Right to Privacy


Many of the rules regarding searches are set forth in the area of the Shopkeeper’s Privilege. Remember, reasonableness rules! The number one rule to follow is reasonableness. If the search may not be considered reasonable, don’t do it!

Search for weapons

California Penal Code Section 846 governs the rights of private persons to search for weapons after making a lawful arrest. “Any person making an arrest may take from the person arrested all offensive weapons which he may have about his person, and must deliver them to the magistrate before whom he is taken.”

This code section is narrowly construed and does not allow the search to be expanded. For example, in the case of People v. Sjosten (1968) 262 Cal.App.2d 539, the court explained only offensive weapons may be taken from a person pursuant to a lawful citizen’s arrest. A search for contraband incidental to arrest or a search of premises is not allowed.

Generally, a security officer has only the authority to conduct a search that is specifically allowed. Namely, a security officer may search the specific items set forth in the shopkeeper’s privilege and search for weapons pursuant to an arrest. Both searches must be reasonable. A weapons search should be limited to a “pat down” on the outside of the clothing only.

Also, the security officer must be aware of how the timing affects the ability to search. Note that the search for weapons is made after an arrest. A security officer cannot search for weapons during the investigation into whether a crime has been committed.

Example of a sequence regarding a shoplifting incident allowing for weapons search

The sequence of events must be as follows:

  1. Security officer observes unlawful activity.
  2. Security officer has probable cause to detain.
  3. Security officer detains individual.
  4. Security officer continues investigation.
  5. Security officer may search shopping bags, packages, purses, etc. pursuant to Shopkeeper’s Privilege.
  6. Security officer finds stolen item(s).
  7. Security officer arrests individual pursuant to citizen’s arrest.
  8. Now, the security officer may search for weapons.
  9. Care and safety of all those in the vicinity must be taken into account in the search for weapons.

Miranda Warnings

The general rule is that Miranda warnings are not required before a private security officer questions another individual. Miranda warnings are applicable to a custodial interrogation by a police officer. A security officer is not a police officer, and as such, the Miranda requirements do not apply. Any confessions or incriminating statements made to security officer may be admitted in a trial. Consequently, any statements made by the individual should be set forth in the report or logs.