Hello, and welcome to Legal Lad’s Quick and Dirty Tips for a More Lawful Life.

But 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 episode is an expansion on last week’s episode regarding searches by security guards at retail stores. Several listeners, including Richard from Texas, Matt, and Robert asked me to specifically address the underlying legality of a security guard’s search. Matt wrote:

Do you have the right to simply pass by without inspection? Would doing so alone be grounds for you to be detained for shoplifting, and what about the electronic alarm, are you required to obey it? All this of course concerning people who are not shoplifting; obviously I wouldn't expect you to give advice for would-be shoplifters. But seriously, these checks and alarms are pretty annoying for us law abiding citizens simply to be told to smile and politely “take it” over something that may not be legal/required.

The short answer is that merchants do, in fact, have the right to search and detain you if they have sufficient reasons to believe that you have shoplifted. However, with regard to Matt’s question: Yes, if you are just leaving the store after a routine shopping trip, you generally have the right to exit a store without inspection. If a security guard at Best Buy asks to see your receipt, you have two options. You may voluntarily agree to be searched. Alternatively, you may say no and simply walk by. The guard must have some reason to believe you stole something before he can search you and refusing to allow the guard to check your bag is not a good enough reason on its own. There must be something more.

To accommodate the competing policies of controlling theft and freedom from harassing searches, most states have enacted “shoplifting statutes.” These statutes vary from state to state, but generally operate to allow merchants to search a customer where they have a reasonable ground to do so. Once the merchant has reasonable grounds to search, the merchant may conduct a search with reasonable force, and for a reasonable amount of time to determine whether the suspected shoplifter has indeed stolen something or not.

You might find subjecting to the search annoying, but your refusal to comply with a security guard can have much more annoying consequences. The quick and dirty tip is to politely and calmly cooperate with the guard, and if you feel that a store’s search policy is too invasive, take your business elsewhere.

With regard to the issue of reasonable grounds to search, a merchant can rely on various pieces of evidence. If an employee actually sees a customer put an item in their pocket or bag and walk out, then a merchant has pretty strong reason to believe that the customer has stolen something. But merchants can also detain and search you on less obvious grounds. A merchant can stop you if another customer tells a guard that you stole something. A guard can ask you to return to a store if you walk through an electronic gate that beeps at you, indicating that something you are carrying has an active anti-theft device attached to it. You are not necessarily required to stop once the alarm beeps, but if a guard asks you to come back to submit to a short search, the guard has the legal right to do so under the shoplifting statutes in most states.

Once the merchant has grounds to search you, then the merchant may conduct a search in a reasonable manner and for a reasonable amount of time. What constitutes a reasonable search or a reasonable time depends heavily on the facts of the situation. For example, a court in Louisiana held that a merchant acted reasonably when it detained a customer for 25 minutes in a back room and emptied her purse and pockets of her jacket after an antitheft alarm went off. By contrast, a court in Mississippi held that a store acted unreasonably where an assistant store manager grabbed a customer whom he suspected of shoplifting by the arm, and demanded that she pay for the deodorant that she had hidden in a paper bag that she was carrying, all of this occurring on some steps inside the store front and in front of all the sales people and customers in the store. The court emphasized that, although controlling theft was important to the store, that this kind of rude and embarrassing conduct would not be tolerated.

Some listeners wrote that it offends them when a merchant searches them. But, it is important to note that a store actually has a quasi-duty to try to search your bags once they suspect you of shoplifting because simply detaining you without trying to determine whether you actually did steal something constitutes an unreasonable detention.

If a search is held to be unreasonable, then you might be able to recover under the legal theories I mentioned in my last episode. The shoplifting statutes operate to insulate a store from liability when it conducts searches reasonably.

Last, Robert correctly pointed out that private clubs such as Costco require you to submit to searches as part of your membership agreement. In a private club setting, you are generally bound by any conditions you agree to, from paying annual dues to submitting to searches.

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 QDnow podcasts at www.quickanddirtytips.com.

You can send questions and comments to legal@quickanddirtytips.com or call them in to the voicemail line at 206-202-4LAW. Please note that doing so will not create an attorney-client relationship and will be used for the purposes of this podcast only.

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