the dealer had the intent to steal the painting when he picked it up in Palm Springs.
Detectives will determine what strategy and tactics to use to investigate the crime. Victims occasionally try to influence how a criminal investigation will be conducted. Some are so intent on retribution that they have compiled a "To Do" list for the detective and will often call, expecting to be briefed on what the detective has learned. At the other extreme, a victim may sometimes try to limit the actions of the police when a possible suspect is well-known to a victim who fears repercussions, liability, or embarrassment when officers contact the person. A victim, expecting the investigation will simply lead to a court hearing, may be surprised when the suspect is jailed and their home searched. The victim may even try to withhold information, hoping to put a different slant on the facts or seeking to avoid getting someone involved that they believe is innocent.
However, based on experience and training, the detective will select a course of action that will not only solve the case and recover property but also provide a framework for a successful criminal prosecution. The detective knows the elements in the law that must be proven as well as the local filing policy of prosecutors. Victims are often unaware of how difficult and demanding the investigative process can be or what evidence is admissible in court. Strategy, tactics and timing are different from case to case.
It is the detective’s job to make it happen - it is the victim’s job to provide support and see it through.
Any deception on the part of a victim can jeopardize the entire case. Investigations are independent and confidential, so victims are not entitled to briefings on what the detective has learned. However, victims are always encouraged to share theories, suggestions, and information that may aid the investigation.
What was taken, the money or the art?
Victims occasionally locate artwork they consigned to a thief who absconded with it. It may now be for sale in a gallery or auction house and the victim wants the police to seize it and return it to them. Whether the art can be seized or not depends upon who has legal title. If a theft can be proven and the thief has, in turn, consigned the art for sale, then title has not passed and the artwork still belongs to the original owner.
However, if the thief, acting as the authorized agent of the owner, sold the artwork for the amount specified by the victim, and merely kept the money, then title has passed to the buyer. The object of the theft is no longer the artwork. It is now the money that should have been held in trust for the victim.
Should the matter be pursued in criminal or civil court?
There is nothing to preclude a victim from doing both. However, it may be expensive and redundant to initiate a civil action while a criminal case is pending. Some victims initiate civil litigation unaware that a crime was committed. Other victims knowingly pursue a civil remedy due to perceived tactical advantages.
The benefits of pursuing a theft or fraud as a crime are many. The victim will not have to hire a private investigator or attorney. These functions will be done at taxpayers’ expense through the police department and prosecutors. Faced with the prospect of jail, many defendants plea bargain. Court ordered restitution is collected by the Probation or Parole Department. A defendant cannot avoid payment by declaring bankruptcy. One major disadvantage, however, is the high degree of proof required. To obtain a criminal conviction, a jury must unanimously agree that the defendant is guilty beyond a reasonable doubt.
Still, many victims prefer to handle the matter in civil court where the burden of proof is far less, requiring only a preponderance of evidence to obtain a judgment. Concerns about publicity and the desire to better control the process induces many businesses to use their own attorneys to obtain a settlement.
If a defendant is found not guilty in criminal court, a victim may choose to initiate a civil action as an alternative.