Shoplifting: Detention and Arrest
By Chris E McGoey
In an effort to prevent thieves from walking out the door without paying for merchandise, sometimes it becomes necessary to detain and arrest those suspected of shoplifting. Retailers sometimes employ plain-clothes loss prevention agents specially trained to detect, apprehend, and arrest shoplifters. Some retailers believe that arresting shoplifters is the greatest deterrent as the word is spread by store employees and gets out on the street. If a detention and arrest policy is desirable, it is critical for the merchant to understand the local laws of arrest before confronting anyone. Remember that the laws of the state have a different legal impact than store policy. What follows are some good "rule of thumb" guidelines to follow in most situations:
Before detaining anyone, you must establish Shoplifting Probable Cause. 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 deciding to stop someone suspected of shoplifting:
- You must see the shoplifter approach your merchandise
- You must see the shoplifter select your merchandise
- You must see the shoplifter conceal or carry away or convert your merchandise
- You must maintain continuous observation the shoplifter
- You must see the shoplifter fail to pay for the merchandise
- You must approach the shoplifter outside of the store
The decision to approach and confront someone suspected of committing theft should not be taken lightly. It's critical to provide special training to anyone charged with the responsibility of apprehending shoplifters. Some states have "Merchant Statutes" that give the store operator some limited liability protection if they approach a suspected shoplifter in good faith and the stop is based on a reasonable belief that shoplifting had occurred. A merchant statute gives the store operator the right to "detain" someone temporarily either for the purpose of recovering their merchandise and/or for summoning the police. To detain someone, under the statute, means that they are not technically under arrest, but merely being temporarily investigated.
The detention process can evolve into an arrest if the suspected shoplifter is taken into custody for the purpose of arrest. The definition of custody means not being free to leave (i.e. while handcuffed). In jurisdictions that do not have the protection of a merchant's statute, a store operator must make a citizens arrest without any liability protection. In most states, to make a citizens arrest, you must see the crime (misdemeanor) committed in your presence or in the case of a felony committed outside of your presence, you must be certain that the crime actually occurred .
To approach a person suspected of shoplifting will necessarily involve a confrontation. This confrontation can go smooth and professional or become hostile and aggressive. It is a good policy to have extra personnel involved for back-up and for witness purposes. A good rule is to outnumber the suspected shoplifter by a least one. The extra personnel usually prevent the suspect from fighting or attempting to flee. A female back-up is best if a female suspect is being detained.
The approach should always occur from the front, if possible. The store representative should immediately and clearly identify themselves and it is helpful to have some form of identification such as a uniform, or name tag to avoid confusion over who you are or what authority you possess. Plain-clothes loss prevention agents should have an authentic-looking ID card or badge in a wallet to present during the confrontation so not to be confused with a mugger. The presentation of credentials should occur simultaneously with the words "I'm with ACME Stores, and I would like to talk with you about the 'two bottles of ACME wine' in your bag."
You should listen for spontaneous utterances like, "Oh, I forgot to pay for it" to help prove culpability while still outside of the store. The shoplifter should also be asked to return the items while still outside the store, if possible, to further validate the suspicion of theft before return to the store interior.
The detention process starts when the customer is initially confronted. However, an unproductive stop can and should be terminated while still outside, along with a sincere apology for the confusion. If the suspected shoplifter has unpaid merchandise at the time of the detention, ask them to, "please return to the store so we can clear up this matter." If you act professional and with back-up, ninety-eight percent of the time the shoplifter will comply and go anywhere you direct, without fanfare.
When escorting a shoplifter back inside the store, care must be taken to see that the thief does not try to run. Customers and store employees could be at risk if a scared shoplifter decides to escape by running through the aisles of the store towards another exit. To prevent this from occurring, at least two loss prevention agents should walk very close to the suspect while speaking in a calm manner. If the risk flight appears high, the loss prevention agents should consider using holding force to guide the shoplifter or simply hang on to a belt loop. Chasing a shoplifter is not a good policy, especially if you already retrieved your merchandise. Chasing a shoplifter off the property or in a car is never a good idea and can be dangerous.
Excessive force should never be used when apprehending a shoplifter. Initially, holding force should be all that is required to retrieve your merchandise and direct the suspected shoplifter back to a private office. If the customer is cooperative and is either very young or very old or very frail, no force should be necessary. Professional loss prevention agents may use handcuffs to restrain violent or aggressive shoplifters when employee or customer safety is a REAL possibility. Handcuffs should be used with discretion, because all shoplifters do not need to be cuffed. Loss prevention agents must be properly trained to carry handcuffs and know when and how to apply handcuffs. Handcuffs should always be "double-locked" when it is safe to do so.
Excessive force is unnecessary and unlawful and can create exposure to civil liability for negligence. This negligence would include choking, punching, kicking, improper handcuffing, hog-ties, and the intentional application of pain compliance techniques. Extreme foul language, ethnic slurs, and verbal threats of harm will all be considered excessive when a shoplifter is in custody. When handcuffs are applied, the loss prevention agent is responsible for the shoplifter's safety from trips and falls, adequate blood circulation to the hands, and the ability to breathe.
Once you make it to a private office the shoplifter must be processed within a reasonable time period and in a reasonable manner. Sometimes the timing is delayed by slow response time of local law enforcement. There should always be at least two store representatives present at all times and one should be the same sex as the shoplifter for obvious reasons. One of the first steps is to make sure the setting is safe and the shoplifter is not carrying accessible weapons. This is accomplished by a simple external "pat down" or by separating handbags, packages, and other containers from the immediate grasp of the shoplifter. A pat down is not a license for a search and should be conducted by a person of the same sex. Searching pockets and handbags might be illegal in your state, so leave that job for the police upon arrest.
After the safety issues are resolved, you should ask the shoplifter to voluntarily retrieve and return all the stolen merchandise. Depending on your jurisdiction, you may be allowed to question the shoplifter in others you might be required to call the police before questioning. In most States, you are allowed to ask the shoplifter for identification, and complete a written report to help you determine if you will prosecute or not. Most shoplifters will cooperate and hope to be released. In the case of young children, the elderly, or those with diminished mentally capacity, you may wish to release the shoplifter to relatives instead of the police. Check with your company policy and legal department for precise instructions in this area.
Simple requests should be honored for those held in custody, if safe to do so. Handicapped persons should be accommodated because of stairs or footpath issues. If safe, shoplifters can be offered water, prescription medication or restroom access if your merchandise has been recovered. Smoking is not a valid or safe request. Shoplifters can call their attorneys on their own time or from jail. Emergencies of all types should take priority and handled immediately by calling 911. With the exception of very young juveniles, elderly, or obviously ill persons, telephone requests should be delayed until processing has been completed or after the police have been called to eliminate disruption by irate parents, spouses, or friends. If a shoplifter was violent call the police immediately. The shoplifter can make any necessary calls from jail. You may wish to call the parents for juvenile shoplifters. Never release juveniles without being picked up by a capable guardian or the police.
If the store policy is to make detentions and arrests, then written reports are required to record the shoplifting event. These reports will be vital for use later on in both criminal and civil courts. Reports usually include an in-house loss prevention report that captures all the important identification data like name address, date of birth, social security number of the shoplifter. The report will provide a narrative of the facts that establishes the probable cause elements, itemizes all stolen merchandise, lists all witnesses, and includes any contemporaneous statements made by the shoplifter. All reports including the police report or case number, if any, should be kept in a secure file cabinet for a least two years or until the local statute of limitations runs for both criminal and civil filings.
All evidence should be photographed and itemized and either stored in a secure cabinet or returned to stock, if local courts allow for it. If an arrest is warranted, the shoplifter should also be photographed for identification later on and in court. All evidence should be entered into a separate log book and assigned a case number for tracking purposes. You will need these stored items for court. Be sure to bring them along for each court appearance.
Article by Chris E McGoey
Email this article
Printer friendly page
Reprinted with the authorization of Crime Doctor
Chris E. McGoey, CPP, CSP, CAM is an internationally known author, trainer, speaker, and professional security consultant. He is an expert in the fields of security management, crime, and loss prevention.
Crime Doctor is a registered trademarks of Aegis Books, Inc.