Private Investigations and Personal Security/shoplifting


Dear Sir:

I am a male, 17 years old.  Recently I was subject to being detained for shoplifting when I was innocent and I would like your opinion about it.


I was shopping at a large retail store that sells everything from food to television sets.  After paying for my items at a checkstand I proceeded to the exit.  An alarm sounded as I went through the first exit door.  I looked around, but no employee seemed to be around so I proceeded out the second door.  

I was overtaken in the parking lot by a uniformed store security guard who asked me to stop.  She told me to remain calm and asked me to keep my hands in plain sight.  She then explained that she had responded to the exit alarm and asked to look into my bag to check my receipt.  I felt that I had nothing to hide so I agreed.  To my great surprise she found an item which was not listed on my receipt, one of two CD’s I bought.  I explained that this must have been a mistake by the checker or that something was wrong with the register and I offered to pay for it.  She told me that she would have to investigate further and asked me to accompany her back to the security area where “we can talk about this further.”  By this time I was getting scared  and I did not want to go with her.  We argued about this for a minute or two, not in a loud way, but with me saying that this was unnecessary, I could pay for the CD or give it back, and her saying I would have to accompany her back to the security area where a decision as to what to do would be made.  I even offered to pay her cash on the spot for the CD which was less than $20.  At that point she stated that she was not going to argue with me any longer and she was going to escort me back to the security area.  She took me by the arm, above the elbow, grasping my hand with her other hand and kind of turning my hand around and back on itself.  She asked me to please come along with her quietly.  I can’t say that the way that she held me hurt, but I felt that it would if I resisted.  I went with her without resisting.

She took me back inside the store, down a hall and into a private office and sat me down on a stool.  She then called someone on the phone and a male employee came in.  She had me get up again while he did a “pat down”, which she said was “for my safety and your safety.”  She then asked me to produce identification and I handed over my wallet.  By this time I was very frightened.  I wanted to call my mother on my cell phone and get her advice, but the guard said I could not do that now.  I was already upset and shaking like a leaf.  Not being allowed to call my mother was too much for me and I protested at this.  The security guard told me to calm down but I couldn’t help starting to cry.  At that point she told me that “for my safety and your safety” I would have to be restrained.  She then proceeded to handcuff my hands behind my back and again sat me down on the stool, telling me to “take some deep breaths and relax”.  That was very difficult to do under the circumstances but it did help me regain some control, although I kept blinking back tears.

The male employee said that he had something else he had to take care of and asked the guard if she needed him to stay.  She said that would not be necessary and he left.  She then proceeded to do her investigation.  She made a list of everything in the bag, took a photocopy of my learner’s permit, and photographed me.  She was able to identify the checker from the receipt and she called the checker in for an interview.  The checker said that she checked everything I put on the counter.  The guard also viewed a surveillance video of the checkout stand.  I did not get to see the video from where I sat, but I think it must have shown that I did nothing wrong because afterwards she told me that she would release me without charges if I paid for the CD and signed a statement that said I had removed an item from the store without paying for it and promised never to return.  By this time all I wanted was for this to be over with and to be allowed to go home so I agreed.  She then wrote up some papers, took the handcuffs off of me, and had me sign the statement.  The papers did not say anything about a checker’s mistake or anything like that, but I was afraid to argue with her so I signed.  All of this took maybe 30 to 45 minutes.

I expected to be able to leave then but she told me that because I was a minor she would have to release me to a responsible adult.  I protested at this because I had understood that she had promised to let me go and I was not even planning on telling my mother about it.  The guard  told me that I was getting visibly upset again and that I should take some more deep breaths and calm down or she would have to put me in handcuffs again.  I felt helpless and I tried to calm down as much as I could.   She then called my mother at work, who had to make arrangements to leave early and come down and get me.  I had to wait about another hour and 15 minutes.  When my mother came the guard had the male employee come back in and sit with me while she talked to my mother in another room.  She then escorted my mother and me out to the parking lot and I was finally allowed to go home.  

The guard gave my mother a copy of the statement I had signed and also a copy of the guard’s report.  The report pretty much tells what happened but does not say anything about the video having cleared me.  My mother is angry with me and thinks the whole thing is my fault.  I have told my mother my side of the story but she believes that I did steal from the store and was lucky to “get off lightly.”  She also has told me that even if I was innocent I had behaved badly with the guard, “got what I deserved”, and have hopefully “learned my lesson.”


I have read what is on your website and I have some questions.

1.  You say that the security person should actually see you take and conceal something to have “probable cause”.  In my case that did not happen.  Was the security guard acting unlawfully when she detained me?

2.  If the guard did not have probable cause, would I have had the legal right to run away or fight back when she detained me?

3.  When I explained that there must have been a mistake and offered to pay for the item, shouldn’t that have been the end of it?   

4.  If the guard had probable cause to detain me, was it legal for her to take me by the arm and lead me back to the security area?

5.  Was it legal for the “pat down” to be done?  I don’t see how that was necessary for anybody’s safety.

6.  Was it legal for the guard to handcuff me?
7.  What chance would I have of successfully suing the store for false arrest or something like that?

Dear Gary,

While it is unfortunate, you were the unwitting recipient of a typical shoplifting processing incident.  Living in the United States, where retail theft statues tend to vary based on jurisdiction, I can only give you an educated guess as to your answers and the situation as whole.  On the large part, regardless of their specialty, retailers tend to follow similar proceedures in regards to shoplifting incidents.  Retail security guards/loss prevention agents (as is the common title in the US) tend to establish what their company guidelines consider to be probable cause, approach the suspect once they've left the store, and attempt to get them to return with the alleged stolen/fraudulently obtained merchandise.  Once inside, the retailer has the lawful right to question a suspect an recover any suspected stolen merchandise.  The decision of prosecution also rests solely with them.  

To answer your questions:

1) What you define as "probable cause" and what the retailer defines are more than likely different.  While in a perfect scenario a store loss prevention specialist will have seen a customer actually remove a concealed item past all points of sale, thereby establishing probable cause the customer in question had every intent to steal said item, it is often not so clear.  All probable cause means is that the retail agent had grounds to believe the articles in question were not paid for.  In this case, an item was not rung up.  Again, all I have is your side, but based on what you've said, the guard acted lawfully. You must understand you're on their property. Customer or not, if a store security agent identifies a suspcious occurance, they have every legal right to challenge a patron or patrons.

2) Whether or not you feel you have acted in error or committed a crime, running away or fighting are the two worst possible choices.  If you run, many retailers allow agents to pursue suspects in possession of stolen merchandise to retrieve the stolen items.  You not only risk injury to yourself, but also that of the guard.  Fighting puts you in the same situation. A guard has the right to self-defense if you attempt to strike them, and in most cases can strike back.  Fighting also increases the chance a simple theft situation becomes a robbery, which is a felony and would have you facing prison time, plus assault charges.  Ask yourself; for a $20 item, if fighting or running really worth a serious problem?

3)  No, it wouldn't have been the end. From my experiences peforming shoplifting apprehension work (5+ years and counting), if a suspect immediately pulls out stolen items and offers to pay or give them back, it's a sign of guilt.  I'm not saying you are in any way guilty.  I haven't seen a surveillance video.  But the guard probably interpreted the same thing.  We tend to read body language and tone of voice when we approach people.  If a guard sees it happen, it furthers probable cause.  If you're truly innocent, simply return in the store and explain the situation inside.

4)  Yes, it was legal.  A store guard can use minimal force (generally speaking) to direct a subject back inside.  She acted correctly in holding you by the arm, to ensure you weren't a flight risk and that the merchandise in question didn't leave with you.

5 & 6) To answer both of these, yes and yes.  Guards can handcuff and pat down on the grounds of personal safety. While you may not have been a threat, there are plenty of people who shoplift who are in desperate situations or have criminal histories and carry weapons.  Pat downs and handcuffing enable a store guard to keep control of an incident and minimize an potential risk an individual may pose.  Many companies who employ handcuff useage also require guards to handcuff everybody as general policy.

7) Unfortunately, in regards to suing this store, you have no grounds.  As a minor, any legal representation would have to involve your parents, and you've already stated that your parents don't believe you.  Plus litigation would require you finding holes in their practices and a case of severe prejudice, of which I don't see any.

After reviewing the video, the guard probably felt that it was more productive of her time to just release you to your parents. Juveniles rarely face prosecution.  Shoplifting isn't just pocketing CDs and leaving a store. It comes in all varities.  People can pay for items and shoplift others. They can use bad checks, stolen cards, even be professional thieves who sell stolen items.  The guard seems to have acted lawfully in carrying out her job duties.  My advice to you would be to learn from this experience and exercise more caution in how you conduct business in a retail store.  While I can't say one way or the other that you did this, it isn't my right to judge, I would say at best it was an error of the store that was exacerbated by your behavior.

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