Advanced Arrest, Search & Seizure (Lesson 21 of 31)
An example of a poorly articulated purpose:
“The suspect was in the aisle of the store with his hands inside his coat pockets. I noticed that upon looking up in my direction, he looked nervous. He then left the store. Believing that he was probably hiding some store merchandise in his coat, I grabbed him just outside of the store and, after a brief struggle, was able to subdue him. I went in his pockets, but could not find any store merchandise. It must have fallen out during the struggle.”
Here, the security officer did not observe any crime committed. He merely had a suspicion, which was no more than a “hunch,” which is insufficient for a stop. The officer will likely be looking at a nice little civil lawsuit against him.
Reasonable Investigation and Manner: Investigation must be conducted in a reasonable manner. For example, Penal Code Section 490.5(f)(3) allows the security officer to examine any items that are “in plain view” in order to determine the proper owner of that item.
Penal Code Section 490.5(f)(4) allows the security officer to request the person detained to surrender the items that are suspected to be stolen. If the suspect refuses to surrender the item(s), the officer may conduct a “limited and reasonable search” to recover the item(s). The Penal Code is very specific regarding what is allowed during this search. First, the search is always governed by reasonableness. If the security guard believes that the search is unreasonable, that action should not be taken!!
The Penal Code allows the security officer to search “packages, shopping bags, handbags or other property in the immediate possession of the person detained.” The security guard may NOT search any clothing worn by the person. If you believe that the suspect possesses stolen merchandise inside his or her clothing, it is best to detain the suspect until the police arrive.
Upon discovery of any item possessed by the suspect, or upon surrender of that item by the suspect, the security guard may request that the suspect provide adequate proof of his or her identity. The suspect, however, is not required to provide this information to the security officer.
In sum, a suspected shoplifter can be detained where there is reasonable cause to believe that the suspect has unlawfully taken or attempted to take an item from the store. This is not an arrest. This is merely a temporary detention in order to investigate the reasonable belief the security officer has that a theft has occurred or was attempted.
Deadly force may never be employed. Reasonable non-deadly force may be used to effect the detention when the suspect resists detention. What amount of force is reasonable depends upon the circumstances.
Following a request to surrender an item which the security officer believes has been taken, the security officer may search the suspect’s belongings. However, this is limited to shopping bags, handbags, and other items on the suspect’s person. The security officer may not search the suspect’s clothing or apparel.
Following detention, if it is determined that a shoplifting has occurred (or was attempted) and charges are to be pressed against the suspect, the suspect must be turned over to the appropriate law enforcement authorities. This must occur within a reasonable period of time following the start of the detention. What is considered to be a reasonable amount of time will depend upon the circumstances of the case.