NCJ Number
34691
Journal
Oregon Law Review Volume: 55 Issue: 2 Dated: (1976) Pages: 279-290
Date Published
1976
Length
12 pages
Annotation
THIS COMMENT EXAMINES THE PROBLEMS INHERENT IN THE SEARCH AND SEIZURE BY MERCHANT SECURITY PERSONNEL OF EVIDENCE NOT RELATED TO THE CRIME OF SHOPLIFTING IN OREGON, WHERE THEY ARE USED TO CATCH SHOPLIFTERS AND RECOVER GOODS.
Abstract
DISCUSSION CENTERS AROUND THE 1921 SUPREME COURT DECISION IN BURDEAU V. MCDOWALL, WHICH REFUSED TO EXTEND THE EXCLUSIONARY RULE TO SEARCHES AND SEIZURES BY PRIVATE INDIVIDUALS, AND ITS 1960 RULING IN ELKINS V. UNITED STATES THAT EVIDENCE OBTAINED BY STATE OFFICERS DURING A SEARCH, WHICH IF CONDUCTED BY FEDERAL OFFICERS WOULD HAVE VIOLATED THE FOURTH AMENDMENT, IS INADMISSIBLE IN FEDERAL COURT, EVEN THOUGH FEDERAL OFFICERS DID NOT PARTICIPATE IN THE SEARCH. THESE TWO DECISIONS ARE VIEWED IN RELATION TO JUDICIAL PRECEDENT ON THE SUBJECT OF UNREASONABLE SEARCHES BY STORE DETECTIVES AND THE ISSUE OF PRIVATE CONDUCT AS STATE ACTION. THE AUTHOR REASONS THAT A STORE DETECTIVE MAKING A CITIZEN'S ARREST IN OREGON IS ACTING ON BEHALF OF THE STATE AND THEREFORE IS CONFINED BY CONSTITUTIONAL REQUIREMENTS OF 'REASONABLENESS'. THEREFORE, HE EXAMINES SOURCES OF A MERCHANT'S JUSTIFICATION TO SEARCH, INCLUDING THE PRIVILEGE TO RECAPTURE CHATTEL, AND OREGON STATUTORY GRANTS OF AUTHORITY TO MERCHANTS. IT IS CONCLUDED THAT THE SCOPE OF A REASONABLE SEARCH BY A STORE DETECTIVE INCIDENT TO A CITIZEN'S ARREST SHOULD PROPERLY BE LIMITED TO THE DISCOVERY OF WEAPONS AND EVIDENCE REASONABLY RELATED TO THE CRIME OF SHOPLIFTING. EFFECTIVE REMEDIES FOR UNREASONABLE PRIVATE SEARCHES ARE THEN REVIEWED, AND THE AUTHOR CALLS FOR LEGISLATIVE CLARIFICATION ON THE AREA OF WARRANTLESS SEARCHES BY STORE DETECTIVES.