My response:
I tend to disagree with my esteemed collegue, LawRat, when she states: "It's not a matter of your rights, it's the stores' right."
As we shall see, there is a law in California against such acts of these stores as our writer has related.
It is the most exciting time in our history to be a consumer. Price, selection, access and availability have all improved dramatically since the advent of the Internet. Critics say that this boon has come at a potentially great cost. Commentators point to the demise of our privacy. However, the autonomy that is being taken away offline is much more insidious.
In this recent post on this Board, our writer basically asks,
"Can you investigate why retail establishments examine your receipt and your shopping cart as you exit their stores. I want to know if this is legal and if I have to obey."
I will try to answer his question--and make it funny. The answers to his questions would be the easy part.
Retail stores have become more aggressive with their theft prevention tactics. According to a local crime prevention newsletter, "The threat of being caught, questioned by police, put on trial and maybe even put in jail, may be enough to turn most shoplifters away."
In other words, deterrence by humiliation. Why do you gladly show your receipt as you leave a store's premises? Because, if you do not, your fellow shoppers will look at you funny. They will sneer, snicker and point at you. What's worse, the security guard, who invariably looks as if he is about 17, will say in a puberty-ridden, high-pitched voice, attracting the attention of others, "Excuse me, sir? I didn't see your receipt."
Can stores do this to their customers?
No, according to the California Penal Code section 490.5. (f) (1).
A merchant may detain a person for a reasonable time for the purpose of conducting an investigation in a reasonable manner whenever the merchant has probable cause to believe the person to be detained is attempting to unlawfully take, or has unlawfully taken, merchandise from the merchant's premises.
The pertinent phrase here is "probable cause."
If the store believes that you have likely stolen store property, then they can detain you in order to examine the items.
If there is no reason to think that your conduct in their store was somehow unlawful, then they have no right to detain you.
In other words, stores like Fry's, which engage in a practice similar to a customs check at the airport, can only request your permission to comply. If you refuse, they have no authority to detain you without "probable cause" to believe that you have stolen something.
So, I ventured into Fry's to test my theory. I purchased typical Fry's items: batteries, potato chips and a stuffed Dilbert. Why Dilbert?
Anyway, after I paid, I walked toward a group of people waiting to have their receipt examined at the exit. I jockeyed into pole position. My heart was pounding. I passed two men wearing Apple shirts, a young lady carrying a scanner, and three teens with junk food.
As I headed out of the store without stopping to have my items checked, I made eye contact with the security employee. She smiled and I left. No one sneered, pointed or snickered at me.
What a letdown! I went back inside to ask why she did not try to stop me. She said, "We can't stop you, unless we believe you have stolen something."
"Do they know that?" I asked, pointing to the line of shoppers waiting to have their items examined.
"It is not our duty to tell them."
So, there you have it. One word of advice, though: if you run out the door shouting, "You'll never catch me alive," this might give them probable cause.
Otherwise, just keep walking and, if questioned or asked to come back, merely say, "No thank you" and keep walking. Or, if you really want to get "touchy" about it, respond with your own question, "Do you have probable cause to stop or detain me?" Then hand them a copy of the Code Section, below, and highlight the cited portion that I mentioned above.
One final thought - - Insofar as stores like Price Club and Costco are concerned, you need to ask for, and review, the application and rules you signed to become a member. You may have, in fact, waived the State law against such detentions, and have specifically agreed to be inspected, and to have your receipt examined, upon exiting the store. So, ask to re-read your agreement with these stores. If it's not waived, give them a copy of the law as you're exiting.
Thanks for writing, and for your most interesting and topical question.
IAAL
California Penal Code Section
490.5.
(a) Upon a first conviction for petty theft involving merchandise taken from a merchant's premises or a book or other library materials taken from a library facility, a person shall be punished by a mandatory fine of not less than fifty dollars ($50) and not more than one thousand dollars ($1,000) for each such violation; and may also be punished by imprisonment in the county jail, not exceeding six months, or both such fine and imprisonment.
(b) When an unemancipated minor's willful conduct would constitute petty theft involving merchandise taken from a merchant's premises or a book or other library materials taken from a library facility, any merchant or library facility who has been injured by that conduct may bring a civil action against the parent or legal guardian having control and custody of the minor. For the purposes of those actions the misconduct of the unemancipated minor shall be imputed to the parent or legal guardian having control and custody of the minor. The parent or legal guardian having control or custody of an unemancipated minor whose conduct violates this subdivision shall be jointly and severally liable with the minor to a merchant or to a library facility for damages of not less than fifty dollars ($50) nor more than five hundred dollars ($500), plus costs. In addition to the foregoing damages, the parent or legal guardian shall be jointly and severally liable with the minor to the merchant for the retail value of the merchandise if it is not recovered in a merchantable condition, or to a library facility for the fair market value of its book or other library materials. Recovery of these damages may be had in addition to, and is not limited by, any other provision of law which limits the liability of a parent or legal guardian for the tortious conduct of a minor. An action for recovery of damages, pursuant to this subdivision, may be brought in small claims court if the total damages do not exceed the jurisdictional limit of that court, or in any other appropriate court; however, total damages, including the value of the merchandise or book or other library materials, shall not exceed five hundred dollars ($500) for each action brought under this section. The provisions of this subdivision are in addition to other civil remedies and do not limit merchants or other persons to elect to pursue other civil remedies, except that the provisions of Section 1714.1 of the Civil Code shall not apply herein.
(c) When an adult or emancipated minor has unlawfully taken merchandise from a merchant's premises, or a book or other library materials from a library facility, the adult or emancipated minor shall be liable to the merchant or library facility for damages of not less than fifty dollars ($50) nor more than five hundred dollars ($500), plus costs. In addition to the foregoing damages, the adult or emancipated minor shall be liable to the merchant for the retail value of the merchandise if it is not recovered in merchantable condition, or to a library facility for the fair market value of its book or other library materials. An action for recovery of damages, pursuant to this subdivision, may be brought in small claims court if the total damages do not exceed the jurisdictional limit of such court, or in any other appropriate court. The provisions of this subdivision are in addition to other civil remedies and do not limit merchants or other person
