Reasonable Suspicion vs. Probable Cause

[AFA1CY]

A question for the lawyers, police, or those who play them on TV. What would probable cause be to detain some one for shoplifting. Lets take a hypothetical situation. You are leaving the local Mammoth*Mart after buying a pair of socks. You (along with others) are coming and going. The anti-theft alarms go off (we all know these never have a false alarm). Is the fact that the alarm was tripped probable cause under Indiana code? Can Mammoth*Mart detain you on this evidence alone?

Just a reminder - this is just hypothetical

 

[LPMan59]

the management of my place of business has told me they can do little to nothing to stop shoplifters. i was told that if they physically restrain you, you can sue them.

IANAL, nor do i play one on tv.

 

[96firephoenix]

they can stand in front of you and demand to see a receipt, and if you simply walk past them, they can have you arrested for trespassing if you return.

IANAL, but I did stay in a holiday inn express last night

 

[jfed85]

Fwiw when I worked at best buy we were told that even if we saw someone stick something in their pocket we could not say "hey I saw you put that dvd in your coat pocket". All we were allowed to do was keep asking them if they needed help with anything in hopes of scaring them. If they walked out the door we could not follow them, they were home free. However, when I worked at menards, we had chased and tackled people in the parking lot to get back stolen items on numerous occasions. I guess it all depends on the company and their policy.

 

[Denny347]

IC 35-33-6
Chapter 6. Detention of Shoplifters by Owner or Agent
IC 35-33-6-1
Definitions
Sec. 1. As used in this chapter:
"Adult employee" means an employee who is eighteen (18) years old or older.
"Agent" means an operator, a manager, an adult employee, or a security agent employed by a store.
"Motion picture exhibition facility" has the meaning set forth in IC 35-46-8-3.
"Security agent" means a person who has been employed by a store to prevent the loss of property due to theft.
"Store" means a place of business where property or service with respect to property is displayed, rented, sold, or offered for sale.
As added by Acts 1981, P.L.298, SEC.2. Amended by P.L.94-2005, SEC.1.

IC 35-33-6-2
Probable cause; detention; procedure; statements by juveniles
Sec. 2. (a) An owner or agent of a store who has probable cause to believe that a theft has occurred or is occurring on or about the store and who has probable cause to believe that a specific person has committed or is committing the theft:
(1) may:
(A) detain the person and request the person to identify himself or herself;
(B) verify the identification;
(C) determine whether the person has in the person's possession unpurchased merchandise taken from the store;
(D) inform the appropriate law enforcement officers; and
(E) inform the person's parents or others interested in the person's welfare that the person has been detained; but
(2) shall not ask the person to make a statement that acknowledges that the person committed the theft or conversion or waives any of the person's legal rights if:
(A) the person is less than eighteen (18) years of age; and
(B) the person has not been afforded an opportunity to have a meaningful consultation with his or her parent, guardian, custodian, or guardian ad litem.
(b) A statement acknowledging that a child committed theft or conversion in violation of subdivision (a)(2) cannot be admitted as evidence against the child on the issue of whether the child committed a delinquent act or a crime.
(c) The detention must:
(1) be reasonable and last only for a reasonable time; and
(2) not extend beyond the arrival of a law enforcement officer or two (2) hours, whichever first occurs.
As added by Acts 1981, P.L.298, SEC.2. Amended by Acts 1982,
P.L.204, SEC.11; P.L.77-2009, SEC.6.

IC 35-33-6-2.5
Detention of person making unlawful recording
Sec. 2.5. (a) An owner or agent of a motion picture exhibition facility who has probable cause to believe that an unlawful recording under IC 35-46-8 has occurred or is occurring in the motion picture exhibition facility and who has probable cause to believe that a specific person has committed or is committing the unlawful recording may:
(1) detain the person and request the person to provide identification;
(2) verify the identification;
(3) determine whether the person possesses at the time of detention an audiovisual recording device (as defined in IC 35-46-8-2);
(4) confiscate any unauthorized copies of a motion picture or another audiovisual work; and
(5) inform the appropriate law enforcement officer or agency that the person is being detained.
(b) Detention under subsection (a):
(1) must:
(A) be reasonable; and
(B) last only for a reasonable time; and
(2) may not extend beyond the arrival of a law enforcement officer or two (2) hours, whichever occurs first.
As added by P.L.94-2005, SEC.2.

IC 35-33-6-3
Placement of information before law enforcement officer; presumption
Sec. 3. An owner or agent of a store or motion picture exhibition facility who informs a law enforcement officer of the circumstantial basis for detention and any additional relevant facts shall be presumed to be placing information before the law enforcement officer. The placing of this information does not constitute a charge of crime.
As added by Acts 1981, P.L.298, SEC.2. Amended by P.L.94-2005, SEC.3.

IC 35-33-6-4
Civil or criminal actions; exclusion of lawful detention; burden of proof
Sec. 4. A civil or criminal action against:
(1) an owner or agent of a store or motion picture exhibition facility; or
(2) a law enforcement officer;
may not be based on a detention that was lawful under section 2 or 2.5 of this chapter. However, the defendant has the burden of proof that the defendant acted with probable cause under section 2 or 2.5
of this chapter.
As added by Acts 1981, P.L.298, SEC.2. Amended by P.L.94-2005, SEC.4.

IC 35-33-6-5
Reliance on information from employee; probable cause
Sec. 5. An owner or agent of a store may act in the manner permitted by section 2 of this chapter on information received from any employee of the store, if that employee has probable cause to believe that a:
(1) theft has occurred or is occurring in or about the store; and
(2) specific person has committed or is committing the theft.
As added by Acts 1981, P.L.298, SEC.2.

IC 35-33-6-6
Reliance on information from employee of motion picture exhibition facility
Sec. 6. An owner or agent of a motion picture exhibition facility may act in the manner allowed by section 2.5 of this chapter on information received from an employee of the motion picture exhibition facility if the employee has probable cause to believe that:
(1) an unlawful recording under IC 35-46-8 has occurred or is occurring in the motion picture exhibition facility; and
(2) a specific person has committed or is committing the unlawful recording.
As added by P.L.94-2005, SEC.5.

 

[dross]

I worked for Wal Mart years ago as a training consultant. The store was in a bad part of town. I saw several detentions using force, and participated in one when the store detectives needed backup.

The two store detectives I knew had been involved in several physical altercations in the parking lot, and one had been shot at another store.

BTW, they had a quota of two shoplifting busts per week, each. As they had other duties, if they were short for the week, all it took was a couple of dedicated hours walking around the store to get their busts.

 

[Militarypol21]

What Denny347 said....

Personally, in the past when working LP for a company I've stopped hundreds of shoplifters, having to tackle and detain most of them and even beating the living out of one who went for a gun after stealing a DVD player a couple days before Christmas (all of which I had the support of my company behind me). I've also chased after 3 shoplifters 2 miles down the road after they ditched their merchandise outside the store with the help of 15 IMPD officers and the air unit flying overhead. Because a company has the right to protect their merchandise and has probable cause to apprehend/detain a shoplifter all of that was legal although we had to meet 6 points before going out to make a stop (1. Watch the suspect walk into the store/department 2. Watch the suspect approach and select a piece of merchandise 3. Keep constant/uninterrupted surveillance of the suspect 4. See where the suspect conceals the merchandise (if he conceals it) 5. Let the suspect walk past all open and operating points of payment 6. Let the suspect exit the building.)

Now, if I was just another customer myself and witnessed someone concealing something, I'm not sure what the law states as you aren't working for the company. Since it's a felony you have the right to citizen's arrest the person but you better have your penny's in order or it can back fire on you. I for one, would most likely contact an employee or manager and make them aware of the situation who in turn would/should contact their LP Department. For all you know he may be already being watched or two it could be Loss Prevention conducting training for a new hire. There were many times where we would go to the floor, select and conceal merchandise, and then walk out the store to train a new hire on making apprehensions.

This is a good question, because I've made it a point after our rules changed and we were long longer allowed to chase shoplifters, that if I knew a suspect was going to run after being approached I would clock out for lunch and then go make the stop. Not being on the company payroll at the time of the stop if the person wanted to fight, bring it.

 

[JDonhardt]

I dont think employees can detain people legally. (Physically, well maybe!)

I'm not a shoplifter. I cant really see why anyone would ever think I was stealing. However, if someone did stop me, accuse me of shoplifting and demand to see my receipt, my pockets, etc. I would absolutely not comply. I'd smile and keep walking. It would be a mistake for an employee to put their hands on me, LP or not.

(If it was a real cop making these demands I would absolutely comply!)

 

[Militarypol21]

I dont think employees can detain people legally. (Physically, well maybe!)

I'm not a shoplifter. I cant really see why anyone would ever think I was stealing. However, if someone did stop me, accuse me of shoplifting and demand to see my receipt, my pockets, etc. I would absolutely not comply. I'd smile and keep walking. It would be a mistake for an employee to put their hands on me, LP or not.

(If it was a real cop making these demands I would absolutely comply!)

LOL.. I do miss hearing those words. I can't remember how many people we use to go out and stop that said, "yeah I stole, what are you going to do about it".. or "F* off security guard". Nearly 100% left in handcuffs, 50% had cuts and bruises from biting the ground so hard, and 5% with a possible broken nose.

..and with that I just applied for a second job hahaha

 

[JDonhardt]

LOL.. I do miss hearing those words. I can't remember how many people we use to go out and stop that said, "yeah I stole, what are you going to do about it".. or "F* off security guard". Nearly 100% left in handcuffs, 50% had cuts and bruises from biting the ground so hard, and 5% with a possible broken nose.

..and with that I just applied for a second job hahaha

It must be comforting to know you can put any man onto the concrete.

But then, I suppose it would take a certain kind of punk to go out shoplifting in the first place.

 

[Militarypol21]

It must be comforting to know you can put any man onto the concrete.

But then, I suppose it would take a certain kind of punk to go out shoplifting in the first place.

I said nearly..there were one or two that got the slip... and yeah it does take a certain kind of punk to shoplift, usually the cracked out or even the drunk kind. I for one dont shoplift either and if someone accused me of it I would smile and walk away myself just hoping they would put their hands on me. Lawsuits are the best and equal big $$ . Every person we stopped we had more than enough evidence they did indeed steal something and a company has the right to detain a shoplifter (at whatever cost and according to company policy and law of course).

 

[JDonhardt]

I said nearly..there were one or two that got the slip... and yeah it does take a certain kind of punk to shoplift, usually the cracked out or even the drunk kind. I for one dont shoplift either and if someone accused me of it I would smile and walk away myself just hoping they would put their hands on me. Lawsuits are the best and equal big $$ . Every person we stopped we had more than enough evidence they did indeed steal something and a company has the right to detain a shoplifter (at whatever cost and according to company policy and law of course).

Good point. I think running would be the best option for a criminal instead of stopping to fight.

I have a pretty close family friend who, when he was 16 or so, tried to steal a cart full of beer from a grocery store. He said he made it out the door and could have gotten away, but then the manager came out and instead of chasing him started calling him out. He said something to the effect of "Only a little p...y would run" yada yada. So the kid (the family friend) gets all mad and goes back to try and fight the store manager - a grown man! He says that when he was close enough the manager simply grabbed him and took him inside and called the police . He spent the night in juvy I guess.

 

[Militarypol21]

Good point. I think running would be the best option for a criminal instead of stopping to fight.

I have a pretty close family friend who, when he was 16 or so, tried to steal a cart full of beer from a grocery store. He said he made it out the door and could have gotten away, but then the manager came out and instead of chasing him started calling him out. He said something to the effect of "Only a little p...y would run" yada yada. So the kid (the family friend) gets all mad and goes back to try and fight the store manager - a grown man! He says that when he was close enough the manager simply grabbed him and took him inside and called the police . He spent the night in juvy I guess.

Criminals are stupid! We had a couple (boyfriend and girlfriend) who came in.. boyfriend stole some perfume for his girlfriend and the girlfriend blocked our view buy holding open her coat. We stopped them both, the boyfriend ran away leaving his girlfriend behind. We detained her for criminal conversion and made her think her boyfriend was a real piece of trash leaving her behind like that. We told her she's going to jail and she got P**d off that she was going alone so she called him and said we'd let them both go if he brought back the merchandise (which she knew she was still going to jail) and well he surprisingly did bring it back and then went to jail and then we decided to let her go .

 

[JDonhardt]

Criminals are stupid! We had a couple (boyfriend and girlfriend) who came in.. boyfriend stole some perfume for his girlfriend and the girlfriend blocked our view buy holding open her coat. We stopped them both, the boyfriend ran away leaving his girlfriend behind. We detained her for criminal conversion and made her think her boyfriend was a real piece of trash leaving her behind like that. We told her she's going to jail and she got P**d off that she was going alone so she called him and said we'd let them both go if he brought back the merchandise (which she knew she was still going to jail) and well he surprisingly did bring it back and then went to jail and then we decided to let her go .

That sort of reminds me of the myth that, when asked, a cop has to say he's (or she's) a cop. Imagine how many criminals feel completely invincible due to this single fail safe tactic!

I bet that myth started because some cop just started spreading the rumor!