POWER TO ARREST (Lesson 22 of 25)

Searching A Suspect Under The Merchant’s Privilege Rule

The Merchant’s Privilege Rule is found in the California Penal Code Section 490.5. Subdivisions (f) and (g) of this statute provide legal authority for a merchant or their employee or agent, including a security officer, to detain persons suspected of shoplifting in a retail store. In part, the law states:

  1. A merchant may detain a person for a reasonable time for the purpose of conducting an investigation in a reasonable manner whenever the merchant has probable cause to believe the person to be detained is attempting to unlawfully take or has unlawfully taken merchandise from the merchant’s premises.
  2. In making the detention a merchant may use a reasonable amount of non-deadly force necessary to protect himself or herself and to prevent escape of the person detained or the loss of property.
  3. During the period of detention any items which a merchant has probable cause to believe were unlawfully taken from the premises of the merchant and which are in plain view may be examined by the merchant for purposes of ascertaining the ownership thereof.
  4. A merchant or an agent thereof, having probable cause to believe the person detained was attempting to unlawfully take or has taken any item from the premises, may request the person detained to voluntarily surrender the item. Should the person detained refuse to surrender the item of which there is probable cause to believe has been unlawfully taken from the premises, or attempted to be unlawfully taken from the premises, a limited and reasonable search may be conducted by those authorized to make the detention in order to recover the item. Only packages, shopping bags, handbags or other property in the immediate possession of the person detained, but not including any clothing worn by the person, may be searched pursuant to this subdivision. Upon surrender or discovery of the item, the person detained may also be requested, but may not be required, to provide adequate proof of his or her true identity.

The important things to remember when working for a retail merchant are:

  1. That a suspected shoplifter can be detained where there is reasonable cause to believe that the suspect has unlawfully taken or attempted to take an item from the store. This is not an arrest, but merely a detention in order to investigate further the reasonable belief that a theft has occurred or was attempted.
  2. That reasonable non-deadly force may be used to carryout the detention where the suspect resists.
  3. That following a request to surrender the item believed taken, you may search their belongings (limited to shopping bags, handbags, and other items) in the immediate possession of the suspect, but not a search of clothing or apparel worn by the suspect.
  4. That following the detention, and if it is established that shoplifting has occurred or was attempted, and if criminal charges are to be pursued, the suspect must be given over to law enforcement authorities. This must occur within a reasonable period of time following detention.
  5. Mall security personnel should be very aware of the fact that they protect mall property and that the individual stores in that mall are privately owned and rent space from the mall owners. With this in mind, unless the mall owners have a signed agreement with the stores that the security department in the mall have the permission to act as individual store security, security personnel may not use Penal Code Section 490.5 inside individual stores.