Theft by finding

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Theft by finding occurs when someone chances upon an object which seems abandoned and takes possession of the object but fails to take steps to establish whether the object is genuinely abandoned and not merely lost or unattended.[1] In some jurisdictions the crime is called "larceny by finding" or "stealing by finding".[2][3]

By nation[edit]

United States[edit]

In the United States, if the owner of a property has renounced all property rights in the object, then the property is abandoned.[1] Since theft is the unlawful taking of another person's property, an essential element of the actus reus of theft is absent.[2]

The finder of lost property acquires a possessory right by taking physical control of the property, but does not necessarily have ownership of the property. The finder must take reasonable steps to locate the owner.[1] If the finder shows that reasonable steps to find the owner have been taken then the finder may establish that the required mens rea for theft, the intention to deprive the owner permanently, is absent.[2]

An issue may arise when a person takes possession of lost property with the intention of returning it to the owner after inquiry but later converts the property to the finder's use. This is illustrated by Thompson v. Nixon [1965] 3 W.L.R. 501: an off duty police constable found a bag of rabbit food lying by the roadside, took it home intending to hand it in as lost property but some time after decided to keep it for his own use. He was found guilty at first instance but his ultimate appeal to the Divisional Court was upheld. The appellate court held that, at the time of finding, there was no mens rea to support a conviction of larceny.[4] In some jurisdictions this has been addressed by statute; see, for example, s. 124, Crimes Act 1900 (NSW) allowing a jury to reach an alternative verdict of "fraudulent appropriation".

Trash[edit]

In California v. Greenwood (1988), the United States Supreme Court ruled that trash left at curbside for collection is effectively abandoned and subject to taking by anyone.[5] This ruling superseded the California Supreme Court ruling, in People v. Krivda (1971), that placing trash at curbside was not necessarily an abandonment of same to the police or general public, as a reasonable assumption would be that only a particular regulated entity (i.e. the trash collection company or department) would take possession.[6]

Thus Garbology (the examination and analysis of trash) and Dumpster diving are legal in the United States. Consequently, the abandonment of private medical records by placing them in trash has resulted in civil penalties against companies doing so.[7][8]

Australia[edit]

In Victoria, the Victorian Crimes Act[9] defines this crime by exception "72.3(c) A person's appropriation of property belonging to another is not to be regarded as dishonest if he appropriates the property in the belief that the person to whom the property belongs cannot be discovered by taking reasonable steps.

In Queensland, there is a similar warning.[10]

References[edit]

  1. ^ a b c Tooher, Joycey (2008). "finding of property". In Peter Cane and Joanne Conaghan (ed.). The New Oxford Companion to Law (Oxford Reference Online. ed.). Oxford University Press Inc. ISBN 9780199290543. Retrieved 8 August 2011. CS1 maint: discouraged parameter (link)
  2. ^ a b c A. E. S. Tay (Jul 1964). "Bridges v. Hawkesworth and the Early History of Finding". The American Journal of Legal History. 8 (3): 224–237. JSTOR 844171.
  3. ^ "Larceny by Finding (reprinted from the Law Times (London))". The American Law Register. 7 (6): 381–383. Apr 1859. JSTOR 3302356.
  4. ^ T. Hadden (Nov 1965). "Larceny by Finding. How Not to Reform the Law". The Cambridge Law Journal. 23 (2): 173–175. doi:10.1017/s0008197300082635. JSTOR 4505022.
  5. ^ "California v. Greenwood, 486 U.S. 35 (1988)". Justia (from United States Reports. Retrieved April 18, 2021. CS1 maint: discouraged parameter (link)
  6. ^ "People v. Krivda". Justia. Retrieved April 18, 2021. CS1 maint: discouraged parameter (link)
  7. ^ Chelsea Conaboy (January 7, 2013). "Doctors, billing company pay $140,000 penalty for records tossed in public dump". Boston.com. Boston Globe. Retrieved April 18, 2021. CS1 maint: discouraged parameter (link)
  8. ^ Mark Morris (December 14, 2014). "Settlement reached in medical billing records case". Kansas City Star. Retrieved April 18, 2021. CS1 maint: discouraged parameter (link)
  9. ^ "Crimes Act (Victoria)" (PDF). Legislation Victoria. 6 Oct 2020. Retrieved 6 Oct 2020.
  10. ^ "Lost, found and stolen property". Queensland Government. 6 Oct 2020. Retrieved 6 Oct 2020. If you find goods or money, you can’t keep them. In fact, police can charge you for keeping goods or money you’ve found that you don’t hand in.