Probable Cause Steps
To establish a solid base for probable cause, and prevent false arrest claims, there are six universally accepted steps that a merchant should follow before detaining someone suspected of shoplifting:
You must see a shoplifter enter your store or approach a display and see that the customer does not have any merchandise in their hand or that they haven’t retrieved an item from their own purse, bag, or pocket. This step prevents a common mistake that occurs when a customer brings an item into the store for comparison purposes or for a refund or exchange and does not check in at the service desk first. If you detain someone after seeing them replace their own merchandise into their pocket or bag, you could be subject to a false arrest claim even though it is a seemingly honest mistake. Many false arrest claims are filed because retailers missed this important, but basic, first step.
You must see the shoplifter select the merchandise. Store employees can misunderstand when they see a customer innocently put an item into their pocket or purse and not realize that the customer had brought the item into the store with them for comparison purposes. If you can positively and honestly state that you saw the shoplifter remove your merchandise from your display prior to concealing it, then you have a strong foundation for proof of shoplifting.
You must see the shoplifter conceal, carry away, or convert your merchandise. This includes concealment in bags, strollers, or on a person. Shoplifting can occur by wearing articles in plain view once the tags are removed. Shoplifting can occur by conversion, for example, when consuming food prior to being purchased. An exception to the observation rule is inside a fitting room where observation is impossible. Once inside a fitting room store merchandise can be concealed almost anywhere. The important factor is to know what items go into the fitting room and what items don't come out in plain view. Of course, the fitting room must be checked beforehand to see if it is clear of merchandise and after the suspected theft exits to see that the missing items were not simply discarded.
You must maintain continuous surveillance of the shoplifter. If your store policy is to detain and apprehend all shoplifters, then you must adhere strictly to this step. Experienced shoplifters will try to dump the concealed merchandise, without your knowledge, if they believe they have been observed. Many states have adopted merchant statutes to protect the retailer against this trick. If you followed steps 1-3 and then lost sight of the shoplifter for several minutes you may be surprised when you detain them and they are no longer holding your merchandise.
The best approach, if you lose sight of a shoplifter, is to make your presence known to the shoplifter and give them a chance to dump your merchandise and leave your store without a word being said. Sometimes, loss prevention personnel will walk nearby and turn up their mobile radios to alert the shoplifter that they are plain-clothes security. Another technique is to make a storewide P.A. announcement for security to come to the Children’s department, for example, which is where the shoplifter happens to be standing. They will usually dump your merchandise immediately and hopefully never return.
You must see the shoplifter fail to pay for your merchandise. Typically, a shoplifter will walk out of your store, past all cash registers, without making any attempt to pay for the concealed merchandise. This is an important element to prove "intent" later in court, if necessary. Sometimes, shoplifters will go through the checkout line and pay for other items but not for the concealed item. It is important to observe that the concealed item is not retrieved and paid for at the checkout. It is also important to verbally confirm with the cashier that the concealed item was not paid for either. For example, a shoplifter may get a change of heart and tell the cashier that they consumed a candy bar worth .75 cents and the cashier rings it up.
If you don’t inquire first, you could detain the shoplifter and have some exposure to litigation. Another example is when you observe a customer removing garment tags and dressing their child in new clothes and place the old clothes into a large bag. When the suspected shoplifter proceeds to the cashier, and without you knowledge, they present all the price tags and pay in full. Another example is when a customer at a grocery store tells the cashier to charge for a carton of cigarettes or a newspaper. After the transaction, the customer leaves the check stand a selects the cigarettes or newspaper from the stand in the lobby and exits, seemingly without paying.
Sometimes there is a reasonable explanation for removing merchandise, seemingly without paying, so you must be aware of the practices within various retail settings that would allow this to occur. Remember, some shoplifters are clever and will purchase an item, obtain a receipt, and dump it in their car. Next they return to the store to steal the exact same item. If stopped they can produce a receipt and even get the cashier to swear the item was purchased. I've seen the same item stolen five times using this technique until we busted him.
You must approach the shoplifter outside of the store. Although not technically necessary, following this step eliminates all possibility that the shoplifter still intends to pay for the stolen product. A few courts have held that detaining someone for shoplifting inside a retail store does not establish the criminal intent of theft. However, in several states shoplifters can be detained once they have concealed the merchandise. When approaching a shoplifter outside of the store always have a least one more trained employee as a backup and witness.
There is safety in numbers and most shoplifters will cooperate if they believe fighting or running is futile. Always have at least one more loss prevention officer present than the number of shoplifters. When you approach a shoplifter outside it is important to identify yourself clearly and your authority for stopping them. Plain-clothes loss prevention agents carry badges or official looking ID cards so the shoplifter has no doubt who they are. Most shoplifter apprehensions should be accomplished with no force or if necessary, minimal force like touching or guiding. Professional loss prevention agents sometimes will use handcuffs to take someone into custody, if they are first trained how and when to legally apply them properly.
If you follow these six steps, you should have no problem with proving criminal intent to shoplift and be able to establish probable cause to detain a shoplifter. You should also be well insulated from civil liability if you followed these six steps correctly. Remember, the steps recommended in this article exceed most state laws and are not always required for successfully prosecuting a shoplifter. However, the steps are designed to provide consistency in procedures and training for loss prevention professionals and reduce civil liability for the retailer.
For more Information
Shoplifting Probable Cause to Arrest
Books on Security Management and Liability
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