Have You Been Caught Shoplifting?
What Has to Happen for a Store to Detain You
The first thing you need to know is what a store has to have or has to see in order to exercise their right to detain you. First, a witness or employee needs to establish probable cause. They need to actually see you take store merchandise and put it in your hand (as in, they can’t just see you holding something that could have come from home or outside the store,) and they have to see you conceal or carry that merchandise away from its location and either depart the store or walk towards the exit (and away from the cashiers) with the merchandise in hand or concealed on your person.
Depending on your jurisdiction, you cannot even be approached until you’ve left the store premises. This isn’t universally true, and often the act of concealment of store property is enough evidence to have you arrested and charged. Sometimes, store security staff (or the contract security firms that work in malls) will bend the rules a bit and rely on your ignorance of your rights in order to detain you if they’re certain they have probable cause. In some cases, they’ll threaten to call the police if you don’t cooperate.
It’s also important to note that while the above is largely true in most cases, jurisdictions differ—sometimes significantly—when it comes to the least amount of evidence required for a store or mall to detain you. In all cases, security needs probable cause, but how strong that case needs to be can vary.
What You Need To Know
When store security approaches you, they’re acting within a very limited and specific jurisdiction and base of authority. They do not have the right to keep you in a small space or confined to a single room without allowing you to leave that space (although they are allowed to keep you from leaving the premises or keep you under surveillance for the duration of your time there if they have established probable cause or until the police arrive.) At any time, you have the right to request a police presence and legal representation. Keep in mind most retailers have very specific guidelines about how a customer is to be approached and detained.
If you do have stolen merchandise on your person and it’s discovered by store security or the police if they’re called, the store has the right to have you arrested and charged with theft. You, then, have the right to not incriminate yourself and to obtain legal representation. If the store claims that they have witnesses who observed you shoplifting, you also have the right to question that witness’ suitability for probable cause, either to police when they arrive or to your legal representation if you’re charged. Photo by Jake Setlak.
Unfortunately, you don’t have a lot of rights that allow you to explicitly talk your way out of being detained. You can always try to talk around security by simply refusing to be detained and walking away, but they have the right to call the police or physically block you from leaving. Your best bet is to appeal to the management of the store or mall and make your case to an employee instead of a security officer. Requesting police presence when security isn’t sure of their own case against you is also a good way to call their bluff, but contacting the police can be a good or bad thing depending on your situation. As always, you have the right not to answer questions until police or a lawyer are present, and you have the right to request them.
What You Should Do When Caught Shoplifting
The best thing to do is cooperate. If the police are called and the store has appropriately established probable cause, the police can search you. If they recover concealed items or observe security footage of your theft, you can be arrested and charged. Many stores never bother with the police, and simply request that any stolen goods be returned, issue a stern warning to the shoplifter, and let them go. Others require that the shoplifter pay the value of the item or some kind of fee and sign a confession before letting them go and dropping the matter. Most will at least demand that you never return to the store.
If you’ve been wrongly detained, cooperation is still likely your best route. This way, you can get out of the situation quickly and address the offense on your own terms. Explaining to security or the store manager that they’re mistaken is a good start, but if they’re not convinced, you can and should request representation, that you be shown the evidence against you, charged with a crime, or released. In most cases, security officials who don’t have a case against you know it, and most are unwilling to risk a false arrest or imprisonment claim.
Your Fourth Amendment with Shoplifting
Even so, being belligerent and hot-headed won’t help you in a situation like this. Cooler heads will prevail, and the last thing you should do is go off half-cocked and start complaining that the store needs a warrant to hold you or that your Fourth Amendment rights have been violated (Note: The Fourth Amendment doesn’t come into play until an agent of the government—like the police—are involved) or that your right to privacy has been violated (which it may be, depending on your jurisdiction, but saying that isn’t going to get you released any sooner.)
Cooperate and be honest and you’ll likely get out of the situation with no trouble at all. If you feel your rights have been violated, your best bet is to get out of the situation, seek professional legal counsel, and then file your complaint with the store management, the ACLU (if you feel your civil rights have been violated,) and the police. You may be able to sue for false arrest or false imprisonment.
Finally, a disclaimer: The above isn’t meant to be professional legal counsel in any way, and if you’re concerned about a specific case or want more information about the laws in your jurisdiction, you should contact a lawyer.
Have you been wrongly detained under suspicion of shoplifting? Are you a lawyer and have better advice to offer? Share your tips in the discussions below.
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