LIABILITY & LEGAL ASPECTS (Lesson 18 of 28)
Shopkeeper’s Privilege/Detaining a Suspect
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 are prohibited must be understood and memorized by the officer.
A security officer and merchant who comply with the shopkeeper’s privilege are entitled to an immunity from civil liability!
California Penal Code section 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 business, and thus comes within the protection of the section.
Specifically, the Section 490.5 states in part:
“(f) (1) 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 from the merchant’s premises.”
This one paragraph instills quite a few requirements on the security officer.
- Reasonable Time.The officer may only detain for a reasonable amount of time. The start of the detention and end of detention should be placed in the report or logs kept by the security officer.
- Reasonable Purpose.The security officer must have a purpose for the detention. This officer must be able to articulate the actual purpose for the detention with specificity. For example, a specific purpose may be, “I saw the person take two packages of batteries from the shelf in aisle three. I saw the person place the batteries in his coat pocket. I watched the person as he walked past the checkouts and exit the store.”
- Articulated Purpose.There is a specific, articulated, identifiable purpose of the detention. If the person is detained because, “I thought they looked suspicious and I did not like the way they dressed. I decided to detain the person to see if he had any items they did not pay for in his possession,” this is NOT a specific, identifiable purpose for the detention.
This description also does not provide probable cause for the detention.
Reasonable Investigation and Manner. Investigation must be conducted in a reasonable manner. Penal Code Section 490.5 (f) (3) allows the security officer to examine any items “in plain view” to determine the ownership of the property. Penal Code Section 490.5(f)(4) allows the officer to request the person detained to surrender the suspected stolen item.
If the person refuses to surrender the item(s), the officer may conduct a “limited and reasonable search” to recover the item(s). The Code section is very specific in what is allowed during this search. First, the search is always governed by reasonableness. If the security officer believes an action would be unreasonable, the action should not be taken!
Specifically, the code section allows the security officer to search “packages, shopping bags, handbags or other property in the immediate possession of the person detained.” The security officer may NOT search any clothing worn by the person. This action is best left for the police.
Upon surrender or discovery of the item, the person detained may also be requested, but may not be required, to provide adequate proof of his or her true identity.
Summary of Shopkeeper’s Privilege
In summary, the shopkeeper’s privilege allows a security officer or shopkeeper to detain a person if two requirements are met. First, the officer must have probable cause to believe the person has stolen or attempted to steal merchandise. Second, the officer must act reasonably under all circumstances.
If the above two items are not met, the security officer may be liable for false arrest, detention or imprisonment. If the two requirements are met, however, the security office may be entitled to immunity.