Legal aspects of door searches

The issue of whether stores can ask for a receipt at the door and whether they can detain you has gone to court multiple times before. Looking through the comments of the slashdot story, I extracted links to some important websites. I will present what I consider to be the most important of those, and follow it by (hopefully) precise and carefully articulated thoughts on the affects of them.

First off, here's a website that describes the legal standing:

http://www.crimedoctor.com/loss_prevention_3.htm


Can Merchants Do This?

Yes, as long as the procedure is voluntary. The bag inspection should occur past the last point of payment solely for the purpose of verifying the sales transaction that just occurred. The door bag checker is looking to see that the cashier correctly charged for all items in the shopping bag or cart. Once this is done, the bag checker makes a distinctive mark on the receipt to indicate that it was checked.

A merchant is free to put procedures in place to help curb their losses due to theft. It is estimated that 11 billion of dollars are lost every year due to shoplifting alone. These unchecked losses will soon put many retailers out of business unless they take some proactive step. This bothersome procedure is very effective in preventing employee theft, shoplifting, and refund fraud.
So what’s all the fuss about? Merchants already have lots of anti-theft procedures in place that consumers endure. There are video surveillance cameras and undercover officers that watch you shop. There are little plastic devices attached to soft goods called electronic article surveillance tags (EAS) that must be removed by a salesperson to prevent an alarm from going off at the exit. There are items displayed under lock and key that you can’t access without assistance. There are items where you must take a paper ticket to the cashier to have the item brought to the checkout stand. None of these procedures are consumer friendly, but are deemed necessary by some retailers for survival. After reading this, if this procedure is still offensive to consumers they should shop elsewhere.


Are Door Bag Searches Legal?

Yes, as long as the inspection is voluntary. No, if the bag check is involuntary or coerced. This is a rather fine legal distinction that is subject to misunderstanding and abuse. Basically, nothing in the law gives the merchant the right to detain a customer for the purpose of searching a shopping bag unless there is a reasonable suspicion of retail theft. See my web page on Shoplifting: Detention & Arrest for more details

A customer can refuse to have their bag checked and simply walk out the door past the bag checker. Hopefully the bag checker has been trained to know that they cannot force anyone to submit to a bag search without cause. This is important because the expectation of the bag checker is that all bag contents have been purchased. The worst thing that could happen is that an aggressive bag checker would forcibly detain or threaten a customer who refused to comply with the voluntary search


The most important part:

http://www.crimedoctor.com/shopliftingPC.htm

To establish a solid base for probable cause, and prevent false arrest claims, there are six universally accepted steps that a merchant should be follow before detaining someone suspected of shoplifting:
You must see the shoplifter approach your merchandise
You must see the shoplifter select your merchandise
You must see the shoplifter conceal, carry away or convert your merchandise
You must maintain continuous observation the shoplifter
You must see the shoplifter fail to pay for the merchandise
You must approach the shoplifter outside of the store


Here is a post (on the slashdot article) about Texas, of all places:

Store searches cannot be enforced in Texas
(Score:5, Informative)
by jeko (179919) on Monday September 03, @02:23PM (#20453977)
Here's why:

BTW, I'm basically quoting, of all things, a decision by the Texas Supreme Court. Texas is one of the states the unequivocally says you can walk right by the guy at the door with a grin and a wave.

1. Simply entering private property does not give the owner the right to forcibly search you. e.g. You show up to a friend's barbecue. Silverware goes missing. Your friend can ask you to leave. Your friend cannot forcibly search you.

2. A place of business is private property, but you actually LOSE rights as a property owner when you open to the public for business. In my own home, I am allowed to be as racist, sexist and as homophobic as I choose to be. In my own restaurant open to the public, I'd better serve all customers equally.

3. Once the store accepts payment, everything in your bag, including the bag, becomes your property. Money has changed hands, the transaction has been completed. It's your stuff, just as much as your wallet and underwear.

4. The store is well aware of the transaction and the fact that this is now your property. Most store have exits within sight of the cash register, if not in fact FUNNELED through them. We can also prove from the records that the store knows this is now your property.

5. While the Fourth Amendment does not apply to the store, there is absolutely NO law that GIVES them the right to search. See point one. The Fourth Amendment limits the Authority of Government. The store has NO authority to begin with. Saying the Fourth Amendment doesn't apply so the Store can search is like saying traffic cops can't pull over every pretty blonde they see, but since I'm a private citizen I can.

6. While stores do have the right to detain shoplifters, the store had better be ready to supply a videotape or a witness who will testify to the theft.

7. When testifying under oath, the stores admitted some wonderfully interesting points. One, the searches at the door caught virtually no shoplifters, and two, the searches at the door NEVER "helped the customer" by making sure they actually received all the items they paid for. Even if the searches did find "forgotten items" the cashier should have placed in the customer's cart, you can't force someone to accept your help. The stores were forced to admit the searches at the door were for "deterrence," in other words, security theater. Don't shoplift because we're searching you at the door.

Oddly enough, for once in its existence, the Texas Supreme Court made the right call on this one. In the State of Texas, stores cannot detain you at the door for as search. In addition, since you cannot sign away your legal rights in a contract -- you cannot sell yourself into slavery, an employment agreement where you agree you work for less than minimum wage is void -- not even Sam's and Costco can force this as part of the "membership."

The only reason door searches exist in Texas is that people voluntarily put up with them.


In summary, bag/receipt checks are legal as long as they are voluntary. A person can not be coerced or forced to comply with them and especially, detaining a person without probable cause (and refusing the search is NOT probably cause) is very much illegal. It can be classified as kidnapping.

It can be a store's policy to do a receipt check but that doesn't bind anyone walking into the store to comply with it. You can do so voluntarily. If you do not submit to the check, they can ask you to leave the store and not come back. This applies to Costco as well - they can terminate the contract with you (your membership), but they can not force you to submit to the search.



Here are my personal opinions on bag/receipt checks:

The assumption as I see it is that you are basically acknowledging that you are a criminal and need to prove your innocence. A lot of people don't know the legal issues and submit to the search thinking that they have to. The effect I see is that most people become used to the idea of being searched. When a cop or other "official" wants to do a deeper search, like of pockets, clothing, car, or home, people are already used to it to the point that they don't give it a second thought. An argument often made about warrentless spying is that if you have nothing to hide, you have nothing to worry about, which is essentially true if the "officials" are completely lawful, are only trying to catch shoplifters/terrorists. The obvious problem is that power corrupts. When you're dealing with a corporation, it's astoundingly stupid to think they are only trying to do the "right thing."

As people are conditioned to think that they are criminals and need to prove their innocence, a subtle but fundamental change in the purpose of government takes place. The question is no longer about us (the people) demanding that government protect us from bad things happening, but rather that we need to continually prove to the government that we're not doing anything wrong. Instead of "consent to be governed" it's more like them consenting to allow us to live. Changing people's perception by getting them to submit to the authority of the store is part of what changes people's perception. Not only that, but people start to think of the store as an authority similar to government.

Whether these door checks do any good is highly debatable. One of the posts on slashdot was from a guy who claimed to work at a store, or had worked at a store, and he said they did very little good in terms of catching shoplifting. I would think that since the stop-loss guy is always right after the cashier, there is a vanishingly small chance of someone picking up more stuff after the cashier and putting it in the bag - which is what is being checked.

My conclusion from the above is that bag/receipt checks are for show and possibly social conditioning (not sure the latter is an official goal). It's kind of like the extra airport checks, making people turn down their belts, take of shoes, etc. which amounts to little more than a "show." In some cases, the airport checks can be a subtle form of rape, like when they go through a woman's purse, take out her tampons, hold them up and examine them. For the record, I know of a case where that did happen to a friend of mine, so it's not "something that would never happen." Back to the point at hand, bag/receipt checks look to me like just a show, for deterrent.

Now personally, I don't want to give up my rights to not be searched for a "show of force." In some cases, I may allow things that I could rightfully refuse if I thought they would do a lot of good. This isn't one of those cases. Furthermore, it's giving up my rights to corporations for their benefit.

So I still go to Fry's. When I leave and the stop-loss person asks me to show my receipt, I say "No thanks," just as the guy as circuit city did. It's a polite way to refuse to give up my rights. If they were to press the matter by detaining me, all hell would break loose, including defending myself against assault of unlawful detainment (kidnapping, and good luck since I'm 6'4"), and suing if need be. If they have any evidence at all that I shoplifted, and that does not include simply my refusing to give up my rights to them, I'd be happy to let them search the bag and receipt. But they have to have a reason beyond "it's store policy to assume you're a criminal."

-mwalker

submitted to a "bag check," and have never been challenged.

And some years back, when the clerk at Home Depot insisted that I had to supply my phone number before ringing up my purchase, I left over $700 worth of stuff right there at the register. Then went to the manager and told her why her people would be re-shelving all that stuff while I was driving to Lowe's to give them my business instead.

Mrs R, of course, told me I should just have given them a fake phone number. Yeah, that would have been easier, but fuck 'em, I was not about to put up with that crap. It was well worth my time to shop twice to not put up with that nonsense.

Redstone

Why didn't you just go along with the harmless little request?(inserts sarcasm tag)

Nonsense it is. The chance that any of it ever has a trickle down benefit to consumers is slim to none.