Shoplifting Probable Cause

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 What Is Probable Cause?

Probable cause is the reasonable belief that an individual will commit or has committed a crime or another violation. If law enforcement does not first establish probable cause, any criminal search of the individual’s body, belongings, or property will be deemed unreasonable.

This means that anything that is revealed in the search will most likely not be usable when trying to convict the defendant. In order for a reasonable belief to exist, there must be factual evidence to support it.

In general, probable cause requires more than a mere suspicion that an individual committed a crime but not enough to prove that the individual is guilty of a crime beyond a reasonable doubt. As noted above, the belief must be based on factual evidence and not on simple suspicion.

One common example of this issue would be a situation in which a law enforcement officer pulls an individual over on the highway. Sufficient evidence to cause a law enforcement officer to have probable cause to be believe an individual is driving while under the influence may include:

  • Swerving;
  • Speeding;
  • Braking suddenly; or
  • Driving erratically.

Law enforcement may pull an individual over based on their swerving, which provides them with probable cause for the stop. If, however, a driver is driving normally and is obeying all of the traffic rules, law enforcement may not be able to pull the individual over for drunk driving.

This is because they have no probable cause to believe the individual driving under the influence. Generally, the court issuing a warrant will employ a test that is designed to determine whether probable cause exists.

This test is based on whether an objective individual of reasonable intelligence would believe that the circumstances would indicate that the individual who was arrested or detained has committed or was in the process of committing a crime. In situations where law enforcement officers are permitted to make a warrantless arrest or conduct a warrantless search or seizure, probable cause is still required.

What Is Probable Cause in a Shoplifting Case?

The majority of states have laws that permit shopkeepers and merchants to detain customers who are suspected of shoplifting. This is often referred to as the Merchant’s Privilege.

This privilege allows a shopkeeper on their security staff to make a citizen’s arrest and detain the customer until law enforcement arrives. However, as with any type of arrest, the shopkeeper needs to have probable cause that the customer or patron has engaged in shoplifting.

Probable cause in this setting means that the shopkeeper is reasonably certain that the individual has shoplifted items from their store. The shopkeeper’s arrest is required to be based on actual facts and not on opinions, mere assumptions, or jumping to conclusions.

If the shopkeeper fails to establish probable cause before making an arrest, it may lead to false imprisonment or false arrest charges for the shopkeeper.

How Is Probable Cause Established for Shoplifting?

A shopkeeper may go through certain basic steps to establish probable cause for shoplifting. Although shoplifting laws may vary by state, following 6 steps can make it easier for the merchant to establish probable cause for shoplifting, including:

  • The shopkeeper must observe the suspect approaching the merchandise: It is important that the shopkeeper sees the customer enter the store without any products with them. The shopkeeper should ensure that the shoplifter is not bringing an item to the store for a return or an exchange;
  • The shopkeeper must observe the suspect selecting the merchandise: One common mistake that occurs is where a shopper is mistaken for shoplifting because they put their own property in their pocket;
  • The shopkeeper must observe the person carrying away, concealing, or consuming the merchandise: Shoplifting can occur when the individual places the unpaid merchandise in their bag or pocket, or if they have consumed, or eaten, food without paying for it. It is also common for shoplifters to remove tags from clothing and walk out of the store wearing the clothes;
  • The shopkeeper’s observation of the suspect must be continuous and uninterrupted: One common mistake occurs when observation is broken, giving the suspect a chance to dump the merchandise. Legal problems may arise if the individual is detained or searched and no product is found on them;
  • The shopkeeper 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 concealed;
  • The shopkeeper must approach the suspect outside the store grounds: This makes it more certain that the individual had the intent to steal the item. Some state laws allow merchants to approach shoplifters while still inside the store as 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 a shopkeeper makes a detainment or an arrest without first establishing probable cause, they may face false imprisonment or false arrest charges. These are serious violations that may result in both civil and criminal consequences.

For example, a shopkeeper may be required to pay criminal fines for violating the law and they may be required to reimburse the customer for any losses caused by the false imprisonment. It is important to note that a shopkeeper’s arrest for shoplifting should be accomplished with as little force as necessary or, if possible, using no force at all.

If force is used unreasonably, false imprisonment charges may be increased from a misdemeanor to a felony charge.

What Can I Do if I Am Falsely Accused of Shoplifting?

A security officer is only permitted to hold an alleged shoplifter for a reasonable period of time. Although the term reasonable time is not defined specifically, it is typically understood to mean a period of time that is sufficient for a store security guard to undertake an investigation, for example, questioning the suspected thief, and wait for law enforcement to arrive at the site.

The time that it takes for a law enforcement officer to arrive at the business will be regarded as within a reasonable time range for holding the suspect so long as law enforcement is quickly informed once a retail security guard detains a suspected shoplifter.

In contrast, it may be considered unreasonable to retain a suspected thief for a prolonged period of time if the store security guard failed to call the police right away after arresting the suspect and is unable to provide a valid explanation.

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

Shopkeepers and merchants have numerous legal rights when it comes to protecting the merchandise and stores. Many shopkeepers, however, may not be clear regarding legal concepts such as probable cause.

If you are a merchant and need assistance understanding these important issues, you should contact a qualified criminal defense lawyer as soon as possible. Your lawyer can answer your legal questions and can defend you in court if a lawsuit is filed against you or your business.

If you believe you have been subjected to false imprisonment by a shopkeeper or merchant, it is important to consult with a lawyer. Your lawyer can advise you regarding reporting the crime or filing a civil lawsuit, if possible.


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