by Michael W. Flynn
First, a disclaimer: Although I am an attorney, the legal information in this podcast is not intended to be a substitute for seeking personalized legal advice from an attorney licensed to practice in your jurisdiction. Further, I do not intend to create an attorney-client relationship with any listener.
Today’s topic is searches by security guards at retail stores. Jesse wrote:
My question for you is regarding my rights when exiting a store after paying for the items I obtained there. Some stores, such as Best Buy and Costco, stop their customers when they are exiting the store, demanding to see a receipt for the items purchased. I feel that this is somehow violating my rights, as I have already purchased the items and do not have any obligation to prove to a "bouncer" that I am not shoplifting. I also feel that it may be inappropriate, as I may not want someone at the door examining what I bought in front of other customers.
Jesse, you are not alone. Large stores such as Best Buy seem to search every customer as they exit, regardless of the value or size of the purchase. This can be annoying and embarrassing.
First, it is important to identify what is not at issue here: the Fourth Amendment. As I discussed in previous episodes, the Fourth Amendment generally allows people to be free from unreasonable searches and seizures. But, this protection only applies to conduct by the government and its agents. This is known in constitutional law as the “state action” doctrine, and generally means that, unless the government takes action, the protections afforded by the Constitution are not implicated. Police officers are agents of the government, and when they act, your Fourth Amendment rights kick in.
So, if a police officer stopped you as you walked out of the store without sufficient reasons, then you would be able to invoke the protections of the Fourth Amendment against the search. However, because the security guard at Best Buy is not an agent of the government, the Fourth Amendment does not apply. The security guard is not compelled to abide by Fourth Amendment requirements, including the need for a warrant or probable cause to search. His search does not violate your Fourth Amendment rights.
But, there are some other ways that a security guard’s search could give rise to a lawsuit. The first is the tort of invasion of privacy. In most states, you can sue a store if an employee intentionally intrudes into your privacy, and that intrusion would be highly offensive to a reasonable person.
For example, if the security guard stopped you, pulled out your calendar, and read to the line of waiting customers that you had an appointment for a colonic and then a trip to your psychiatrist coming up, you would have a pretty good case. But, you are not likely to prevail where Best Buy simply peeks into your bag and checks your receipt to ensure that you paid for the items you are carrying out. This is because your privacy rights are not very great where you have, in public, pulled items off a shelf and given them to a cashier to scan. Many members of the public have seen you purchasing the items, so you cannot really assert that your purchase is private. Further, simply looking in your bag and at your receipt for a short moment is not considered by most to be a “highly offensive” act.
On the other hand, an Alaska court noted that if a security guard stopped you, made you take out all the items in your bag or purse, placed them in public view, and detained you for a long period of time, your claim would be stronger.
You also might have a claim under the tort of false imprisonment. In most states, you can sue a store if you can show that they deprived you of your liberty without your consent and without legal justification. This normally arises when you are suspected of shoplifting, and a store manager or security guard prevents you from leaving the store without first searching your bags.
Typically, this type of case will turn on how reasonable it was for the store to detain you. For example, if a store manager thinks he sees you taking a camera off the shelf and putting it in your bag, the manager can detain you long enough to search your bag to determine if, in fact, you have the camera. If the manager forces you to stay longer, then he is acting less reasonably because he no longer has a valid reason to believe that you stole something.
Aside from the invasion of privacy and false imprisonment torts, it is important to recognize that a store may not detain or search people for an otherwise unlawful purpose. For example, a store cannot maintain a policy where a security guard searches only racial minorities. That policy would violate equal protection principles, and would not be based on any reasonable purpose.
Another cause of action in this situation is for slander or libel. You could sue the store for slander if the manager said something about you that is both false and defamatory in front of other people, which results in an injury to your reputation. Libel is the same thing for statements that are written instead of spoken. For example, if the manager pointed at you in a large crowd and said, “You just stole a camera—you are a thief!” you might be able to sue for slander if you were fired from your job the next day because your boss thinks you are a thief.
All of these causes of action are difficult to prove, and your recovery is not likely to be large in most cases. Again, the quick and dirty tip is just to comply with the security guard, and if you feel the store’s policy is overbearing, take your business elsewhere.
Thank you for listening to Legal Lad’s Quick and Dirty Tips for a More Lawful Life. Be sure to check out all the excellent Quick and Dirty Tips podcasts at www.quickanddirtytips.com.
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