Shopkeeper's privilege

Last updated

Shopkeeper's privilege is a law recognized in the United States under which a shopkeeper is allowed to detain a suspected shoplifter on store property for a reasonable period of time, so long as the shopkeeper has cause to believe that the person detained in fact committed, or attempted to commit, theft of store property. [1]

Contents

Limits

The privilege to detain, although recognized in many jurisdictions, is not as broad as a police officer's privilege to arrest. [2] If the shopkeepers exceed the bounds of this privilege and make an arrest, the lawfulness of their action will be determined by the jurisdiction's rules governing arrest by a private citizen. The shopkeepers' privilege is for the purpose of investigation only; if, after reasonable detention and investigation, the shopkeepers mistakenly conclude that the suspects are guilty and have them arrested, the shopkeepers may become liable for these acts just as they would have been had they committed the acts without undertaking a prior detention and investigation. [3] Statutes in many states have modified and in some cases broadened the common law privilege, for example, by expressly permitting detention of the suspect until the police arrive. [4] In other cases, case precedent has provided shopkeepers with similar tools. [5] The practical effect of these extensions is to give the shopkeeper the same privilege as a police officer to make an arrest on reasonable grounds. [6]

Rationale

This privilege has been justified by the practical need for some degree of protection for shopkeepers in their dealings with suspected shoplifters. Absent such privilege, a shopkeeper would be faced with the dilemma of either allowing suspects to leave without challenge or acting upon their suspicion and risking a false arrest. [7]

The privilege for the most part is to be able to return the stolen goods by determining ownership. The shopkeeper may not force a confession. The shopkeeper's privilege does not include the power of search. [8] Some courts, however, have expanded this original common law privilege to also include the detention of criminal trespassers: "[t]he detention and removal of a criminal trespasser is an essential power of any shopkeeper or other property owner[.]" [9]

Requisite conditions

In seeking to avail themself of the shopkeeper's privilege, the proprietor or agent thereof must ensure:

  1. The investigation is conducted near or on the premises; the detention itself should be effected either on the store premises or in the immediate vicinity thereof. The privilege likely would not apply to after-the-fact questioning of a suspected thief who had left the store's property. While the common law does permit the owner of goods acting on fresh pursuit to use reasonable force to recapture their goods from one who actually took them wrongfully, in doing so the property owner acts at their own peril. [10] Moreover, the investigation must be to determine ownership of the property, not to force a confession. [11]
  2. The shopkeeper has reasonable grounds to suspect the particular person detained is shoplifting.
  3. Only reasonable, nondeadly force is used to effect the detention. Such force being justified when the suspect is in immediate flight or violently resists detention. [7]
  4. The detention itself lasts only the time necessary to make a reasonable investigation of the facts. Fifteen minutes may be too long where all that is necessary is to ask the cashier whether the detainee has paid. [7]

In cases where a shopkeeper fails to satisfy the aforementioned requisite conditions, they lose the privilege and may face liability under local criminal statutes and civil torts. However, so long as these conditions are established, the shopkeeper is immune from liability for false arrest, battery, etc., even when it is discovered after the investigation that the person detained was innocent of any wrongdoing. [12]

Statutory analogs

The common law shopkeeper's privilege has been superseded in most states by so-called shoplifting statutes, or merchant's statutes, that allow merchants, their employees, and their agents to detain suspected shoplifters for: the investigation of merchandise or property ownership, the recovery of unpurchased merchandise or property, and the summoning of a police officer. [13]

See also

Related Research Articles

<span class="mw-page-title-main">Arrest</span> Law enforcement action

An arrest is the act of apprehending and taking a person into custody, usually because the person has been suspected of or observed committing a crime. After being taken into custody, the person can be questioned further or charged. An arrest is a procedure in a criminal justice system, sometimes it is also done after a court warrant for the arrest.

Trespass is an area of tort law broadly divided into three groups: trespass to the person, trespass to chattels, and trespass to land.

<span class="mw-page-title-main">Shoplifting</span> Theft of goods from a retail establishment

Shoplifting is the theft of goods from a retail establishment during business hours. The terms shoplifting and shoplifter are not usually defined in law, and generally fall under larceny. In the retail industry, the word shrinkage is used to refer to merchandise often lost by shoplifting. The term five-finger discount is an euphemism for shoplifting, humorously referencing stolen items taken "at no cost" with the five fingers.

A citizen's arrest is an arrest made by a private citizen – a person who is not acting as a sworn law-enforcement official. In common law jurisdictions, the practice dates back to medieval England and the English common law, in which sheriffs encouraged ordinary citizens to help apprehend law breakers.

False imprisonment or unlawful imprisonment occurs when a person intentionally restricts another person's movement within any area without legal authority, justification, or the restrained person's permission. Actual physical restraint is not necessary for false imprisonment to occur. A false imprisonment claim may be made based upon private acts, or upon wrongful governmental detention. For detention by the police, proof of false imprisonment provides a basis to obtain a writ of habeas corpus.

Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177 (2004), is a United States Supreme Court case in which the Court held that a statute requiring suspects to disclose their names during a valid Terry stop does not violate the Fourth Amendment if the statute first requires reasonable suspicion of criminal involvement, and does not violate the Fifth Amendment if there is no allegation that their names could have caused an incrimination.

Terry v. Ohio, 392 U.S. 1 (1968), was a landmark U.S. Supreme Court decision in which the court ruled that it is constitutional for American police to "stop and frisk" a person they reasonably suspect to be armed and involved in a crime. Specifically, the decision held that a police officer does not violate the Fourth Amendment to the U.S. Constitution's prohibition on unreasonable searches and seizures when questioning someone even though the officer lacks probable cause to arrest the person, so long as the police officer has a reasonable suspicion that the person has committed, is committing, or is about to commit a crime. The court also ruled that the police officer may perform a quick surface search of the person's outer clothing for weapons if they have reasonable suspicion that the person stopped is "armed and presently dangerous." This reasonable suspicion must be based on "specific and articulable facts," and not merely upon an officer's hunch.

In American criminal law, a material witness is a person with information alleged to be material concerning a criminal proceeding. The authority to detain material witnesses dates to the First Judiciary Act of 1789, but the Bail Reform Act of 1984 most recently amended the text of the statute, and it is now codified at 18 U.S.C. § 3144. The most recent version allows material witnesses to be held to ensure the giving of their testimony in criminal proceedings or to a grand jury.

A Terry stop in the United States allows the police to briefly detain a person based on reasonable suspicion of involvement in criminal activity. Reasonable suspicion is a lower standard than probable cause which is needed for arrest. When police stop and search a pedestrian, this is commonly known as a stop and frisk. When police stop an automobile, this is known as a traffic stop. If the police stop a motor vehicle on minor infringements in order to investigate other suspected criminal activity, this is known as a pretextual stop. Additional rules apply to stops that occur on a bus.

False arrest, unlawful arrest or wrongful arrest is a common law tort, where a plaintiff alleges they were held in custody without probable cause, or without an order issued by a court of competent jurisdiction. Although it is possible to sue law enforcement officials for false arrest, the usual defendants in such cases are private security firms.

<span class="mw-page-title-main">Retail loss prevention</span> Practices to reduce loss of goods in retail stores

Retail loss prevention is a set of practices employed by retail companies to preserve profit. Loss prevention is mainly found within the retail sector but also can be found within other business environments.

Reasonable suspicion is a legal standard of proof that in United States law is less than probable cause, the legal standard for arrests and warrants, but more than an "inchoate and unparticularized suspicion or 'hunch'"; it must be based on "specific and articulable facts", "taken together with rational inferences from those facts", and the suspicion must be associated with the specific individual. If police additionally have reasonable suspicion that a person so detained is armed and dangerous, they may "frisk" the person for weapons, but not for contraband like drugs. However, if the police develop probable cause during a weapons frisk, they may then conduct a full search. Reasonable suspicion is evaluated using the "reasonable person" or "reasonable officer" standard, in which said person in the same circumstances could reasonably suspect a person has been, is, or is about to be engaged in criminal activity; it depends upon the totality of circumstances, and can result from a combination of particular facts, even if each is individually innocuous.

A store detective is a member of loss prevention whose main role is to prevent and detect theft and reduce shrink in retail outlets. They do this by patrolling the store in plain clothes looking to identify members of the public who are stealing from the store. More common terms today with major retailers are loss prevention agent, detective or investigator and asset protection officer. Special officer, once common, is now rarely used, as it is typically denotes some form of law enforcement authority, and some jurisdictions limit its use.

<span class="mw-page-title-main">Police and Criminal Evidence Act 1984</span> United Kingdom legislation

The Police and Criminal Evidence Act 1984 (PACE) is an act of Parliament which instituted a legislative framework for the powers of police officers in England and Wales to combat crime, and provided codes of practice for the exercise of those powers. Part VI of PACE required the Home Secretary to issue Codes of Practice governing police powers. The aim of PACE is to establish a balance between the powers of the police in England and Wales and the rights and freedoms of the public. Equivalent provision is made for Northern Ireland by the Police and Criminal Evidence Order 1989 (SI 1989/1341). The equivalent in Scots Law is the Criminal Procedure (Scotland) Act 1995.

"Stop and identify" statutes are laws in several U.S. states that authorize police to lawfully order people whom they reasonably suspect of committing a crime to state their name. If there is not reasonable suspicion that a person has committed a crime, is committing a crime, or is about to commit a crime, the person is not required to identify himself or herself, even in these states.

<span class="mw-page-title-main">Detention (imprisonment)</span> Process whereby a state or private citizen lawfully holds a person, removing their freedom

Detention is the process whereby a state or private citizen lawfully holds a person by removing their freedom or liberty at that time. This can be due to (pending) criminal charges preferred against the individual pursuant to a prosecution or to protect a person or property. Being detained does not always result in being taken to a particular area, either for interrogation or as punishment for a crime. An individual may be detained due a psychiatric disorder, potentially to treat this disorder involuntarily. They may also be detained for to prevent the spread of infectious diseases such as tuberculosis.

Kolender v. Lawson, 461 U.S. 352 (1983), is a United States Supreme Court case concerning the constitutionality of vague laws that allow police to demand that "loiterers" and "wanderers" provide "credible and reliable" identification.

<span class="mw-page-title-main">Pre-trial detention</span> Detention after arrest and charge until a trial

Pre-trial detention, also known as jail, preventive detention, provisional detention, or remand, is the process of detaining a person until their trial after they have been arrested and charged with an offence. A person who is on remand is held in a prison or detention centre or held under house arrest. Varying terminology is used, but "remand" is generally used in common law jurisdictions and "preventive detention" elsewhere. However, in the United States, "remand" is rare except in official documents and "jail" is instead the main terminology. Detention before charge is commonly referred to as custody and continued detention after conviction is referred to as imprisonment.

The Penal Law of the State of New York combines justification and necessity into a single article, Article 35. "Defense of Justification" comprises sections 35.05 through 35.30 of the Penal Law. The general provision relating to necessity, section 35.05, provides:

§ 35.05 Justification; generally.

Unless otherwise limited by the ensuing provisions of this article defining justifiable use of physical force, conduct which would otherwise constitute an offense is justifiable and not criminal when:

The powers of the police in England and Wales are defined largely by statute law, with the main sources of power being the Police and Criminal Evidence Act 1984 and the Police Act 1996. This article covers the powers of police officers of territorial police forces only, but a police officer in one of the UK's special police forces can utilise extended jurisdiction powers outside of their normal jurisdiction in certain defined situations as set out in statute. In law, police powers are given to constables. All police officers in England and Wales are "constables" in law whatever their rank. Certain police powers are also available to a limited extent to police community support officers and other non warranted positions such as police civilian investigators or designated detention officers employed by some police forces even though they are not constables.

References

  1. ↑ See § 22, at 142, Prosser, William Lloyd (1984). Prosser and Keeton on the law of torts (5 ed.). West Publishing Co. ISBN   0314748806 . Retrieved 6 November 2017.
  2. ↑ "Cervantez v. J.C. Penney Co., 595 P.2d 975, 982 & n.5 (Cal. 1979)". Google Scholar. Retrieved 6 November 2017.
  3. ↑ "The Protection and Recapture of Merchandise from Shoplifters". Northwestern University Law Review. 47: 90. 1952. Retrieved 6 November 2017.
  4. ↑ "Jacques v. Sears, Roebuck & Co., 285 N.E.2d 871, 876 (N.Y. 1972)". Google Scholar. Retrieved 6 November 2017.
  5. ↑ "Wal-Mart Stores, Inc. v. Resendez, 962 S.W.2d 539 (Sup. Ct., Tex., 1998)". Google Scholar. Retrieved 6 November 2017.
  6. ↑ "People v. Jones, 393 N.E.2d 443, 445 (N.Y. 1979)". Google Scholar. Retrieved 6 November 2017.; "State v. Hughes, 598 N.E.2d 916, 918 (Ohio C.P. 1992)". Google Scholar. Retrieved 6 November 2017.
  7. 1 2 3 See § 120A Restatement (second) of Torts. American Law Institute. 1965. ISBN   0314012710 . Retrieved 6 November 2017.
  8. ↑ William L. Prosser, Proceedings of the 34th Annual Meeting of The American Law Institute, 1957 A.L.I. PROC. 283 (remarks of Mr. William L. Prosser, Reporter)
  9. ↑ "Durante v. Fairlane Town Ctr., No. 05-1113, 201 F. App'x 338, 342 (6th Cir. Oct. 18, 2006) (unpublished)" (PDF). United States Court of Appeals for the 6th Circuit. Retrieved 6 November 2017.
  10. ↑ See § 101, 103, Restatement (second) of Torts. American Law Institute. 1965. ISBN   0314012710 . Retrieved 6 November 2017.
  11. ↑ "Moffatt v. Buffums', Inc., 69 P.2d 424 (Cal. Dist. Ct. App. 1937)". Google Scholar. Retrieved 6 November 2017.
  12. ↑ Christman, Steven M.; Mark, Jillian M. (19 May 2014). "Guidelines on Dealing With Suspected Shoplifters". New York Law Journal. Retrieved 6 November 2017.
  13. ↑ Robert A. Brazener, Annotation, Construction and Effect, in False Imprisonment Action, of Statute Providing for Detention of Suspected Shoplifters, 47 A.L.R. 3d 998 (1973)
This page is based on this Wikipedia article
Text is available under the CC BY-SA 4.0 license; additional terms may apply.
Images, videos and audio are available under their respective licenses.