## Facts

- Patricia Holguin entered a Sally Beauty store carrying a large, conspicuous reusable canvas shopping tote.
- The store had no posted signs prohibiting personal tote bags, and Holguin was not told such bags were prohibited.
- Holguin picked up a can of hair mousse and placed it in her tote while walking toward the front counter to ask the cashier a question.
- Assistant manager Amanda Estrada confronted Holguin, demanded to know what was in the bag, and asserted that placing the mousse in the tote constituted shoplifting.
- Police were called; after Holguin refused to sign a no-trespass card, she was arrested and charged with shoplifting and other offenses.
- Holguin sued Sally Beauty and Estrada for tort damages, including false imprisonment and related claims arising from her detention and arrest.
- Defendants asserted statutory immunity under New Mexico’s shopkeeper’s privilege statutes, arguing they had probable cause based on alleged “willful concealment” and a statutory presumption of intent to shoplift.

## Issues

1. Whether placing store merchandise into a reusable personal tote bag, without more, constitutes “willful concealment” under New Mexico shoplifting law.
2. Whether the criminal statutory presumption of intent to shoplift applies to establish probable cause for a merchant’s civil shopkeeper’s privilege and immunity.
3. Whether summary judgment was proper on the ground that the merchant had probable cause as a matter of law to detain Holguin.

## Decision

- The Court of Appeals reversed the grant of summary judgment for Sally Beauty and Estrada and remanded.
- The court held that placing merchandise into a reusable personal tote, by itself, is not “willful concealment” as a matter of law.
- The court held that the criminal statutory presumption of intent to shoplift does not automatically apply to determine probable cause for the civil conditional privilege to detain.
- The court concluded that disputed facts bearing on concealment and probable cause made summary judgment on statutory immunity improper.

## Legal Principles

- A merchant’s shopkeeper’s privilege is a conditional privilege: detention immunity depends on probable cause to believe the customer shoplifted and on a reasonable detention in time and manner.
- “Willful concealment” is not established categorically by a customer’s use of a conspicuous, reusable personal tote; the determination depends on the totality of circumstances.
- Statutory presumptions crafted for criminal shoplifting prosecutions do not automatically control the probable-cause inquiry for civil immunity under the shopkeeper’s privilege.
- When evidence permits competing inferences about concealment and probable cause, those matters generally present fact questions that preclude summary judgment on immunity.

## Conclusion

The court allowed Holguin’s tort claims to proceed because using a reusable tote to carry merchandise toward the checkout did not conclusively show willful concealment, and the criminal presumption of intent could not be used mechanically to confer shopkeeper immunity as a matter of law.


Holguin v. Sally Beauty Supply Inc., 264 P.3d 732 (N.M. Ct. App. 2011)