Advanced Arrest, Search & Seizure (Lesson 20 of 31)
General Rule/Penal Code Section 490.5
In California, there is a specific Penal Code Section which provides the rules regarding when and how a shopkeeper or the shopkeeper’s agents may stop and detain a person suspected of shoplifting. This area of the law is of utmost importance to the security officer professional. What actions are allowed and what actions are prohibited must be understood and memorized by the security officer.
A security officer and merchant who comply with the shopkeeper’s privilege are entitled to immunity from civil liability!!!
California Penal Code §490.5 allows for a retailer and/or their agents to stop and detain persons reasonably suspected of shoplifting for the purpose of investigation, reclaiming the property, and to prevent escape. A security officer assigned to a retail post is an “agent” of the retailer and, thus, falls within the protection of this section (provided the security officer complies with this section).
Specifically, Penal Code §490.5 states:
“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 form the merchant’s premises.”
“In making the detention a merchant may use a reasonable amount of non-deadly force necessary to protect himself or herself and to prevent escape of the person detained or the loss of property.”
This one paragraph instills several necessary requirements upon the security officer.
Reasonable Time: The security officer may only detain the suspect for a reasonable amount of time. The security officer should always include in the security report or log the exact time in which the detention began and ended. The end of the detention is when the suspect is no longer being detained by the security officer, e.g., the time in which the suspect is released, turned over to the authorities, etc.
Reasonable Purpose: The security officer must have a purpose for the detention. For example, if the security officer witnessed the suspect place a store item into his pocket and then exit the store without paying for that item, it would be reasonable under those circumstances to detain the suspect. However, if the security officer detained the suspect solely because of the suspect’s ethnicity or the way she was dressed, that would not be a reasonable purpose to support the detention of the suspect.
Articulated Purpose: The security officer must be able to articulate the actual purpose for the detention with specificity. For example, a specific, articulated purpose may be, “I saw the suspect take two packages of batteries from the shelf in aisle three. I saw the suspect place the batteries in his coat pocket. I watched the suspect as he walked past the cashier and out of the store without paying for the batteries.” If you cannot specifically articulate the reason why you have detained the suspect, there is a strong probability that it was not reasonable for you to detain the suspect under the circumstances.