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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 be follow before
detaining 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, 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
STEP 1:
You must see a shoplifter either when they enter your store or approach a display
and that he/she does not have any merchandise in their hand or that they haven't
retrieved a item from their own purse, bag or pocket. This step prevents a common
mistake that occurs when a customer brings an item back to the store for a return
and does not check in at the return desk first. If you detain someone after seeing
him or her replace their own merchandise into their pocket or bag, you could be
subject to a false arrest claim although it is a seemingly honest mistake. Many
false arrest claims are filed because retailers missed this important, but basic,
first step.
STEP 2:
You must see the shoplifter select the merchandise. Store employees can
misunderstand when they see a customer innocently put an item into their pocket
or purse and not realize that the customer had brought the item into the store
with them for comparison purposes. If you can positively and honestly state that
you saw the shoplifter remove your merchandise from your display prior to concealing
it, then you have a strong foundation for proof of shoplifting.
STEP 3:
You must see the shoplifter conceal, carry away or convert the merchandise. This
includes concealment in bags, strollers, or on a person. Shoplifting can occur by
wearing articles in plain view once the tags are removed. Shoplifting can occur by
conversion like when consuming food prior to being purchased.
Exceptions are fitting room theft where observation is impossible. Once inside a
fitting room store merchandise can be concealed almost anywhere. The important
factor is to know what items go into the fitting room and what items don't come out
in plain view. Of course, the fitting room must be checked beforehand to see if it
is clear of merchandise and after the suspected theft to see that the missing items
were not simply discarded.
STEP 4:
You must maintain continuous surveillance of the shoplifter. If your store policy is to detain and apprehend all shoplifters, then you must adhere strictly to this step. Experienced shoplifters will try to dump the concealed merchandise, without your knowledge, if they believe they have been observed. If you followed steps 1-3 and then lost sight of the shoplifter for several minutes you may be surprised when you detain them and they are no longer holding your merchandise. The best approach, if you loose sight of a shoplifter, is to make your presence know to the shoplifter and give them a chance to dump your merchandise and leave your store without a word being said. Sometimes, loss prevention personnel will walk nearby and turn up their mobile radios to alert the shoplifter that they are plain-clothes security. Another technique is to make a storewide P.A. announcement for security to come to the Children's department, for example, which is where the shoplifter happens to be standing. They will usually dump your merchandise immediately and may never return.
STEP 5:
You must see the shoplifter fail to pay for your merchandise. Typically, a shoplifter will walk out of your store, past all cash registers, without making any attempt to pay for the concealed merchandise. This is an important element to prove "intent" later in court, if necessary. Sometimes, shoplifters will go through the checkout line and pay for other items but not for the concealed item. It is important to observe that the concealed item is not retrieved and paid for at the checkout. It is also important to verbally confirm with the cashier that the concealed item was not paid for either. For example, a shoplifter may get a change of heart and tell the cashier that they consumed a candy bar worth .75 cents and the cashier rings it up. If you don't inquire first, you could detain the shoplifter and have some exposure to litigation. Another example is when you observe a customer removing garment tags and dressing their child in new clothes and place the old clothes into a large bag. When the suspected shoplifter proceeds to the cashier, and without you knowledge, they present all the price tags and pay in full. Another example is when a customer at a grocery store tells the cashier to charge for a carton of cigarettes or a newspaper. After the transaction, the customer leaves the check stand a selects the cigarettes or newspaper from the stand in the lobby and exits, seemingly without paying. Sometimes there is a reasonable explanation for removing merchandise, seemingly without paying, so you must be aware of the practices within various retail settings that would allow this to occur. Remember, some shoplifters are clever and will purchase an item, obtain a receipt, and dump it in their car. Next they return to the store to steal the exact same item. If stopped they can produce a receipt and even get the cashier to swear the item was purchased.
STEP 6:
You must approach the shoplifter outside of the store. Although not technically necessary, following this step eliminates all possibility that the shoplifter still intends to pay for the stolen product. A few courts have held that detaining someone for shoplifting inside a retail store does not establish the criminal intent of theft. When approaching a shoplifter outside of the store always have a least one trained employee as a witness. There is safety in numbers and most shoplifters will cooperate if they believe fighting or running is futile. When you approach a shoplifter outside it is important to identify yourself clearly and your authority for stopping them. Plain-clothes loss prevention agents carry badges or official looking ID cards so the shoplifter has no doubt who they are. Most shoplifter apprehensions should be accomplished with no force or if necessary, minimal force like touching or guiding. Professional loss prevention agents sometimes will use handcuffs to take someone into custody, if they are first trained how and when to legally apply them properly.
You must follow these six steps, and you should have no problem with proving criminal intent to shoplift and be able to establish probable cause to detain a shoplifter. You should also be well insulated from civil liability if you followed these six steps correctly.
THE DECISION
The decision to approach and confront someone suspected of committing theft should not be taken lightly. To make a citizens arrest, you must see the crime (misdemeanour) committed in your presence or in the case of a felony be sure that the crime actually occurred outside your presence.
THE 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 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
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
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 their ability to breath.
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. 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 is illegal and a 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 Provinces, 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 honoured 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 (they must take this themselves, never give any type of drug to another person) , or restroom access. 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 immediate. If a shoplifter was violent call the police immediately. The shoplifter can make any necessary calls from jail. You must call the parents for juvenile shoplifters. Never release juveniles without being picked up by a capable guardian or the police.
DOCUMENTATION
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 insurance 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. 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.
False Arrest
Citizens value their constitutional rights and don't appreciate submitting to unlawful seizure and search. Because of this, there has been a legal trend of suing the retail store anytime a customer is wrongfully accused of shoplifting. Because of this, the retail security and loss prevention industries have developed six universally accepted steps to minimize the potential for a false arrest claim.
They are:
- You must see the shoplifter approach the merchandise
- You must see the shoplifter select the merchandise
- You must see the shoplifter conceal, convert or carry away the merchandise
- You must maintain continuous observation of the shoplifter
- You must observe the shoplifter fail to pay for the merchandise
- You must apprehend the shoplifter outside the store
The word "false arrest" is very distasteful to the retail industry, so it has created several alternate words to describe the event. Words like "non-productive detention," or "unproductive stop," or "investigative detention" all have been used in place of false arrest so not to seemingly admit liability. Whatever the word, if the customer you stop and accuse is not holding the merchandise you thought he or she concealed than you have a potential false arrest claim.
While detaining someone, you must do so in a reasonable manner. Tackling and injuring a customer in the parking lot over suspected petty theft might seem excessive especially if no other means of detention were attempted first. You must also detain someone only for a reasonable time. Holding someone for three hours while you investigate a check, credit card, coupon or refund fraud attempt is excessive.
Tackling, punching, and verbal abuse of shoplifters are never acceptable. Excessive or unreasonable use of handcuffs, leg restraints, or pain compliance holds are also inappropriate when dealing with those suspected of retail theft.
You run the risk of a false arrest claim when you:
- Don't observe the customer approach a display
- Don't observe the merchandise being selected from the display
- Don't see the merchandise being concealed, carried away or converted (i.e. eaten etc)
- Don't maintain continuous observation and the shoplifter dumps the item
- Don't watch the check stand and verify the non-payment of the item
- Don't detain the shoplifter outside the store (or at least past the last register)
- Don't detain only the person directly responsible for the theft
To avoid other related claims:
- Approach from the front (so the shoplifter doesn't think you're a robber)
- Have at least one witness of the same sex present at all times
- Have at least one more backup than the number of shoplifters
- Clearly identify yourself as the store representative or security officer
- State the reason for the detention and ask for the item back
- Don't be afraid to immediately disengage and apologize if you make a mistake
- Listen for spontaneous utterances (i.e. "I forgot to pay for it")
- Closely escort the shoplifter to a private office
- Do not chase the shoplifter through the store
- Always be polite and professional even if the shoplifter is not
- Do not use excessive force (i.e. double lock handcuffs)
- Do not make threats or exchange insults
- Accommodate reasonable medical and handicap requests
- Process the arrest swiftly according to store policy
- Save, tag, and photograph the stolen merchandise as evidence
- Cooperate with the police and appear in court, if necessary
Racial Profiling
PROFILING IS A TOOL
The concept of shoplifter profiling is a proven loss prevention tool and is currently being practiced in most major retail stores by trained loss prevention or security staff. Does that seem shocking? It shouldn't, as long as it doesn't include the discriminatory practice of focusing on the race of the customer alone. Profiling is used everyday as a method for quickly focusing in on a person, a product line or a section of a store most likely to contribute to shoplifting. All investigative agencies including the police, and others have used profiling as a tool to narrow the field of possible suspects. Why shouldn't retail store security be able to do the same? Store and customer profiles are developed during day-to-day operation and by collecting and analyzing inventory data. This data provides both a quantitative and a qualitative basis for determining where, when, how, and by whom shoplifting is likely to occur in the future.
A progressive retailer has numerous inventory controls in effect and at several levels. Every store should know what departments and which product lines have the greatest inventory loss based on audits, product movement analysis reports, shoplifter apprehensions, and by finding signs of theft. Professional loss prevention personnel are trained to know from what day of the week, what time of day, what product lines, and what department will have the most shoplifting activity. Armed with this data, loss prevention personnel set out to observe shopper "conduct" in the most active areas and during the most active times. Profiling like this makes perfect business sense and is appropriate.
There are other types of profiling based on store apprehension histories and industry experience that has taught LP professionals who to "include" and who to "exclude" when scanning the store for potential shoplifters. For example one profile is that people rarely shoplift while in the presence of their spouse, significant other or parents. After scanning these persons they might quickly be bypassed as theft candidates. Shoplifting is a crime of opportunity and desire. Trained loss prevention staff will spend most of their time observing those customers who demonstrate to have both opportunity and desire. For example, a customer standing alone in a remote aisle, carrying a large empty shopping bag, and looking from side to side would be immediately suspicious until their conduct proves otherwise. A customer wearing very tattered shoes might be suspicious in a self-service shoe department until their conduct disproved a lack of desire to steal. A customer walking across a store carrying a small electronic item partially concealed in the palm of their hand might seem suspicious until several opportunities passed to conceal the product. In contrast, a customer wearing tailored shorts and a t-shirt may have the desire to steal but will have little opportunity to conceal a large item of merchandise they are carrying. Based on profiling and shopper conduct, the professional plain-clothes security officer will scan thousands of customers a day and determine that 99% of them are legitimate shoplifters.
SURVEILLANCE IS NECESSARY
Merchants don't like monitoring their customers to prevent theft but know it's a matter of economic survival. It's bad public relations if done crudely. However, the retail industry loses over 10-Billion dollars every year and shoplifting is a big part of it. Store surveillance is limited to the public areas where there is no expectation of privacy as opposed to inside fitting rooms and restrooms that are considered private areas. Knowing that you are under surveillance is an uneasy feeling. No one likes being watched and being made to feel like you're dishonest. However, if trained professionals do the surveillance properly, most people will never realize they were observed while shopping. The problem arises when untrained or unqualified security, loss prevention or off-duty police undertake the task of store surveillance. The majority of the complaints about racial profiling have to do with the apparent practice of some retail stores who seem to openly stalk certain ethnic groups throughout the store.
RACIAL PROFILING
Racial profiling is an improper practice and the mistaken belief that certain ethnic groups are more likely to shoplift than others. Because of this, misguided store employees will focus their surveillance time on the customer "colour" rather than "conduct". Racial bias can blind store security personnel and cause them to monitor only the ethic minorities and ignore the real source of their inventory losses. Racial profiling eventually leads to a pattern of false arrests, wrongful detentions, and harassment when no real probable cause exists. The result is that a particular ethic group will be made to feel like they can't be trusted and are unwelcome in the store. African Americans call it "shopping while black". Unless management corrects the wrongful conduct, civil rights violations will occur and false arrest lawsuits will follow and damage the reputation of the retailer.
Most major retailers have generic published policies against discriminatory acts but none that I've seen specifically address racial profiling by it's security personnel. Not surprisingly, incidents are occurring which feeds the question of how much racial profiling exists in retail stores.
Exit Bag Checks
BAG CHECK POLICY
What consumers complain about is a local store policy where an employee or security guard will check customer purchases against their receipt. This radical loss prevention tactic is usually used in high-ticket specialty stores who have experienced large inventory losses. This bag inspection applies to store purchases only and not to other items you might be carrying. The store knows the door bag check procedure is not consumer friendly but must believe it is a necessary step.
CAN MERCHANTS DO THIS?
Yes, as long as the procedure is voluntary. The bag inspection should occur past the point of payment solely for the purpose of verifying the sales transaction that just occurred. The door bag checker is looking to see that the cashier correctly charged for all items in the shopping bag or cart up. Once this is done, the bag checker makes a distinctive mark on the receipt to indicate that it was checked.
A merchant is free to put procedures in place to help curb their losses due to theft. It is estimated that 10 billion of dollars are lost every year due to theft. These unchecked losses would soon put retailers out of business. This cumbersome procedure is very effective in preventing employee theft, shoplifting, and refund fraud.
ARE DOOR BAG SEARCHES LEGAL?
Yes, as long as the inspection is voluntary. No, if the bag check is involuntary or coerced. This is a rather fine legal distinction that is subject to misunderstanding and abuse. Basically, nothing in the law gives the merchant the right to detain a customer for the purpose of searching a shopping bag unless there is a reasonable suspicion of retail theft. A customer can refuse to have their bag checked and simply walk out the door past the bag checker. The bag checker has been trained to know that they cannot force anyone to submit to a bag search without cause. This is important because the expectation of the bag checker is that all bag contents have been purchased. The worst thing that could happen is that an aggressive bag checker would forcibly detain or threaten a customer who refused to comply with the search.
HOW SHOULD THE BAG CHECK PROCEED?
The bag check procedure should be routinely handled just like the checkout process. Most customers don't give it another thought as long as there isn't a long delay. It is helpful if the bag checker is non-threatening in manner and appearance. Many stores make the mistake of placing someone at the door that looks and acts like a bouncer and body aggressive language sends the wrong message. Not only does the bag checker help catch mistakes and deter theft but also aids in the return procedure. The special mark that is made on the receipt is a signal to the refund desk that the item passed by the door checker after being purchased. Unmarked receipts suggest that the items might be stolen or purchased at a different store.
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