Theft of Lost or Mislaid Property

Theft of lost property: not a criminal offense

by Sami Azhari on February 9, 2011

Most people who are accused of theft suffer through feelings of anxiety and fear about the outcome of their case. For defendants charged with misdemeanor offenses, they are looking at a penalty of up to one year in jail and a fine of $2,500.

But most of these people are not aware that the offense of theft is not a crime where the property was lost or mislaid. It is a defense to theft charges that the property was lost.

The statute for theft is 720 ILCS 5/16-1. Generally, a person is guilty of theft where he knowingly obtains or exerts unauthorized control over property of the owner. See 720 ILCS 5/16-1(a)(1). The act constitutes a crime because it was not authorized.

For sentencing purposes, theft is categorized in two ways:

  1. Theft not from the person; and
  2. Theft from the person.

The distinction between the two types of theft is that theft directly from a person is punished more severely. For example, taking money belonging to another from that person’s desk drawer is theft not from the person. The penalty for this offense would be less than if the money was taken directly from the person.

Theft of $500 or less that is not from the person is a Class A misdemeanor offense. The possible sentence is up to one year imprisonment and a fine of $2,500.

If the value is greater than $500, of if the offense took place from the person, then the crime is a felony, which can be punished by one year of more incarceration in the Illinois Department of Corrections.

But a little known provision of law says that if the property was lost or mislaid by the owner, any theft that takes place is only a petty offense.

720 ILCS 5/16-2 provides that theft of lost or mislaid property can be punished by fine only. If found guilty of this crime, the defendant cannot be incarcerated.

Basically, the law imposes a duty on someone who comes upon lost property to notify the owner that he found it.

The statute reads as follows:

A person who obtains control over lost or mislaid property commits theft when he:

  1. Knows or learns the identity of the owner or knows, or is aware of, or learns of a reasonable method of identifying the owner, and
  2. Fails to take reasonable measures to restore the property to the owner, and
  3. Intends to deprive the owner permanently of the use or benefit of the property.

See 720 ILCS 5/16-2.

Property is lost where the owner has no knowledge of its location or the fact that it is lost. By comparison, property is considered mislaid where the only remembers placing it somewhere but cannot remember where. These terms come from property common law.

In any case where allegations of theft are made, counsel should examine the facts to determine whether an argument can be made that it was lost or mislaid property.

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