stormcrow said:
California:
Is it legal for stores to search you as you are leaving them by security guards - what about non security employees? And what legal authority do security guards actually have? Lastly, can you argue that you do not want to show them your reciept because it has personal information about you, i.e. credit card number?
I thought I had rights that said someone can't just search me for the hell of it (police aside - let's face it - they can MAKE thier searched legal.)
I'm really getting steamed about customer searching as a matter of course in these retail stores.
Thanks in advance for anyones input.
-S
A retail store makes a choice when it decides to apprehend and arrest those who attempt to steal their merchandise. With that choice comes the legal responsibility of properly hiring, training, and supervising those who make shoplifter apprehensions and arrests. In the retail loss prevention profession, the possibility of detaining and falsely accusing a customer of theft is a business reality that must be addressed.
In the United States, citizens value their civil liberties and constitutional rights and don't appreciate submitting to unlawful seizure and search. Because of this, there has been a legal trend of suing the retail store anytime a customer is wrongfully accused of shoplifting. Because of this, the retail security and loss prevention industries have developed six universally accepted steps to minimize the potential for a false arrest claim.
They are:
You must see the shoplifter approach the merchandise
You must see the shoplifter select the merchandise
You must see the shoplifter conceal, convert or carry away the merchandise
You must maintain continuous observation of the shoplifter
You must observe the shoplifter fail to pay for the merchandise
You must apprehend the shoplifter outside the store
If these six steps are followed, false arrest situations and subsequent lawsuits will be almost nonexistent. These six steps were designed to establish a high degree of probable cause for detention and arrest of a person suspected of shoplifting. If one of these steps is skipped, the chance for false arrest increases proportionately. If two or more steps are skipped, the store personnel are acting recklessly towards customers and are exposing the store unnecessarily to liability and false arrest claims. Remember, state law may not require this high degree of care for criminal prosecution.
The word "false arrest" is very distasteful to the retail industry, so it has created several alternate words to describe the event. Words like "non-productive detention," or "unproductive stop," or "investigative detention" all have been used in place of false arrest so not to seemingly admit liability. Whatever the word, if the customer you stop and accuse is not holding the merchandise you thought he or she concealed than you have a potential false arrest claim.
Many states have enacted legislation to protect the merchant from such false arrest claims by allowing the store to make "investigative detentions" of a customer suspected of shoplifting. In these jurisdictions, the law allows certain latitude or "merchant's privilege" if the merchant has a reasonable belief that a customer has stolen merchandise. In many jurisdictions, law allows the merchant to detain a customer for a reasonable time, and in a reasonable manner, for the purpose recovering the stolen merchandise or for summoning the police.
The problem with these statutes is that they are vague as to what "reasonable" means and what the word "detain" means. All to often, merchants have overly relied on this statutory language to protect them from lawsuit only to discover that it could not relieve them of liability.
In most jurisdictions, a reasonable belief that someone has shoplifted does not include a stranger’s observation and report. Customers are often unreliable in what they report and it is considered unreasonable to detain and accuse someone of theft based solely on a customer observation. Besides, what if the customer and shoplifter are working together to set up the store for a lawsuit?
While detaining someone, you must do so in a reasonable manner. Tackling and injuring a customer in the parking lot over suspected petty theft might seem excessive especially if no other means of detention were attempted first. You must also detain someone only for a reasonable time. Holding someone for three hours while you investigate a check, credit card, coupon or refund fraud attempt is excessive.
The best way to limit false arrest situations is hiring, training, and supervising competent staff. It is usually considered negligent to have a policy of apprehension and arrest of shoplifters if the store personnel have no training on how to do so correctly. It is usually considered negligent if a store employee uses excessive force when apprehending a suspected shoplifter. It requires special training to understand how to routinely apprehend shoplifters while only using minimal force. Tackling, punching, and verbal abuse of shoplifters are never acceptable. Excessive or unreasonable use of handcuffs, leg restraints, or pain compliance holds are also inappropriate when dealing with those suspected of retail theft.
You run the risk of a false arrest claim when you:
Don’t observe the customer approach a display
Don’t observe the merchandise being selected from the display
Don’t see the merchandise being concealed, carried away or converted (i.e. eaten etc)
Don’t maintain continuous observation and the shoplifter dumps the item
Don’t watch the check stand and verify the non-payment of the item
Don’t detain the shoplifter outside the store (or at least past the last register)
Don’t detain only the person directly responsible for the theft
To avoid other related claims:
Approach from the front (so the shoplifter doesn’t think you’re a robber)
Have at least one witness of the same sex present at all times
Have at least one more backup than the number of shoplifters
Clearly identify yourself as the store representative or security officer
State the reason for the detention and ask for the item back
Don’t be afraid to immediately disengage and apologize if you make a mistake
Listen for spontaneous utterances (i.e. "I forgot to pay for it")
Closely escort the shoplifter to a private office
Do not chase the shoplifter through the store
Always be polite and professional even if the shoplifter is not
Do not use excessive force (i.e. double lock handcuffs)
Do not make threats or exchange insults
Accommodate reasonable medical and handicap requests
Process the arrest swiftly according to store policy
Save, tag, and photograph the stolen merchandise as evidence
Cooperate with the police and appear in court, if necessary
IAAL
