Can Costco search a person's bag?

[T-1 Thunder]

Jeezus, H! I can't believe it hasn't been covered yet in this friggin thread!

California Penal Code 490.5 (f) see it here

It's generally called the "Merchant's Privilege" or "Shopkeeper's Privilege" and is based in English law dating back to the middle ages. Seriously.

You can be detained using reasonable force for a reasonable amount of time if the shopkeeper has reasonable suspicion you have or are about to commit a crime while on or near his premises. The issue becomes the definition of "reasonable" and "suspicion" which are both subject to liberal interpretation.

So the short answer is "yes, you can be stopped."

The short answer is NO, you can't.
I've said it before. "REASONABLE" = them having to watch and see and know a lot about the stolen item, etc BEFORE they make a stop.

I've worked loss prevention, have you?

 

[T-1 Thunder]

but I am not going to call the ACLU because the LP/Checkout guy is doing his job.

So no matter what the checkout guy does, as long as "he's doing his job"(which is an order given by another employee) - he's 100% right all the time?
What I'm the store manager and tell my employees to feel up your wife on the way out the door? Is that ok, too - just because "he's doing his job"?

If the "job" he is doing is unlawful - you have every right to assert your rights.
Unlawful = detaining you, not simply "asking to see" it.

At that point the arresting citizen "may orally summon as many persons as he deems necessary to aid him therein..." in kicking the crap out of said bad guy who refused to let us look in his purse!

And if "bad guy" turns out to be "good guy" with no stolen items? Then what?

 

[the law]

1) You are correct.
2) You are partially correct here. Your forst 1/2 is right, but store security does have the right to make a citizen's arrest (if specific legal criteria are met) and use reasonable force, if necessary to effect their arrest. [REVIEW THIS INFO] California Penal Code Section 834 states: "An arrest is taking a person into custody, in a case and in
the manner authorized by law. An arrest may be made by a peace
officer or by a private person."

Section 837 states:
A private person may arrest another:
1. For a public offense committed or attempted in his presence.
2. When the person arrested has committed a felony, although not in his presence.
3. When a felony has been in fact committed, and he has reasonable cause for believing the person arrested to have committed it.

Section 839 states:
Any person making an arrest may orally summon as many persons as he deems necessary to aid him therein.
Section 841 states:
The person making the arrest must inform the person to be arrested of the intention to arrest him, of the cause of the arrest, and the authority to make it, except when the person making the arrest has reasonable cause to believe that the person to be arrested is actually engaged in the commission of or an attempt to commit an offense, or the person to be arrested is pursued immediately after its commission, or after an escape.
The person making the arrest must, on request of the person he is arresting, inform the latter of the offense for which he is being arrested.
3) You know we will!


My response would be, "Are you placing me under a legal citizen's arrest?" If the answer is "no," I walk. If the answer is "yes," the sext question would be, "for what charge? (see section 841, above)" Then, I would demand they have an officer respond without delay and that they turn me over to the officer immmediately.. see the (a) section below.

Section 847 states:
(a) A private person who has arrested another for the commission of a public offense must, without unnecessary delay, take the person arrested before a magistrate, or deliver him or her to a peace officer.
(b) There shall be no civil liability on the part of, and no cause of action shall arise against, any peace officer or federal criminal investigator or law enforcement officer described in subdivision (a) or (d) of Section 830.8, acting within the scope of his or her authority, for false arrest or false imprisonment arising out of any arrest under any of the following circumstances:
(1) The arrest was lawful, or the peace officer, at the time of the arrest, had reasonable cause to believe the arrest was lawful.
(2) The arrest was made pursuant to a charge made, upon reasonable cause, of the commission of a felony by the person to be arrested.
(3) The arrest was made pursuant to the requirements of Section 142, 837, 838, or 839.

If they claim they are placing me under citizen's arrest and disclose the code or crime they are arresting me for, and agree to turn me over to the police without unnecessary delay, then there would be no need to put their hands upon me. I would make it clear to them that I was submitting to their citizen's arrest and I would not accompany them to their office, I would demand they have the police respond to our location.

Hands-on force, any forced/coerced movements and taking me to an office or detention area would add battery, kidnapping and false imprisonment to the false arrest suit.

Any private person making the citizen's arrest also takes a risk of being guilty of kidnapping if he prevents the person from leaving the scene -- and not only if he takes him to a detention area -- if his belief that the person committed a felony is not reasonable (or any of the other requisites for a citizen's arrest are not met). As a secutiry officer at Costco I would think twice before performing a citizen's arrest.

With that said, it is only reasonable to open your bag if you signed an agreement to do so. Otherwise, kiss my big black hairy butt.

 

[CaN Opener]

If you don't like the way you were treated or feel that one of the security personnel was out of line do the following in order if in a major retailer.

1.) on the approach just leave if stopped state this. " Don't turn this into a nri or a bad stop" (Nri = non recovery incident which usually = fired)

2.) when at home take your receipt fill out the customer survey explain what happened and your side of the story include all the numbers at the top of the receipt and what door you exited.

3.) Email there corporate office with the same info.



note: This does not apply to greeters / receipt checkers this for lp agents or renta cops. if they are doing there job correctly they will not even have to second guess themselves whats going on because there are very specific rules in which they must follow. all major retailers are afraid of being sued. lp usually has very little oversight and it requires specific examples to not get anything but a canned response from the store.

role play 1

I walk in put item 1 into my pocket. item 1 is priced at $500. lp see this starts following me i notice. i turn down an aisle and ditch the product in a bay before the lp see's me. I walk out the store and he stops me. this is an nri i have not broken an law did not pass point of sale w/ product. more than likely this is big time bad news for him.

 

[2strokeYardSale]

I walk in put item 1 into my pocket. item 1 is priced at $500. lp see this starts following me i notice. i turn down an aisle and ditch the product in a bay before the lp see's me. I walk out the store and he stops me. this is an nri i have not broken an law did not pass point of sale w/ product.

Concealment with intent to steal, something like that, illegal in California.

 

[motorman4life]

MM4L, what may happen to the police officer who REFUSES to take a citizen's arrest into custody?

142 PC used to require a LEO to take custody, whether we agreed with the arrest or not. The new (c) section exempts citizen's arrests.

The easy way out is to cite them out on a misdemeanor charge (per the (b) section below), file a report with the cite and let the DA sort it out.

849 PC
(a) When an arrest is made without a warrant by a peace officer or private person, the person arrested, if not otherwise released, shall, without unnecessary delay, be taken before the nearest or most accessible magistrate in the county in which the offense is triable, and a complaint stating the charge against the arrested person shall be laid before such magistrate.
(b) Any peace officer may release from custody, instead of taking such person before a magistrate, any person arrested without a warrant whenever:
(1) He or she is satisfied that there are insufficient grounds for making a criminal complaint against the person arrested.
(2) The person arrested was arrested for intoxication only, and no further proceedings are desirable.
(3) The person was arrested only for being under the influence of a controlled substance or drug and such person is delivered to a facility or hospital for treatment and no further proceedings are desirable.
(c) Any record of arrest of a person released pursuant to paragraphs (1) and (3) of subdivision (b) shall include a record of release. Thereafter, such arrest shall not be deemed an arrest, but a detention only.


851.6 PC
(a) In any case in which a person is arrested and released pursuant to paragraph (1) or (3) of subdivision (b) of Section 849, the person shall be issued a certificate, signed by the releasing officer or his superior officer, describing the action as a detention.
(b) In any case in which a person is arrested and released and no accusatory pleading is filed charging him with an offense, the person shall be issued a certificate by the law enforcement agency which arrested him describing the action as a detention.
(c) The Attorney General shall prescribe the form and content of such certificate.
(d) Any reference to the action as an arrest shall be deleted from the arrest records of the arresting agency and of the Bureau of Criminal Identification and Investigation of the Department of Justice. Thereafter, any such record of the action shall refer to it as a detention.

MM4L, also, if placed under citizen's arrest, I could legally be searched for weapons and even cuffed or tied up to prevent escape.

If you submit to such treatment or give reasonable cause for such treatment, yes.

Any private person making the citizen's arrest also takes a risk of being guilty of kidnapping if he prevents the person from leaving the scene -- and not only if he takes him to a detention area -- if his belief that the person committed a felony is not reasonable (or any of the other requisites for a citizen's arrest are not met). As a secutiry officer at Costco I would think twice before performing a citizen's arrest.

With that said, it is only reasonable to open your bag if you signed an agreement to do so. Otherwise, kiss my big black hairy butt.

Actually, in CA, kidnapping requires MOVEMENT. Stopping and detaining you unlawfully would be false imprisonment or simple assault if there is a threat of force and the present ability to carry out the threat. Moving you to an office without your consent (usually that would be under threat or force) would be kidnapping (as I mentioned a few posts ago).

 

[CaN Opener]

Concealment with intent to steal, something like that, illegal in California.

Remember i never defeated any security device or packaging. you could never prove that I have INTENT to permanently deprive the store of there product. I was just storing it in my pocket because i didn't want to hold it in my hand and decided i didn't want to buy it.


instead of being one item it could be 32 pens valued at $5. I know that it would be difficult to carry 32 individually wrapped pens with out a cart or basket. and maybe i noticed lp and decided that I no longer wanted to shop there.


remember im not a lawyer by any means. I am however employed in the loss prevention field and to be honest am ashamed at how my peers abuse / treat people. The profession as a whole has lost respect and integrity.

 

[T-1 Thunder]

I walk in put item 1 into my pocket. item 1 is priced at $500. lp see this starts following me i notice. i turn down an aisle and ditch the product in a bay before the lp see's me. I walk out the store and he stops me. this is an nri i have not broken an law did not pass point of sale w/ product.

Concealment with intent to steal, something like that, illegal in California.

Wrong.

Like I said, if he gets out of view from LP(as he said), they lost one of the requirements to make a stop and therefore cannot make the stop.

LP must keep eye on you the whole time for that very reason. Check my requirements posted earlier in this thread.

 

[essvee]

The short answer is NO, you can't.
I've said it before. "REASONABLE" = them having to watch and see and know a lot about the stolen item, etc BEFORE they make a stop.

I've worked loss prevention, have you?

Your STORE POLICY might be different, but as you can see, I cited the Civil Code. That is what is known as "the law". Practical application might be different, depending on how willing the store you work for wants to cut it. As others have mentioned, they must balance the chance of pissing off a good customer when their loss prevention dude oversteps his bounds, even if legally.

Civilly, there are mitigating issues that muddy the water. Anyone can sue for anything. The threat of a legal action making headlines and sullying the good name of a store makes it worthwhile for the store to train their personnel never to stop someone except under the most clear cases. If I owned a store I'd tell them that was "the law" to prevent some $10 an hour employee from making a million dollar mistake for me.

However, feel free to read 490.5 (f). It's clearly covered. You CAN. You probably don't want to, though.

 

[T-1 Thunder]

Your STORE POLICY might be different, but as you can see, I cited the Civil Code. That is what is known as "the law". Practical application might be different, depending on how willing the store you work for wants to cut it. As others have mentioned, they must balance the chance of pissing off a good customer when their loss prevention dude oversteps his bounds, even if legally.

Civilly, there are mitigating issues that muddy the water. Anyone can sue for anything. The threat of a legal action making headlines and sullying the good name of a store makes it worthwhile for the store to train their personnel never to stop someone except under the most clear cases. If I owned a store I'd tell them that was "the law" to prevent some $10 an hour employee from making a million dollar mistake for me.

However, feel free to read 490.5 (f). It's clearly covered. You CAN. You probably don't want to, though.

You may be right about the store policy vs law thing. Although I think the reason stores set policies is to avoid lawsuits. That was the reason my store(Longs Drugs) had that policy. Of course, my experience was years ago and things may have changed, too.

 

[motorman4life]

LPOs must navigate a sea of rules.. their company LP policies, their individual store policies, their supervisors policies (which in a perfect world, should all be the same, but rarely are. Then they have CA civil and criminal law (which is comparatively liberal), the policies of the DA's office and the policies of the local police (which are likely closer to the laws).

It can be daunting. To say an LP cannot do this or that in all cases would be silly because all of the rules change from store to store, county to county and city to city. In my city, we had 3 major department stores and 3 large grocery stores. Each had different policies. What was common practice in one store may get you fired on the spot in another. Things like "count and color" or "constant observation" as well as "(dressing) room inventory" all have great meaning in the LP world.

Very few stores require their employees to observe the suspect enter the facility.. but some do. Many require independent observation of selection, concealment (or some overt act) and exit beyond the "cashwrap" area. In some cases this can be indirect observation (such as on camera), in others, they want direct observation of one or all of their "elements" to the theft.

My point is, what is required by the DA to file charges is usually much less than what the store's internal LP policies require of their employees. This is because the stores are attempting to reduce or detur "shrinkage" (loss of profits and merchandise from internal and external theft, damage and loss) without incurring additional liability (which would generally exceed the value of the merchandise).

That said, these policies of checking receipts is just another "layer" of security, intended to make the passive (or impulse) shoplifter think twice. Whether it works or how well it works could be debated. I do know that I don't appreciate the unnecessary delay and I feel no obligation to subject myself to an unlawful detention. If they want to arrest me, fine. Do I stop for Costco? Yes. I have agreed to follow their rules as a condition of my membership. I am not a member of Walmart, Kmart or Fry's. I pay for my stuff and leave.

 

[DachWuff]

As a rider, I carry a backpack for my tablet PC (at that time $3000 not including softwhere and work stuff). I ran over to Fry's one day to pick up some puter equipment they were working on for me and got stopped at the door. The gentleman (boy) notified me that they will have to hold my bag. I told him NO thank you. At that time I had my tablet pc and a friends laptop in my backpack and some otherthings that easliy added up to $5000. Funny thing is that they sell both of the laptops I had in my bag. I could see them taking my bag and mistakenly putting my stuff back on there shelves. (lol)
I told them they could have the bag for $9000 and they (supervisor came over) did not find that so amusing. Just then, I saw a girl with a purse (bigger than my bag) walk in without any proplems, I did not want to be an ass so I said nothing. I would have just left but I did need to pick up the stuff they were working on. Eventually someone a little higher up came over said to let me through and started to explain to the employees that Fry's has security cameras and stuff I can't remmember. It felt like I was a criminal before a crime was even committed.
On the way out of Fry's I showed my reciept and did NOT open my bag.

I got the same thing at Frys with my laptop backpack. All you have to do is say you have a computer in there and don't trust them to store it at the podium. They usually understand this since they hire idiots, morons, and flunkies. Then they have you fill out a little form stating what you have, they keep a copy you keep a copy and on the way out they glance in to verify. They can't search but just open and look. Sadly purses do not fall under this, which is pathetic since they can keep more in those than I can in my over stuffed bag.

 

[motorman4life]

Ammo/guns loaded or unloaded on any school campus is a felony. Schools are federaly funded as are goverment buildings. This makes it a felony.

Whether or not schools are federally funded has nothing do do with whether crimes on campus are felonies. Just because federal and felony begin with an "F" does not mean they have anything to do with one another.

Campus crimes are clearly defined in the CA Penal and Education Codes.. I don't know of anyone charged federally with any weapons violation on a school campus unless it was on a military base.

Infractions, misdemeanors and felonies are terms used for types of crimes. The term felony is used in "common law systems" for very serious crimes, whereas misdemeanors are considered to be less serious offenses. This distinction is principally used in criminal law in the United States legal system, where in most cases, a crime punishable by jail time (in many states it is more than five days up to a year in jail) to be a misdemeanor, while considering crimes punishable by greater than a year in jail or prison to be felonies; crimes with a fine only (no jail time or in some cases, 5 days or less in jail) are considered infractions.

Please educate yourself before you attempt to educate others.

 

[Moto4Fun]

So no matter what the checkout guy does, as long as "he's doing his job"(which is an order given by another employee) - he's 100% right all the time?
What I'm the store manager and tell my employees to feel up your wife on the way out the door? Is that ok, too - just because "he's doing his job"?

If the "job" he is doing is unlawful - you have every right to assert your rights.
Unlawful = detaining you, not simply "asking to see" it.



And if "bad guy" turns out to be "good guy" with no stolen items? Then what?

I follow the laws of common sense more often than those established by the government. Fortunately they most often coincide. What is the BFD about someone having a look in your bag to make sure you didn't steal anything? I don't carry the municipal code or US Constitution around in my pocket to call out every person who tries to assert more authority than they should. I give respect where respect is due.

IF Costco's policy is to check your bag when your leave, you either let them check your bag, or you don't shop there. It is an either/or situation. I would let them check my bag because it is not a big deal, throwing a fit about it is just stupid. Grabbing hold of my wife is a totally different ball game.

T-1, I think you may be confusing your store policy with the actual law. But I think someone already pointed that out.

 

[Blind_Io]

^ As my father said, "You can't legislate common sense."

 

[Raider510]

I currently do LP for a major retailer and it's interesting to see how much people don't know about what is a lawful detention and what is a "bad stop." We are not going to stop you and ask you shit unless we KNOW that you have our merchandise. MM4L seems to be very knowledgeable on the LEO side of things, as we have a close relationship with our local PD as well. When we have someone detained and we decide to prosecute, they are going to be found guilty due to the overwhelming evidence. Thats why they have plea deals.

T-1, you made a stop on someone with 1 pen and you didn't have constant observation? that takes some courage man, i wouldn't touch that with a ten foot pole

and like it was pointed out earlier, in CA the simple act of concealment alone is not enough to prove someone's intent to permanently deprive a store of its property. Also, you dont have to be completely out of the store before you can be detained. All we have to prove is that you failed to pay for the merchandise at open and staffed registers and got to the exits where the EAS pedestals are. then you can be stopped it becomes a safety issue once someone is outside, especially for Grab and Runs. of course with that being said, 99 percent of our stops are right outside the doors.

 

[Moto4Fun]

Grab and runs....hmmm, that brings up funny memories of obtaining beer when I was under age, broke, it was after 2, or just for a little adventure! We used to think it was soooo daring. I don't think anybody ever chased us, or even batted an eye. Wow, I used to do some pretty funny stuff. I guess 7-11 doesn't employ LP agents!

 

[NorCalBusa]

Ever wonder why stores alternate the orientation of the nice coat hangers towards/away/towards/away? So you can't grab an armful and dash.

 

[Razorback]

All we have to prove is that you failed to pay for the merchandise at open and staffed registers and got to the exits where the EAS pedestals are

So, what if, through no fault of your own, but you aren't rung up for something? How is intent proved?

 

[zanshin]

I carry a gun.

If a store employee attempted to get physical with me I would draw my weapon and call the police.

There is a lot of case law in CA, if I recall correctly, disallowing detention by LP at stores unless you sign a membership agreement. It has been a few years since
I have perused lexis or westlaw, so my memory is fuzzy.

The best policy is to say no thanks.

If they continue to bother you, call 911 and explain the situation, get a police man there. Get a police report. Use your civil remedies afterward.

I'd love it if LP got physical with me. Might speed up retirement, or help me send the kid to private school.

Seriously, MM, a situation like this does not imply the threat of serious bodily harm or worse, so I think the gun shouldn't clear the Montana farmer overalls in this instance.