A few questions about shoplifting

Factual Questions
1

Yesterday I was accused of shoplifting. I wasn’t paying attention and walked out of an office supply store while still holding an expensive package of pens. The store treated it very seriously. One security guard apprehended me as another blocked the exit, they then escorted me to a back-room where my person and backpack were thoroughly searched, after the surveillance tapes were reviewed so as to examine all of my actions in the store. It was terribly embarrassing, and none too scary, for me.

When they concluded that it was just a stupid mistake on my part the manager was very apologetic and even gave me a coupon for a 10% discount off my next purchase. He explained that they have had some trouble with shoplifters recently and considering that I am young and was carrying a backpack, they thought me very suspicious.

I would like to know what my rights are if I am accused of shoplifting. Do they have the right to grab me and take me to a back-room where they search all of my belongings? Can I refuse and just leave and under what circumstances?

Also, the manager explained to me that many people where lining backpacks and other pouches with aluminum foil to thwart the security tags. I found this very shocking! Is it really true that those foil stickers and other measures are so easily overcome? What about those larger devices I have seen, the round grey plastic contraptions with a blinking led, speaker and cords that run through them and tightly wrap around the item. They appear very expensive, are these also so weak that someone could just stick it in an aluminum bag and walk away? What are the different types of security tags and how do they work? I always assumed that they were not passive devices, but actively broadcasted where they were and could easily penetrate something as flimsy as a pouch of foil. How are they able to stop thieves when their security measures are seemingly so weak? Are their other tags that are not so easily overcome?

2

Grabbing a totally innocent person and taking them to the back room might make htem vulnerable to a lawsuit later. However if someone attempts to carry an item that they didn’t pay for past the door, then they have just grounds for suspicion. I believe, though it may have changed since my time in retail and it may vary among different states, that the accused can refuse to be searched by any store employee. In such a case, the store would have to call the Police and a police officer would so the search.

3

I have a question. Did they block your exit, and say “I am afraid I will have to ask you to come with me, sir”, or did they grab your arm and drag you back, or a little of both? Clarification would be helpfull.

You see, those hobos really knew what they were doing when they made those hats!

4

I am not your lawyer, I am not a lawyer, and I am not licensed in your jurisdiction.

Now,

Basically they are covered under something called Merchant’s Privilige (http://oldweb.uwp.edu/academic/criminal.justice/merchant.htm ) that gives them certain rights to take reasonable steps towards protecting their property. However, it seems that they are on very thin ice if you did not indeed take their property. For example, if you calmly walk out of the store but refuse to show your bag to the attendant out front on privacy grounds, and the attendant/loss prevention tries to detain you physically it could be assault. If you have in fact stolen something, they are most likely protected from criminal and civil action by Merchan’t Privilige. It is similar to citizens arrest, which can be construed as assault or worse if the person in fact did not commit any crimes.

5

I am not your lawyer. You are not my client. What follows is not legal advice, but merely educational information posted to assist the public in understanding the law. You should not rely on it in any actual legal situation. Read on at your peril.

It appears that California Penal Code section 490.5(f) governs, which grants a broader privilege than that referenced by groman. As the statute makes plain, the question is not whether you actually stole something; the question is whether the merchant has probable cause to believe you were stealing. The statute reads in relevant part:

Read the statute; there’s a lot more in there about what is permissible, including the right to use non-deadly force to restrain you and the right to search your belongings. I also found this article interesting and helpful.

6

I always thought it was like a citizen’s arrest too. The store can take reasonable measures to detail a shoplifter until the police arrive or until the situation is worked out. When I worked in a grocery store, we had to detain people all the time. I even had to tackle a guy in the parking lot. We usually didn’t call the police unless they resisted or if they were repeat offenders. It is in your best interest to cooperate with the store fully especially if their accusations aren’t correct. Most stores don’t like to press charges because they think it is bad publicity. We usually just took the merchandise back and banned them from the store. I never accused anyone falsley becasue the standards of proof before confronting them were pretty high so I am not sure how that would have worked.

7

There are a few guidelines that bigger retail stores follow when making apprehensions. Whether management or employees follow these to a “T” varies by store.

  1. They must identify the merchandise as being the stores. This is done by actually seeing the person pick the item up off the shelf. If they see someone suddenly walking with an item but never saw them pick it up, they can make the claim that the item is theirs and they brought it into the store with them.

  2. They must observe the person concealing the merchandise. If the person goes into the bathroom with some dvd’s and comes out without any it’s a no go. Reason again, if they got spooked and dumped them off in the bathroom trash and you then stop them at the door and accuse them, you have nothing.

  3. Once merchandise is concealed you can not lose sight of that person. If they put something down their pants and then proceed to a “blind” area of the store and you lose sight it’s a no go. Again they may have dumped the merchandise.

  4. Person must show intent to steal the merchandise. This is done mainly by them attempting to leave the store. If someone hides some cds in their jacket and wanders around the store you can’t stop them and accuse them of stealing. Not until they pass the last point of purchase.

Sounds like they got you for all 4. However, once they have satisfied the 4 criteria they still must follow some rules.

-They can stand between you and the door and ask you to go with them to another area. They can not however physically detain you. If you try to rush past them they should not lay a hand on you (again, some employees take matters into their own hands).

-If you flee outside the store they should not give chase. For their own safety and for the safety of the shoplifter.

-Once they have you in a secluded area they can ask you to empty your pockets and bag but they can not search you or your bag. They will have the police do it for them.

Sounds like after all the restrictions that it’s difficult to make a good stop. The restrictions are put in place though to prevent lawsuits. One bad stop to save a $20 DVD can result in a $20,000 settlement to the accused.

And I do feel for them when it comes to monetary losses. We used to get hit by pros who would come in teams of 3. Two for lookouts on the ends of an aisle, and the third to fill their tin foil lined jumbo purse with as many $40 ink cartridges that would fit. It just pisses you off when you come around the corner to discover your entire rack of HP print cartridges have suddenly disappeared.

8

See Cal. Pen. Code sec. 490.5(f) for the “guidelines” stores must follow in California, your location.

This is not the law in California:

Emphasis added. The law may be different elsewhere, but California permits a merchant to use “reasonable” non-deadly force to prevent you from leaving.

Not the law in California:

If they want to search your bags, etc., they can as long as they have probable cause for the stop. The bottom line is whether, under all the circumstances, it was reasonable for the store to believe that you were attempting to steal the pens. If so, they had a qualified privilege to stop you, using reasonable non-deadly force, to demand return of the item, and to search your belongings.

My discussion of the law is limited to the law in California, your location. Other states’ laws are likely different, as indicated by the other posts here. But if you shop in California, your rights are governed by California law.

9

Clarification: in my last post, replace “your” with “the OP’s” and “you” with “the OP.”

10

Well, there is a difference between what the law will allow you to do and what a store your working for will allow you to do.
I don’t think it’s illegal to pursue a shoplifter into a busy parking lot, however I do know that many stores policy is to “not” give chase to a fleeing suspect. And I have seen employees be fired for not following the stores policy and rightfully so.
I also know of a case where two employees knew it was the store policy to not give chase. They chose to be “heros” instead and chased after the suspect. Suspect ran, jumped a fence, ran onto an expressway, and got hit and killed by a car. The suspects family then proceeded to sue the store for wrongful death.
I don’t know how the case went but I’m sure the store paid more for attorney fees than whatever the guy took.

11

The two phrases in bold are contradictory. If you actually walked out of the store, then it was shoplifting, even if it was just an absent-minded mistake. If they could block the exit, then you hadn’t left the store and it wasn’t shoplifting.

As far as I know, the definition of shoplifting doesn’t hinge on whether you did it on purpose.

It sounds to me like if you actually walked out of the store, their actions were appropriate–both the early action of questioning you and the later action of apologizing and letting you go. If you hadn’t left the store, then they overreacted.

12

You make an excellent point, and you’ve identified one of the motivations for stores to set boundaries well within those permitted by law: attorneys fees. If the store acts well within what’s permitted by law, that makes it harder for someone to file suit against the store after being stopped for allegedly shoplifting. Even getting a lawsuit dismissed costs a store money, because it can’t get its attorneys fees back. A simple dismissal on the papers can cost thousands of dollars. You’ve also identified the other issue: control over employee behavior. An overzealous employee can go beyond store policy, but still be within the law.

13

I’m guessing that he walked past the registers and into the enterence area just before the exterior doors. There’s often an area between the exterior and interior doors. At that point, I think a reasonable person would conclude that he’s attempting to leave.

14

[hijack]Was this a Staples, Office Depot or Office Max? If so, I’m astonished they had even one security guard, let alone two. The ones I visit have barely enough regular staff.[/hijack]

15

Oh, there is no need for that. Yeah, they were too aggressive, but I have much empathy for store owners who are plagued by such thieves. Besides, I really dislike people who sue without very good reason. I always considered such actions as being a last resort.

Sorry, what happened was two employees were standing near the entrance that were monitoring and greeting people as came and left. When I walked through the door and set off the alarm one of them rushed in front of me and the other came up behind me and put his arm around, not grabbing me but making it so my shoulder sort of ran into his hand. Funnily, the man behind me used those exact words.

Sorry, I should have said “blocked my exit”. I was just outside of the building when the two men approached me.

I know what you are talking about but this store did not have such an entrance. The security sensors were flush against the door which led directly outside the store. This is why I had managed to exit the store after setting off the alarm.

It was either Office Depot or Office Max. I too thought it a little odd until the manager said that they were already suspicious of me because I was browsing for several minutes and had the backpack.

Frankly, I have to wonder why they did not immediately believe me. Are many shoplifters so brazen or careless so as to walkout of a store openly carrying the stolen item?

What about how the security tags work? I found some great explanations on “How Stuff Works”, but it did not mention that more sophisticated model, the self-powered one with the cables and blinking led.

16

I did security in a PA supermarket for about two years. According to the training I got once someone made an effort to conceal merchandise, ie putting it under a shirt, we then had probable cause to use reasonable force to detain someone. We had a few people resist or flee and they were dealt with accordingly. Never had a problem and the police were often involved after the stop to make an official arrest.

17

I would imagine it would depend upon where you live, at least to some degree. The Arizona shoplifting statute (April, 2000) says essentially nothing about searching the detainee or his/her belongings. However, it does say… “A merchant, or a merchant’s agent or employee, with reasonable cause, may detain on the premises in a reasonable manner and for a reasonable time any person suspected of shoplifting as defined in subsection A of this section for questioning or summoning a law enforcement officer. Reasonable cause is a defense to a civil or criminal action against a peace officer, a merchant or an agent or employee of such merchant for false arrest, false or unlawful imprisonment or wrongful detention.”

I assume “reasonable cause” in this type of situation may involve setting off the security alarm at the exit, videotape evidence that shoplifting has (or has probably) taken place, eyewitness report that shoplifting has taken place, etc. It appears that in Arizona, the store security can detain you long enough to get your permission to search you and/or your belongings, or long enough to call a police officer if you are screaming about your rights being violated.

I have never shoplifted in my life (brief pause while TheLadyLion starts polishing her halo), but my son did many moons ago when he was about 13ish. I got the telephone call from the store telling me the wonderful news that he had been caught and they needed me to either pick him up or they would call the police to come get him. Because this was not his first foray into shoplifting, I asked them to call the police to come get him, in hopes this would scare the be-jeesus out of him. They told me they really wanted me to come get him, they didn’t want to stigmatize him with a record, etc. Like an idiot, I fell for it. When I arrived, they gave me a paper and asked me to sign it, stating I was taking him into my custody. About one week later, I received a letter from the store charging ME $260… which included about $10 for the merchandise he shoplifted (which was returned to the store when he was caught) and a $250 fine for the offense! I was pissed! When I researched it, I found this was perfectly legal in AZ!

Needless to say, not a dime of that fine came out of my pocket. My son had to pay every last red cent of it out of Christmas money, birthday money, spare change, odd-job money, cashing in a savings bond, etc., until it was paid in full.

18

In a word yup.
Two stories back from my days in retail.
Customer walks into our store (Montgomery Ward) to buy a hand truck. We are sold out. So on his way out of the store he sees one of our company hand trucks, grabs the handle and wheels it right out the door. Only problem was he wheeled it right past me and the man I was talking to, who just happened to be the head of our security department.
The same head of security (plain clothes) is walking through the garden shop. He stops to look at some cordless hedge trimmers. A customer standing there says that he would not pay X dollars for a cordless hedge trimmer. My security guy agrees with him. Customer picks up unit and walks out the door with our security guy right behind him.
In both cases the men were convicted.