How to legally detain a shoplifter

How to legally detain a shoplifterWhat Happens if You’re Caught Shoplifting?

If a store owner suspects someone of shoplifting, the owner may decide to detain that person until law enforcement (or if the person is a minor, his or her parent or guardian) arrives. Shop owners are often justified in detaining suspected shoplifters, especially if the shop owner has proof of the offense, like surveillance video or finding hidden merchandise on the individual.

What Is Shoplifting?

Shoplifting is a form of larceny or theft. Larceny or theft occurs when a person takes property or something of value without the permission of the owner. In a store, for the purposes of shoplifting, the owner of the goods in the store could either be the owner of the business or the manager of the store. Shoplifting therefore occurs when a person takes an item of value from the store with the intent to permanently deprive the store of the goods. If a store owner or manager catches someone shoplifting, he or she has the right to detain that person while awaiting law enforcement or other authority.

Different states may have different terminology to describe shoplifting. Some states may charge shoplifting under general theft or larceny statutes, or may have specific criminal statutes that govern larceny or theft in a store. The age of the shoplifter may also govern what criminal charges are made and the potential penalties that can be imposed for a conviction.

The Citizen’s Arrest

In the U.S., a non-police officer citizen has the right to detain someone suspected of a crime. Most people do not try to effect a citizen’s arrest, instead merely contacting law enforcement and allowing police officers to find and detain the suspect. However, shop owners or managers do have the right to detain someone suspected of committing a crime in the store for as long as it takes for law enforcement to arrive to question or arrest the suspect.

Why Store Owners Detain People for Shoplifting

A store owner or manager may choose to detain someone on suspicion of shoplifting if the owner or manager has collected evidence that leads him or her to believe that the person being detained has tried to steal property from the store. Store owners and managers often rely on surveillance video to support their allegation of shoplifting. Accused shoplifters who are detained in the store may try to argue that they did intend to pay for the goods on their person. But surveillance footage can demonstrate that the individual took actions consistent with an intent to take merchandise without paying for it, such as concealing goods in a bag or under clothing. A store owner or manager may detain a person for shoplifting if the local authorities have a strong policy of prosecuting shoplifting crimes. The store may detain someone the owner or manager suspects of repeated incidents of shoplifting. Detaining a person for shoplifting can also have a strong deterrent effect, as potential shoplifters may avoid stores that are effective in catching shoplifters in the act and have a policy of detaining them and turning them over to law enforcement.

Contact an Experienced Moorestown Criminal Defense Lawyer About Your Shoplifting Charges in New Jersey

Were you arrested or charged with shoplifting in New Jersey? The consequences of a conviction could be severe, leaving you with a permanent criminal record and possibly even sending you to jail. That is why you need to speak with a qualified criminal defense attorney as soon as possible about your case. The lawyers at Attorneys Hartman, Chartered have successfully represented clients charged with shoplifting in Marlton, Medford, Mount Laurel, Haddonfield, and throughout New Jersey. Call (856) 235-0220 or fill out the online contact form to schedule a consultation with a member of our legal team. We have an office conveniently located at 68 E. Main St., Moorestown, NJ 08057.

The articles on this blog are for informative purposes only and are no substitute for legal advice or an attorney-client relationship. If you are seeking legal advice, please contact our law firm directly.

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"Shoplifting" generally refers to the theft of merchandise from a store or place of business. Shoplifting is a type of larceny, which simply means taking the property of someone else without their permission, and with the intent to permanently deprive the owner of the property taken.

Though states may punish shoplifting under their general larceny or theft statutes, many states have enacted statutes to specifically address shoplifting. States may refer to the crime by different names, including "retail theft" and "concealment of merchandise."

Elements of Shoplifting

Each state’s laws vary, but generally shoplifting offenses include two basic elements:

  1. Willfully concealing or taking possession of items being offered for sale; and
  2. The intent to deprive the items’ rightful owner (typically the store) of possession of the items, without paying the purchase price.

Crucially, this means that in most states, one can break shoplifting laws without attempting to get out of a store with stolen goods. Simply concealing merchandise, inside or outside the store, will often be enough. One must have the intent to take the item from the store; however, many states consider the act of concealing merchandise to be evidence of intent.

In addition to hiding an item to avoid paying for it, shoplifting laws also make it illegal to take actions to avoid paying the full purchase price for an item. This can include altering price tags, manipulating merchandise, and putting goods into different containers or packaging to avoid paying all or part of the purchase price.

Severity of Shoplifting Charges

Like charges for other types of theft, the severity of shoplifting charges generally depends on the value of the goods involved. If firearms, explosives or incendiary devices are shoplifted, the severity of charges increases in many states.

States laws often include a range of charges, and can allow prosecutors discretion in deciding which charges to pursue in a given case. In many states, the range of shoplifting charges runs from a low level "infraction," to misdemeanor, up to differing degrees of felony charges. In some states, any shoplifting offense will be charged as at least a misdemeanor.

Often, the prosecutor will be able to choose between multiple levels of charges. Prior criminal convictions, specifically prior theft convictions, regularly play a large part in the prosecutor’s decision of which charge to pursue. In some states, prior theft convictions automatically result in a more severe charge.

Typically, infractions result in a fine. Depending on the state, misdemeanor charges may result in jail time (less than one year), probation and/or a fine. Felonies may result in a longer jail sentence, probation and/or a larger fine.

State laws vary widely in the severity of shoplifting charges. In some places, any shoplifting offense may result in a jail sentence.

In-Store Detention of Shoplifters

While there is such thing as a citizen’s arrest, private citizens generally may not legally hold people against their will. Doing so opens the door to civil and even criminal liability for false imprisonment. However, many states have enacted statutes specifically authorizing stores and their employees to detain suspected shoplifters in certain circumstances. These laws serve to protect the stores from lawsuits claiming false imprisonment or false arrest.

Though these laws vary, store owners and their employees generally are allowed to detain an individual when they have probable cause to suspect shoplifting. However, any such detention of a suspected shoplifter must be reasonable in length and manner. Detentions without probable cause, for an unreasonable amount of time, or in an unreasonable manner may leave the store open to liability for false imprisonment and possibly other claims.

What constitutes probable cause to suspect shoplifting comes down to case by case specifics. Mere suspicion typically will not suffice. Most states require that the store or its employees have evidence which would lead a reasonable person to believe that shoplifting had occurred or was in progress. If the store bases its detention of a suspected shoplifter on information from a non-employee informer, that informer must have a reasonable basis for suspecting shoplifting.

Whether a detention is considered unreasonable is determined on a case by case basis, but there are factors that can nudge the detention into unreasonable territory quickly. The three most common factors are the length of detention, the purpose of the detention, and the force that was used. A excessively long detention continued for the purpose of securing a confession or a release of store liability, or the use of excessive force would be considered unreasonable under many states’ laws. An unreasonable detention could leave the store and its employees open to liability for false imprisonment and possibly other claims, such as assault or battery.

Get Legal Help with Your Shoplifting Charges

Depending on the laws of your state and specific factors such as the value of any items shoplifted, if you’re facing shoplifting charges they could be treated as infractions, misdemeanors or felonies, and could result in incarceration, probation and/or a fine. Because of these possibilities, you’ll want to learn more about your specific situation by talking to a criminal defense attorney near you today.

They can only forcibly detain you if they make a citizen’s arrest, and for that they have to have evidence you committed an offence. A shop can legally ban you from the premises without evidence of a crime since private firms can choose who they do business with.

What do you do if you see someone shoplifting as an employee?

Following these ten steps will ensure that you minimise your risks when making a citizen’s arrest.

  1. Make sure you see the person take the item.
  2. Confront the shoplifter.
  3. Ask the shoplifter to accompany you back to the store office.
  4. Balance the risks.
  5. Use reasonable force to detain the shoplifter.
  6. Call the police.

Can store employees detain you?

Though these laws vary, store owners and their employees generally are allowed to detain an individual when they have probable cause to suspect shoplifting. Most states require that the store or its employees have evidence which would lead a reasonable person to believe that shoplifting had occurred or was in progress.

Who was the journalist wrongly accused of shoplifting?

A Sunday morning shopping trip turned into a nightmare for journalist Terence Blacker when he was wrongly arrested for shoplifting. Richard Colbey.

Why was a woman arrested for shoplifting from another store?

Why: Suppose a woman purchased a sweater at another store a few minutes before coming into your store to look for a matching pair of pants. The LP officer happens to observe this woman holding up the sweater (with tags clearly visible) against several pairs of pants in your store.

What was the sentence for shoplifting in Grahamstown?

THE STATE Respondent [1] The appellant was charged with, and pleaded not guilty to common law theft (shoplifting) in the Grahamstown Magistrates’ Court but was found guilty as charged on 15 June 2016. She was sentenced to pay a fine of R1,000.00 or serve a prison sentence of four months, wholly suspended for three years on the usual conditions.

Do you get paid for being involved in shoplifting?

The company has not, though, offered any compensation. Indeed, the store has suggested that being involved in incidents like this is a price that people should be willing to pay to help support the fight against shoplifting. That, though, is not the view the law takes.

What happens if you are charged with shoplifting for the first time?

Generally, a first offense shoplifting charge will be issued as a municipal ordinance violation. For such convictions, there is no possibility of a jail sentence. It is not a criminal offense. Rather, the court may impose only a civil forfeiture.

Who is the criminal lawyer for shoplifting in Wisconsin?

Jeffrey W. Jensen is a criminal defense lawyer in Milwaukee, Wisconsin. He is also a criminal appeals lawyer in Wisconsin. Shoplifting: Now what? Five things you should do if you have been charged with retail theft.

What is the definition of accidental shoplifting?

Accidental shoplifting occurs when the person taking merchandise from the store did not really intend to deprive the store owner of their merchandise. The whole issue on whether shoplifting is accidental revolves on “intent.”

Can a shoplifter go to jail in California?

It is not a criminal offense. Rather, the court may impose only a civil forfeiture. These forfeitures, though, can be very hefty depending upon the municipality. The State may also charge a shoplifter criminally; that is, with an offense that may result in jail time.

False imprisonment is both a tort and a crime in Nevada. That means that if you unlawfully detain someone, you could be arrested and charged with a crime (either a gross misdemeanor or a felony, depending on the circumstances), or sued for damages by the person you imprisoned.

Criminal false imprisonment is different than civil false imprisonment. To be convicted of false imprisonment, the prosecutor has to prove the following three elements:

  1. Unlawful violation of the personal liberty of another that
  2. Consists of confinement or detention
  3. Without sufficient legal authority.

Civil false imprisonment, on the other hand (civil meaning it can be the subject of a lawsuit, i.e. one person suing another), requires that the following elements be proven:

  1. The defendant acts intending to confine the other or a third person within boundaries fixed by the actor,
  2. His act directly or indirectly results in such confinement of the other, and
  3. The other is conscious of the confinement or is harmed by it.

False imprisonment often arises in the context of a store owner who detains a suspected shoplifter. Indeed, in a scenario where a storeowner detains a customer while the police are called, each of the civil elements of false imprisonment might be met, which could give the shoplifter a reason to bring a lawsuit. And in fact, shoplifters have sued merchants for their shoplifting-related detention.

In response to these cases, and to provide authority to shopkeepers to protect themselves against theft, many states have implemented one form of shopkeeper’s privilege or another, which is an affirmative defense that grants a shopkeeper immunity from false imprisonment liability if the detention of a suspected shoplifter meets certain criteria. Nevada has a merchant’s statute that protects shopkeepers who detain suspected shoplifters that allows detention under the following circumstances:

A shopkeeper may detain someone in the following circumstances, then:

  1. Merchant must have reason to believe merchandise has been wrongfully taken
  2. Merchant must be able to recover the merchandise by taking the person into custody
  3. The detention must be for the purpose of
    1. recovering stolen goods or
    2. reporting the shoplifting to the police

    Only if the “taking into custody and detention are unreasonable under all the circumstances” can the shoplifter be held “criminally or civilly liable for false arrest, false imprisonment, slander, or unlawful detention.”

    This immunity only applies if the shopkeeper displays “in a conspicuous place … a notice in boldface type clearly legible and in substantially the following form:”

    Any merchant or his or her agent who has reason to believe that merchandise has been wrongfully taken by a person may detain such person on the premises of the merchant for the purpose of recovering the property or notifying a peace officer. An adult or the parents or legal guardian of a minor, who steals merchandise is civilly liable for its value and additional damages. NRS 597.850, 597.860 and 597.870.

    Note that the statute does not require that the person detained actually be a shoplifter. The merchant immunity only requires that the merchant believe merchandise is wrongfully taken, and it provides what would constitute good cause for that merchant’s belief: “A merchant is presumed to have reason to believe that merchandise has been wrongfully taken … if the merchant observed the person concealing merchandise while on the premises.”

    There may also be other reasons a merchant has a reason to believe merchandise has been wrongfully taken.

    In most cases, a shoplifter is not going to be protected from being detained, which is on balance with society’s abhorrence of theft. We’re willing to sacrifice personal freedoms of even suspected shoplifters to help catch and deter actual and would-be thieves.

    How Long Can a Store Legally Detain a Shoplifting Suspect

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    Re: How Long Can a Store Legally Detain a Shoplifting Suspect

    You were being detained; no, you had no right to get up walk around and chat with friends.

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    Re: How Long Can a Store Legally Detain a Shoplifting Suspect

    Let’s leave the police report aside for the moment. Surely you have some sense of how long you were detained from your own memory — from looking at a clock, your watch, your phone. So were you detained for four hours or not?

    I very much doubt that the store didn’t call the police for four hours. That is something you should be able to discern from the police report’s business record elements — the time they received the call from the store, the time they arrived in response to the call, and the time they either cited or arrested you (and your girlfriend?) What is the actual time line?

    The full, current statute:

    In any action for false arrest, false imprisonment, unlawful detention, defamation of character, assault, trespass, or invasion of civil rights, brought by any person by reason of having been detained on or in the immediate vicinity of the premises of a retail mercantile establishment for the purpose of investigation or questioning as to the ownership of any merchandise, or a motion picture theater for the purpose of investigation or questioning as to an unauthorized audiovisual recording of a motion picture, it shall be a defense to the action that the person was detained in a reasonable manner and for not more than a reasonable time to permit such investigation or questioning by a police officer or by the owner of the retail mercantile establishment or motion picture theater, the owner’s authorized employee, or agent, and that such police officer, owner, employee, or agent had reasonable grounds to believe that the person so detained was committing or attempting to commit larceny of merchandise or unauthorized audiovisual recording of a motion picture on the premises.

    As used in this section:

    "Motion picture theater" means a movie theater, screening room, or other venue in use primarily for the exhibition of a motion picture at the time of the unauthorized audiovisual recording of a motion picture.

    "Reasonable grounds" includes, but is not limited to, knowledge that a person has concealed possession of unpurchased merchandise of the retail mercantile establishment or has made an unauthorized audiovisual recording of a motion picture taken at a motion picture theater.

    "Reasonable time" means the time necessary to permit the person detained to make a statement or to refuse to make a statement, and the time necessary to examine employees and records of the mercantile establishment or motion picture theater relative to the ownership of the merchandise or making of an unauthorized audiovisual recording of a motion picture.

    "Retail mercantile establishment" means a place where goods, wares, or merchandise are offered to the public for sale.

    If you are looking for the latest legal information relating current Coronavirus laws in New Zealand, check out our Coronavirus and the Law section.


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    The shop’s powers and your rights

    Does a shop have the right to search my bag?

    Shop staff have no right to search your bag, even if they have a sign by the entrance or inside the store that says they can do this. If they ask to search your bag you can refuse. If they then use force to search your bag, they may be committing a criminal assault, and you may also have a civil claim against them for damages (compensation).

    However, shops can require you to leave your bag outside the store before you come in. They can also require you to leave the shop if you’re inside.

    Even if shop staff or security guards carry out a lawful “citizen’s arrest” for shoplifting and forcibly keep you in the shop until police arrive (see below), they still have no right to search you or your bag.

    Can a store stop me from leaving if they think I’ve been shoplifting?

    Not usually. Shop staff or security guards can forcibly prevent you leaving the shop only in two kinds of situations:

    • expensive items – if the things they suspect you of stealing are worth $1,000 or more (a higher-end laptop for example), or
    • night time – if it’s between 9.00 pm and 6.00 am (when you’re in an all-night service station for example).

    They also need to have “reasonable and probable grounds” for believing that you’ve stolen the items. A vague suspicion won’t be enough.

    In these cases, the shop staff or guard would be carrying out what’s sometimes called a “citizen’s arrest”, and they can use reasonable force to hold you. However, they still don’t have the right to search you or your bag without your consent.

    If neither of those situations justifying a citizen’s arrest apply, the shop can ask you to remain but you don’t have to do so – you can simply walk away. The shop can then call the police if they choose to. If you do agree to staying or going back to the shop, you can change your mind at any time. You also don’t have to give them any information.

    If the shop staff or security guards forcibly hold you when they’re not entitled to – for example, by locking you in a room – they may have committed a criminal assault. You may also have a civil claim against them for damages for false imprisonment or civil assault or both.

    Can the shop make me pay them a fee or fine on top of the cost of the goods?

    Some stores send out “civil recovery notices” to shoplifters, saying they have to pay a flat fee within a set time – for example, a fee of $275 to be paid within 21 days. It’s doubtful whether these notices are legally enforceable in themselves, and you can refuse to pay them.

    You don’t have any legal responsibility to pay the amount stated in the notice unless and until the store proves a civil claim against you for that amount in the Disputes Tribunal or the District Court. To do that they would need to show that in your particular case you caused the specific loss they’re claiming, as opposed to simply claiming a “blanket” fee from all shoplifters.

    If a store does obtain a decision in their favour from the Tribunal or the courts, they can then use the available measures to enforce the decision – such as getting a warrant from the court for your property to be seized so they can recover the amount of their claim.

    Can a shop give me a trespass notice to prevent me entering?

    Yes. A shop is private property and the owner or manager can refuse to allow you to enter or can ask you to leave once you’re inside, so long as they don’t breach the anti-discrimination laws in doing this ( see the chapter “Discrimination” ). If you stay in the shop after you’ve been told to leave, you’re committing the criminal offence of trespass.

    While you’re in the shop or after you’ve left, the shop can warn you to stay out of the shop, if they have good reason to think you’re likely to come back. The warning doesn’t have to be in writing. If you then go back into the shop within the next two years after the warning, this is a criminal offence. When the shop gives you a trespass warning, people sometimes call this “trespassing” you.

    The courts can also give you a warning to stay out of the shop if you’re convicted of trespassing, and the same two-year ban will apply.

    If you commit any of those trespass offences, you can be fined up to $1,000 or jailed for up to three months.

    Note: If you go back into the shop after getting a trespass warning and you shoplift again, you could also be charged with “burglary”, rather than just being charged with trespass and theft. This is because you no longer have a legal right to enter the shop (unlike other members of the public).

    If you are sure that you have seen someone shoplifting, you have the right to make a citizen's arrest and use reasonable force to detain the shoplifter. However, bear in mind that the police advise that a citizen's arrest not be made except in extreme circumstances.

    Importance of minimising risk when making a citizen's arrest

    In Australia a member of the public, including a shop owner or employee, can make a “citizen's arrest” if a person has just committed an offence or is in the process of committing an offence. Following these ten steps will ensure that you minimise your risks when making a citizen's arrest.

    1. Make sure you see the person take the item. Courts have confirmed that a member of the public cannot detain someone on a suspicion. You must be satisfied that an offence has actually been committed. A citizen's arrest must also be made at the time of the offence, it cannot be made the day after or a few days later.
    2. Confront the shoplifter. Introduce yourself to the shoplifter, show your identification and explain that you wish to talk to them about items they may have taken from the store.
    3. Ask the shoplifter to accompany you back to the store office. If you speak in a firm, confident and polite manner most shoplifters will cooperate.
    4. Balance the risks. You should consider whether the shoplifter poses a danger to any customer or employee in the store. You should note that if an employee is injured in the course of carrying out a citizen's arrest, the employee may have a civil claim for damages against the shop owner, particularly if the employee has not received adequate security training.
    5. Use reasonable force to detain the shoplifter. If the shoplifter refuses to accompany you to the store office, you can tell the shoplifter why they are being detained and use reasonable force to detain the shoplifter. Reasonable force is any force that a reasonable person in your situation would use. However, what seems to be reasonable force to you may not be what the courts deem to be reasonable.
    6. Call the police. You should advise the shoplifter that the police are being called and call the police as soon as possible. The person making the arrest is under an obligation to present the shoplifter to the police as soon as possible so they can be dealt with according to the law.
    7. Ask the person to hand over stolen property. You should ask the shoplifter to hand over any property that does not belong to them. If the shoplifter refuses, you are not allowed to conduct a search of their person or any property they have in their possession. If a search of their person is conducted against their wishes, you could find yourself charged with assault.
    8. Do not leave the shoplifter unattended. Leaving the shoplifter unattended may give them an opportunity to dispose of any stolen items before the police arrive.
    9. Make notes about the incident. You may be required to give evidence about the incident in court, so you should make notes about what you saw, the time, what you did and what was said. The police will rely on your observations to determine whether there is enough evidence to arrest and charge the shoplifter.
    10. Release the shoplifter. You can release the shoplifter at any time. However, if the shoplifter is under 18 years of age, you should only release them into the care of the police, their parent or guardian.

    Be careful to avoid assault charges and false imprisonment claims

    If a citizen's arrest is made, you must remember that you will owe a duty of care to the person you are detaining. If you use too much force, the shoplifter could bring charges of assault against you and you may be called to court to justify your actions. If an incident is investigated and the shoplifter is not charged, you could be at risk of a civil claim for damages for false imprisonment.

    The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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