Most states have laws that allow shopkeepers and merchants to detain a customer who is suspected of shoplifting.  This is often known as the “Merchant’s Privilege”, which basically allows the shopkeeper or their security staff to make a citizen’s arrest and detain the customer until the police arrive.  However, as in any arrest, the shopkeeper needs to have “probable cause” that the customer or patron has engaged in shoplifting. 

Probable cause means that the shopkeeper is reasonably certain that the person has shoplifted items from their store.  The shopkeeper’s arrest must be based on actual facts, and not on mere assumptions, opinions, or “jumping to conclusions”.  Failing to establish probable cause before making an arrest can lead to false imprisonment or false arrest charges for the shopkeeper.

How is Probable Cause Established for Shoplifting?

Shopkeepers can go through some basic steps to establish probable cause for shoplifting.  While shoplifting laws can vary by state, following these six steps makes it easier for the merchant to establish probable cause for shoplifting:

  • You must observe the suspect approaching your merchandise:  It’s important that you see the customer enter your store without any of your products with them.  You should make sure that the shoplifter isn’t bringing an item to your store for a return or exchange.  
  • You must observe the suspect selecting your merchandise:  A common mistake that occurs is where a shopper is mistaken for shoplifting because they put their own property in their pocket. 
  • You must observe the person carrying away, concealing, or consuming your merchandise:  Shoplifting can occur when the person places the unpaid merchandise in their bag or pocket, or if they have consumed (eaten) food without paying for it.  It’s also common for shoplifters to remove tags from clothing and walk of the store wearing the clothes
  • Your observation of the suspect must be continuous and uninterrupted:  A common mistake occurs when observation is broken, giving the suspect a chance to “dump” the merchandise.  Legal problems can arise if the person is detained or searched and no product is found on them
  • You must observe the shoplifter failing to pay for the product:  Many shoplifters simply leave the store without approaching the cash registers.  Other shoplifters may pay for some items, but not the ones they have concealed. 
  • You must approach the suspect outside the store grounds:  This makes it more certain that the person had the intent to steal the item.  Some state laws allow merchants to approach shoplifters while still inside the store, so long as they have concealed merchandise on their person or in their bag

What are the Legal Penalties for False Imprisonment or False Arrest?

If the shopkeeper makes an arrest or detainment without establishing probable cause, they could face charges for false imprisonment or false arrest.  These are very serious violations that can result in both criminal and civil consequences.  For example, the shopkeeper may have to pay criminal fines for violating the law, and they may have to reimburse the customer for any losses caused by the false imprisonment. 

It’s important to note that a merchant’s arrest for shoplifting should be accomplished with as little force as is necessary, or preferably, with no use of force at all.  If force is used unreasonably, false imprisonment charges can go from a misdemeanor to a felony charge. 

Do I Need a Lawyer for Assistance With Probable Cause in a Shoplifting Case?

Merchants and shopkeepers have many legal rights when it comes to protecting their stores and merchandise.  However, many shopkeepers may not be clear when it comes to legal concepts like probable cause.  If you are a merchant and need assistance on such issues, you should contact a qualified criminal defense attorney immediately.  Your lawyer will be able to answer your legal questions, and can defend you in court if a lawsuit is filed against you or your business.