NCJ Number
72346
Date Published
1980
Length
11 pages
Annotation
In California, retail merchants need legislative relief in the areas of liability coverage for their arresting of shoplifters and of search and seizure rights when a shoplifter has concealed the stolen item.
Abstract
California's Supreme Court decision in People versus Zelinski held that if a shoplifter conceals a stolen item so that it is not 'in plain view' a security agent employed by the merchant must obtain the shoplifter's permission to recover the stolen goods if those goods are to be admissible as evidence in the criminal prosecution. The merchant or agent may recover the merchandise without the shoplifter's permission if the thief is not prosecuted. Since prosecution of shoplifters is generally considered to be one of the more effective measures for controlling the problem, a serious obstacle has been placed in the merchants' path in their efforts to deter shoplifters. Senate Bill 1304, to be passed in 1981 permits merchants to call the police who may search a shoplifter and recover items to be used as evidence without the suspects' consent. However, this process often involves a cumbersome 2-hour wait for the police officer. Moreover, the moment a California merchant or agent makes a citizen's arrest of a shoplifter and turns the suspect over to the police for prosecution, Section 836 of California's penal code comes into play: peace officers may make an arrest when they have reasonable cause to believe that a crime has been committed but private persons may make an arrest only if a crime has been committed. Peace officers can thus be protected by liability from civil action if they can show reasonable cause for arrest, while private persons cannot. Furthermore, penal code section 490.5 protects merchants from civil liability only while investigating to determine if an act of shoplifting had taken place. The solution to the retailers' problem lies in the enactment of an entirely new penal code section which deals with theft from retail establishments and related facilities and which addresses employee theft as well as shoplifting. Case law is cited, and a formula for estimating shoplifting losses is appended, together with relevant statutes.