If your business allows visitors onto your premises it is important to know what you can, and cannot do if you suspect someone may be attempting to steal from you.
Words you need to know
Probable Cause: Evidence that leads to a reasonable belief that a person has committed or will commit a crime.
Confine / confinement: To keep (someone or something) within limits: to prevent (someone or something) from going beyond a particular limit, area, etc: to keep (a person or animal) in a place (such as a prison). https://www.merriam-webster.com
Shoplifting: Entering an open business intending to commit the crime of petty theft.
Shoplifter: Someone who steals goods from a shop.
What is the Shopkeepers’ Privilege?
The privilege gives storekeepers the ability to stop a person suspected of stealing from their store. Without this privilege, they would simply be left powerless and have to allow a suspected shoplifter to walk out of their store un-challenged.
A shopkeeper who reasonably believes that the plaintiff (suspected shoplifter) has stolen or is attempting to steal something from the shop may detain the plaintiff in a reasonable manner for a reasonable amount of time to investigate. https://www.law.cornell.edu
The privilege also extends to store security staff and their agents.
It allows the shopkeeper some authority to act on their suspicions, even if they end up being wrong.
Reasonable Grounds / Probable Cause
Suspicion of theft is not enough. Reasonable grounds (also known as probable cause), require three main steps as evidence for a reasonable suspicion of shoplifting:
- Witness the shoplifter select and conceal or carry away the merchandise.
- Maintain continuous observation of the shoplifter.
- Witness the shoplifter fail to pay for the merchandise.
Rules for detaining a suspected shoplifter
A shopkeeper must also follow the law when they detain a person.
When detaining a suspected shoplifter, the shopkeeper:
- Must have reasonable grounds to detain the suspect
- Can only detain the suspect for a reasonable amount of time
- Must detain the suspect in a reasonable manner.
Duration
The shopkeeper cannot hold a suspect for hours. A reasonable amount of time is generally considered to be the amount of time it takes for the police to arrive or to carry out a reasonable investigation.
Location
The shopkeeper cannot chase the suspected shoplifter around the town and then detain them. They can only apprehend the shoplifter inside or near their store.
Force
The shopkeeper’s privilege allows a store owner to use a reasonable amount of nondeadly force on the detainee that is necessary to:
- Protect themselves
- Prevent the suspects escape from the property.
The storekeeper must not use force to detain the person unless the suspect is trying to harm the shopkeeper or run away and then they can only use reasonable, non-deadly force if necessary. Otherwise, they will face charges of assault and battery (see: https://makemeclever.com/assault-and-battery-the-main-differences/ )
Whether the force used was reasonable will be decided by a judge based on the facts of the case.
Confinement
The storekeeper must find a way to keep the suspect on the premises without force or arrest. Suspects must not be kept in confined areas as this can lead to claims of false imprisonment.
A store owner can do two things while the suspect is in detention:
- Examine the items he suspects are stolen
- Conduct a search.
1. Examine items
During detention, a merchant may examine any items that:
- They have probable cause to believe were unlawfully taken, and
- That are in plain view.
The purpose of the examination is to determine who legally owns the items.
2. Conduct a search
The storekeeper can ask the suspect to hand over the items they have reasonable cause to believe the suspect attempted to steal.
If the suspect refuses, the storekeeper is permitted to carry out a limited search to recover items.
The storekeeper cannot search the clothing of the person being detained but can search the suspects:
- Packages
- Bags
- Other property in their immediate possession.
Merchants are private citizens and do not need a search warrant. If stolen items are found during the search the storekeeper must call a law enforcement agency to come to the store to issue a citation or conduct an arrest.
False imprisonment
This is defined as ‘the unlawful violation of the personal liberty of another.‘ The storekeeper’s privilege is a valid legal defense to the crime of false imprisonment however, if the shopkeeper fails to do satisfy any of the rules above, they may face charges of false imprisonment, assault, and battery.
Citizens arrest
The storekeeper’s privilege is different from making a citizen’s arrest. A citizen’s arrest is made by a citizen who has no official authority to do so and is not an authorized law enforcement personnel. In most countries and states, arrest by a private citizen is against the law. Only police or other authorized authority can arrest the suspect.
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