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Playground Justice and the Appeal of Simple Solutions

Attorneys Marc Lopez and Matt Kroes recently discussed the idea of lost property and whether finders keepers represents a legitimate defense to criminal charges. What follows is a lightly edited transcript of their conversation.

Marc Lopez
There’s no other way to say it—Indiana has officially adopted the playground rule of finders keepers, losers weepers.

Matt Kroes
Wait—are you serious? That can’t be right.

Marc Lopez
In a November 12th, 2020 decision, the Indiana Court of Appeals said, “the taking of money that was lost or mislaid is not a crime” and this presumably applies to property in addition to money.

Matt Kroes
Wait—this wasn’t a law already then?

Marc Lopez
It’s really unclear. In this particular case, a man went to the grocery store and paid $100 for some items at the self checkout line and he left $83 in change in the checkout machine. 

An off-duty grocery employee used the machine after him and made his own purchase. Then he looked in the change receptacle and grabbed the $83 and stuck it in his pocket. 

So the first guy comes back to the store a couple hours later and he’s like, “Hey, I left $83 here. I want my change.” The grocery store goes Vegas and pulls the security footage and they see the man who took the $83. They recognize him as an off-duty employee, so the store gives the customer $83 back and then calls the police. 

The Wayne County Prosecutor then files theft charges against the employee. His attorney goes to trial, and the judge finds him guilty, and then a couple of months later the Indiana Court of Appeals says it’s not a crime to take lost or mislaid property. They’ve truly affirmed the school yard maxim of finders keepers, losers weepers.

Matt Kroes
Hold on. So let me get this straight: If I’m at home on the weekend with my daughter and we’re playing all day long, and I leave her tricycle out in the road overnight because I’m just too exhausted by the time I put her to bed, and someone comes and takes it—what the heck is that? What’s that about?

Marc Lopez
I don’t know what it’s about, but I know for certain it’s not a crime.

Matt Kroes
What?! So if I’m walking down the road and I have a $20 bill fall out of my pocket, and the person behind me literally just picks it up instantly—that’s not a crime?

Marc Lopez
It’s their lucky day, because guess what? That’s not a crime.

Matt Kroes
What?! So what if I leave my car in a gas station parking lot with the keys in it, run inside to grab something—nobody else is in my car, it’s just me—run inside, grab something, someone takes my car. Is that a crime?

Marc Lopez
Well, there’s still an auto theft statute that’s separate and distinct from the Indiana theft statute, so that’s likely still a crime. But this finder’s keepers decision gives us an extra argument that maybe it’s not a crime.

Matt Kroes
Lopez, let me ask you this. You have a tendency to leave a lot of things around the office—Girl Scout cookies, other little candies and trinkets—if I just start taking things that are left around the office, I’m good, right?

Marc Lopez
First of all, you and Benitez need to stop eating my leftovers. I clearly mark them with my initials in the refrigerator, so stop taking my stuff. But no, it’s not a crime.

Matt Kroes
So if finding and taking lost property is not a crime, is it just a free-for-all in Indiana now? What’s going on?

Marc Lopez
It’s not a free-for-all, but just because something isn’t a crime doesn’t mean that it’s 100 percent legal. If somebody takes your property, you can still go after them with a civil lawsuit, but we all know that lawsuits take time. The case law seems to be pretty clear, though—taking lost property is not a crime.

Matt Kroes
Man, that’s crazy. If you or anyone has any questions at all regarding criminal law, give us a call at the Marc Lopez Law Firm at 317-632-3642 and remember—

Marc Lopez & Matt Kroes
Always plead the 5th!