Shoplifting is now one of the fastest growing crimes in the country. As most beauty supply retail businesses pack merchandise in a limited amount of space, they are vulnerable and an easy shoplifting target. In this issue, we review legal procedures about detaining and arresting shoplifters. This issue’s article completes the series, “Ending the shoplifting problems,” preceded by “Types and Methods of Shoplifting” (Part I), “How to Assess and Prevent” (Part II), and “Legal Procedures (I)” (Part III).

 

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. What follows are some good "rule of thumb" guidelines to follow in most situations. I would like to repeat that you must follow the above six steps to establish Probable Cause before detaining anyone.

> Step 1: Decision

The decision to approach and confront someone suspected of committing theft should not be taken lightly. It is 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.

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 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.

> Step 2: Approach

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 at 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. 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. The presentation of credentials should occur simultaneously with the words "I'm with ABC Beauty Supply, and I would like to talk with you about the hair gel in your bag."

You should listen for spontaneous utterances like, "Oh, I forgot to pay for it" to help prove fault 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.

> Step 3: Detention

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 backup, most shoplifters will comply and go anywhere you direct.

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 employees should walk very close to the suspect while speaking in a calm manner. 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. If the customer is cooperative and is either very young or very old or very frail, no force should be necessary. Excessive force is unnecessary and unlawful and can create exposure to civil liability. Extreme foul language, ethnic slurs, and verbal threats of harm will all be considered excessive when a shoplifter is in custody.

> Step 4: Shoplifter Processing

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.

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. Or 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 consider releasing the shoplifter to relatives instead of the police.

Simple requests should be honored for those held in custody, if safe to do so. 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. The shoplifter can make any necessary calls later from jail. You may consider calling the parents for juvenile shoplifters. Never release juveniles without being picked up by a capable guardian or the police.

> Step 5: Written Reports

Written reports will be vital for use later on in both criminal and civil courts. Reports usually capture all the important identification data like name, address, date of birth, social security number of the shoplifter.?The report provides a narrative of the facts that establishes the probable cause elements, itemizes all stolen merchandise, lists all witnesses, and includes any 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 at 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. 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.

> Reasonable Detentions

While detaining someone, you must do so in a “reasonable” manner. Tackling and injuring a customer over suspected petty theft might be deemed excessive. Detentions must also be for a “reasonable” time period. For example, holding someone for three hours while you investigate shoplifting attempt is excessive.

> False Imprisonment

The definition of false imprisonment is the unlawful restraint of someone that affects the person’s freedom of movement. Detaining a customer and transporting them to some backroom without “reasonable” cause could be considered false imprisonment.

Some retailers misinterpret the state “merchants’ statute” and believe they can detain a customer for almost any rule violation. For example, they sometimes detain a customer for refusing to stop for an exit bag check or after a door sensor (EAS) alarm. Such detention could be deemed as false imprisonment without “reasonable” cause to suspect that they had stolen anything.

Even if a customer consents to an exit bag check or to a meeting in the manager’s office, it could be considered false imprisonment if that consent is later revoked by the customer. A customer must always be free to go unless lawfully detained.