Minnesota Lawyer
Aluminum foil has a lot of innocuous uses. But in Taquinia Kokela Douglas v. State of Minnesota, the Minnesota Supreme Court ruled that shoplifters using aluminum foil to defeat security sensors can be prosecuted under Minnesota’s possession of shoplifting gear statute.
Douglas was shopping at Buckle, a clothing store, when employees suspected that she was shoplifting after she went into a dressing room with jeans and came out without them. They called police, who detained Douglas and searched her possessions. Upon searching her, police found several pieces of aluminum foil in Douglas’ possession. Some of those pieces were wrapped around security devices on unpurchased merchandise that Douglas had stolen from a nearby Victoria’s Secret as well as Buckle.
It is fairly common for shoplifters to use aluminum foil to try to defeat alarms. The aluminum foil is used as a barrier to prevent sensors from detecting security devices attached to merchandise. When shoplifters avoid alarms, they can escape with the stolen goods.
Douglas was charged with possessing a shoplifting device. A jury found Douglas guilty. There was no direct appeal of the conviction. However, Douglas filed a postconviction petition, arguing that the state’s evidence was insufficient to support her conviction. Specifically, Douglas argued that she was in possession of a common household item which is not manufactured for the purpose of aiding in shoplifting. The district court denied Douglas’ petition, and the Court of Appeals affirmed.
The question before the court was whether aluminum foil is an “instrument designed to assist in shoplifting or defeating an electronic article surveillance system” as is described by Minn. Stat. § 609.521(b)(2022). Specifically, the parties disputed what the term “design” meant in this case.
“She didn’t design the tinfoil—she merely used it,” argued John Donovan, assistant state public defender, who represented Douglas. “The items at issue in this case were pieces of tinfoil. It was not a tinfoil-lined purse. It was not a coat with a secret pocket. And it was not some carefully prepared, specially molded theft device. They were pieces of tinfoil from a ball of tinfoil and they were used the way we all use tinfoil: it was wrapped around what was to be covered.”
However, the statutory language did not foil the court’s understanding of the law. Citing a previous decision, which tapped Webster’s Third New International Dictionary of the English Language Unabridged, the court concluded that “design” meant “to plan or produce with special intentional adaptation to a specific end.”
Adam E. Petras, assistant Hennepin County attorney, represented the state. “The aluminum foil in this case was intentionally adapted. It was wrapped or molded around the anti-theft sensors,” Petras said. “The specific end of this adaptation was to evade the EAS system and the towers and to shoplift. Those wrapped, anti-theft sensors were attached to merchandise that had not been purchased.”
Donovan also argued that the aluminum foil was not intended to be used for shoplifting. “Ordinarily, the manufacturer’s intent isn’t relevant to the offense, given the statute punishes possession of the gear and not its creation,” Donovan explained. “Consideration of the item’s design necessarily requires consideration of the item itself. And thus, the manufacturer’s intent is relevant when determining the design of an unaltered household item.”
“Reynold’s Wrap doesn’t create tinfoil for shoplifting. They create it for kitchen-related purposes,” Donovan insisted.
The court was not persuaded. “The fact that the aluminum foil itself is designed by manufacturers for kitchen and industrial purposes is not determinative,” the court concluded. “Unlike a vast number of other commercial products available for sale (like a snowmobile, for example), the use of aluminum foil therefore by necessity involves the design of coverings or other instruments made from that foil as the raw material for the new object,” the court wrote.
Additionally, the court disagreed with Donovan that the foil was unaltered, as the foil had been torn and folded to fit around the sensors. It was not as if Douglas had an unopened box of aluminum foil in her purse.
“Whoever designed these wrappings—they made something new. They made something new and different from aluminum foil on a roll that Reynold’s Wrap manufacturers or that any of us can buy,” Petras said.
“Because the State proved that Douglas possessed aluminum-foil wrappings that were designed to thwart an in-store electronic article surveillance system and that Douglas intended to use them to shoplift, we conclude that the evidence at trial was sufficient to support her conviction,” the court concluded.
