shoplifting

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The arrest of a suspected shoplifter presents special legal problems because a private citizen is usually the arrester. The problem is significant economically because an estimated $30 billion worth of merchandise is lost to shoplifters each year and retailers annually spend large sums on efforts to avoid such losses. See N.Y. Times, Dec. 4, 1994, § 3, at 13. The losses are hard to itemize and are uninsurable.

Most shoplifting incidents are petty larcenies. In most states the misdemeanor of petty larceny covers theft of merchandise worth less than $50 or $100. Thus, the shopkeeper's suspicion is usually that someone has committed a misdemeanor. There is no time to get an officer or a warrant. At common law, even a peace officer had no privilege to arrest for a misdemeanor committed in the officer's presence--unless the officer had a warrant--if the misdemeanor involved no breach of the peace.

Even states that have liberalized the common law misdemeanor arrest rules for police officers, may require that the offense have occurred in the officer's presence--an unlikely event in shoplifting cases unless the officer is not in uniform. For a "citizen's arrest," most states require that the misdemeanor have been committed in the citizen's presence and that the person arrested be guilty. In these states, even if a suspected theft occurs in the presence of a store employee, the shopkeeper still arrests at his or her peril:

The arrested person must be proven guilty. Even in more lenient states the shopkeeper must establish that a misdemeanor has indeed occurred. Thus, if a suspect refuses to open packages or explain suspicious conduct, traditional law presents the shopkeeper with the choice of making a possibly unlawful citizen's arrest or letting the suspect go. A similar dilemma is presented if the shopkeeper seeks only to retrieve goods without making an arrest: if, in fact, the suspect has obtained the goods legally, the shopkeeper's
reasonable belief that they were stolen will not protect against liability for battery if force is used to retrieve the goods.

Nor can the shopkeeper solve the problem by seeking the assistance of a police officer. The
shopkeeper who detains the suspect against his or her will until a police officer arrives has in effect made an arrest. If, instead, the shopkeeper chases a suspect down the street shouting, "Stop that man; he is a thief!," and a police officer arrests him, the shopkeeper ...