The easiest way to avoid an accusation of an unlawful search is to ask the suspect to empty his or her pockets (or purse). Alternatively, if you have witnessed the suspect place an item into his or her pockets (or purse), demand that the merchandise be returned. If the suspect complies, then no search has occurred and the suspect cannot argue that you performed an unlawful search.

The suspect also argued that the evidence of her provision of false information should be excluded because she was not first advised of her Miranda rights. Miranda rights are those rights which a peace officer must recite to a suspect prior to questioning. Miranda rights are usually stated as follows: “You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you. Do you understand these rights that I have recited for you?”

A private person ordinarily has no duty to advise a suspect of his/her Miranda rights unless the citizen is acting as the agent of law enforcement officials and/or there is complicity with law enforcement with respect to the questioning. In this case, the store manager was not acting as an agent of law enforcement officials. As such, he was not required to inform the suspect of her Miranda rights.

In People v. Lee (1984) 157 Cal.App.3d Supp. 9, a security officer in a retail clothing store witnessed a suspect remove several articles of clothing from their hangers and place them under other articles of clothing which remained on their hangers. The security guard then witnessed the suspect proceed into the fitting room area with three items on hangers, with two items underneath.

The security officer waited and observed the suspect exit the fitting room and return the three items on hangers to the clothing rack. The security officer went to the fitting room, but the two other items were not there. The security officer detained the suspect after she exited the store. The security officer took the suspect back into a store office and asked if she (the security officer) could recover the items from the suspect’s purse. The suspect initially said “No,” but thereafter removed the two items herself and handed them to the security officer.

The suspect argued to the court that the arrest was unlawful and, as such, her subsequent consent to be searched was invalid. The court disagreed. A private citizen may make an arrest for a public offense which occurs in that person’s presence. There was no question that an offense occurred. The only question, then, was whether it occurred in the security officer’s presence.

The issue of whether an offense occurs in someone’s presence is liberally construed. Physical proximity to the offense is not required. In fact, the private citizen need not even see the offense occur. The private citizen may arrest a suspect when circumstances exist which would cause a reasonable person to believe that a crime has been committed in his presence.

As such, even though the suspect was behind a fitting room door when she concealed the merchandise in her purse, the offense was still deemed to have occurred in the security officer’s presence.

The court also found that the security officer had the right to detain the suspect without arresting her. A merchant (or security officer) has the right to detain a person whom the merchant has reasonable cause to believe has shoplifted from him. He may also request that the suspect voluntarily surrender the merchandise taken. If refused, the merchant may make a limited search of packages, shopping bags, etc.