Stolen Property and Organized Retail Theft Defense

Trafficking in stolen property

Under A.R.S. § 13-2307, trafficking comes in two degrees:

• Second degree: you recklessly traffic in property of another that has been stolen. The state does not have to prove you knew for certain the property was stolen, but it must prove you were reckless about that risk.
• First degree: you knowingly initiate, organize, plan, finance, direct, manage or supervise both the theft and the trafficking of property of another that has been stolen.

Two definitions in A.R.S. § 13-2301 shape these charges. "Stolen property" is property of another that has been the subject of any unlawful taking. To "traffic" means to sell, transfer, distribute or otherwise dispose of stolen property to another person, or to buy, receive, possess or obtain control of it with the intent to sell or otherwise dispose of it to another person.

Permissible inferences

Under A.R.S. § 13-2305, certain facts may give rise to an inference that you were aware of the risk the property was stolen, unless those facts are satisfactorily explained:

• You possessed property that was recently stolen. This can also support an inference that you took part in the theft.
• You bought or sold the property at a price substantially below its fair market value.
• You are a dealer in property and bought or sold it out of the regular course of business, or without the usual signs of ownership other than mere possession.

Organized retail theft

Under A.R.S. § 13-1819, you commit organized retail theft if, acting alone or with someone else, you either:

• Remove merchandise from a retail establishment without paying the purchase price, with the intent to resell or trade it for money or other value; or
• Use an artifice, instrument, container, device or other article to facilitate removing merchandise from a retail establishment without paying the purchase price.

Despite the name, the statute does not require a group. One person can be charged.

How this differs from ordinary theft

Theft under A.R.S. § 13-1802 includes controlling property of another while knowing or having reason to know it was stolen. Theft is classified by value. Trafficking and organized retail theft are not: their classes are set by statute no matter what the property was worth. For more on value based theft charges, see our theft and shoplifting page.

For a first felony offense that is not a dangerous offense, A.R.S. § 13-702(D) sets these prison ranges:

The presumptive term is the starting point. The same table also sets shorter mitigated and longer aggravated terms, which depend on circumstances the court finds.

Prison is not the only possible outcome. If you are eligible for probation, A.R.S. § 13-901 allows the court to suspend the sentence and place you on probation. Neither § 13-2307 nor § 13-1819 contains its own bar on probation.

Prior felony convictions raise the stakes. A.R.S. § 13-703 sets separate, higher ranges for repetitive offenders, including people with a historical prior felony conviction. Our felony defense page has more on how felony cases move forward.

What you knew. Second degree trafficking requires recklessness, and first degree requires knowing conduct. The inferences in § 13-2305 apply only when the facts are not satisfactorily explained. Receipts, messages with a seller, the seller's identity and the circumstances of a purchase can explain a situation that looks bad at first.

Whether there was trafficking at all. To traffic, you must have sold or passed property to another person, or acquired it with the intent to do so. If the evidence shows only that you had an item, the state may lack proof of that element, although it may look at a theft charge instead.

Whether the property was stolen, and from whom. The state must prove the items were property of another that was unlawfully taken. Common merchandise without serial numbers or store tags can be hard to tie to a specific theft. We look closely at how the store or owner identified each item.

The paper trail. Pawn tickets, marketplace listings, payment app records, store video and loss prevention reports often drive these cases. We review what each record actually shows and what is missing.

Intent to resell and the use of a device. For organized retail theft under § 13-1819(A)(1), the state must prove you intended to resell or trade the merchandise. Under § 13-1819(A)(2), it must prove an item was used to facilitate removing merchandise without paying. If those elements are weak, a different charge may fit the facts better.

Who actually acted. Many of these cases involve several people. Being present or living where property was found does not by itself prove that you trafficked anything. First degree trafficking requires proof that you knowingly played an organizing, financing or supervising role in both the theft and the trafficking.