Illegal search?

I was at Toys R Us buying a train set for my toddler son. On my way out, the employees stopped a lady walking out and asked to see the contents of her purse (they thought she might be stealing).

The lady became irate and and annoyed but let the employees take a look inside. There was nothing inside and the employees let her exit. She complained to them, asking "Do I look like a thief?" and told them they embarrased her, then left.

Is this search legal? Is it a violation of the 4th amendment? I did not see any signs posted syaing they reserve the right to search personal bags, but I wasn't looking for these signs anyway.

What would happen to me if they wanted to search my backpack and I tell them to "kiss my arse" and refuse search? Can I get arrested???

I found this article:
http://legallad.quickanddirtytips.com/store-security-part-2.aspx

Here are some a relevant excerpt.

The short answer is that merchants do, in fact, have the right to search and detain you if they have sufficient reasons to believe that you have shoplifted. However, with regard to Matt’s question: Yes, if you are just leaving the store after a routine shopping trip, you generally have the right to exit a store without inspection. If a security guard at Best Buy asks to see your receipt, you have two options. You may voluntarily agree to be searched. Alternatively, you may say no and simply walk by. The guard must have some reason to believe you stole something before he can search you and refusing to allow the guard to check your bag is not a good enough reason on its own. There must be something more.

The answer is complicated. It is not a violation of the 4th Amendment because it is not state action. The 4th Amendment (and all of the Constituional Amendments, excluding the 13th and 14th) apply only to the government. A private citizen doesn't need to go through the same constitutional standards to justify a search, and anything discovered may potentially be admissible in court, depending on the facts of how the item was found (i.e., durress, illegal wiretap).

However, that does not preclude someone from a civil claim for a civil rights violation and/or other civil claim (unlawful imprisonment, for example). In this woman's case, it is unlikely she has a claim. Most stores reserve the right to search a customer's belongings. As long as the search is reasonable and unduly burdensome, she most likely has no claim. If you were to leave, they may not be able to prosecute you if they can't catch you. They would have to have a video and/or eyewitness able to identify you to arrest and prosecute. But if it was just a random search based on a hunch and you managed to get away, you may get lucky and avoid criminal charges.

I thought all big box stores had those anti theft systems at the entrances that sound an alarm if you try to steal?

Basically, the only stores that have any ground to try and stop you is those that you have a membership, and that is because you will have agreed to something.

She should have refused, and made them call the police and had some documentation.

As soon as you agree to a search you just voided any rights you might have.

I would have refused and made them call a real cop. Never,I repeat never,let anyone search without a warrant. In the case of the police they may search without a warrant in certain cases.Even then you should request they have a warrant. Never give up your rights,especially,to some minimum wage store employee with minimum training and no real authority.

I would have had the employees responsible fired on the spot. I don't care how legal or illegal it is. As someone said I would have either had them call a real police officer or told them no and left. If they had tried to stop me I am pretty sure you could easily have a claim against them for assault. I am fairly sure this is easier to pull off in some states.

Here in Arizona I would be AMAZED if anyone tried to stop anyone because everyone in this crazy state carries a gun lol (really easy to get a conceal carry permit and such).

Either way, not knowing what the employees saw I can't say whether they were justified or not, but I have been to stores before where the employees follow me around even though in the past my outfit has probably been worth more than their monthly wage :/ . That might sound like kind of an ahole comment, but I think a large part of retail is reading your customers, to an extent of course. If they had stopped me though I can assure you I would have them call the police or let me go and would never have agreed to be searched, if they want to try embarrassing you, embarrass them instead .

I would also just comment on the Best Buy thing, the only time I feel like they have the right to see my receipt is when I walk out of the store not going through the checkout. So like if I made a return and purchased something at the return counter, I will show them my receipt because I feel like that is a legitimate request.

Whatever I am probably a giant, not nice person...But with the way retail employees treat their customers I am surprised anyone still shops at some of these big box stores as it is.

k2clones29 said:

The answer is complicated. It is not a violation of the 4th Amendment because it is not state action. The 4th Amendment (and all of the Constituional Amendments, excluding the 13th and 14th) apply only to the government. A private citizen doesn't need to go through the same constitutional standards to justify a search, and anything discovered may potentially be admissible in court, depending on the facts of how the item was found (i.e., durress, illegal wiretap).

However, that does not preclude someone from a civil claim for a civil rights violation and/or other civil claim (unlawful imprisonment, for example). In this woman's case, it is unlikely she has a claim. Most stores reserve the right to search a customer's belongings. As long as the search is reasonable and unduly burdensome, she most likely has no claim. If you were to leave, they may not be able to prosecute you if they can't catch you. They would have to have a video and/or eyewitness able to identify you to arrest and prosecute. But if it was just a random search based on a hunch and you managed to get away, you may get lucky and avoid criminal charges.

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+1. You have to have state action to have a violation of the 4th Amendment. Here you have a private store, so you'd have to prove somehow that the store was acting as an instrumentality of the state (unlikely) OR look into other claims as K2 points out in his second paragraph.

On a similar note, can a store require you leave bags that you bring in with you with them while you shop? The one store in particular that comes to mind is an antique store, where I've had to "check" my backpack with them at the counter by the front door when I entered the store. I understand the reason and haven't minded doing it, but this thread makes me wonder if I would have the right to refuse and enter the store without them being able to legally stop me?

+1 I would have had them call the police to warrant the search.

jakespoppy said:

On a similar note, can a store require you leave bags that you bring in with you with them while you shop? The one store in particular that comes to mind is an antique store, where I've had to "check" my backpack with them at the counter by the front door when I entered the store. I understand the reason and haven't minded doing it, but this thread makes me wonder if I would have the right to refuse and enter the store without them being able to legally stop me?

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To answer Jakespoppy's question: It's not a question of "them being able to legally stop" you. It's private property -- if you don't comply with their policies, their remedy is to simply refuse your business, and ask you to leave. If you refuse, you are trespassing. As a business, it makes more sense for them to enforce their policy on 100% of the customers, as opposed to the ones that simply look suspicious.

Years ago when I worked for a large paint company we were told to not stop anyone that was leaving the store we thought was shoplifting. The trainer told us there are people out there that try to set up this type of senario in hopes of being able to sue the company. Instead we were told if we felt that someone was trying to shoplift, we should be overly helpful. Keep on stopping by the person to ask them if there was anything they need. If you saw them from across the store call over to them to make a comment on the product that they were looking at.

DSB said:

To answer Jakespoppy's question: It's not a question of "them being able to legally stop" you. It's private property -- if you don't comply with their policies, their remedy is to simply refuse your business, and ask you to leave. If you refuse, you are trespassing. As a business, it makes more sense for them to enforce their policy on 100% of the customers, as opposed to the ones that simply look suspicious.

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Exactly. That is 100% correct. What a private business does for security measures may seem wrong, but as long as it is rationally based and non-intrusive, your only choice is to comply or let the free market work it's magic and you shop somewhere else.

k2clones29 said:

Exactly. That is 100% correct. What a private business does for security measures may seem wrong, but as long as it is rationally based and non-intrusive, your only choice is to comply or let the free market work it's magic and you shop somewhere else.

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This was my thought as well, that the only right they have is to refuse service and ask that you leave.

Also, kwk this is what they told me when I worked at a retail chain as well...Their reasoning might have been the same (though they didn't tell us that). They told us that it was for our own safety and protection though, in case they had a weapon I always thought.

tet6t8 said:

I would have refused and made them call a real cop. Never,I repeat never,let anyone search without a warrant. In the case of the police they may search without a warrant in certain cases.Even then you should request they have a warrant. Never give up your rights,especially,to some minimum wage store employee with minimum training and no real authority.

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tet6t8:
+ 1 and no 'rent and/or mall cop' will ever search the Mrs. or me...period

"A police force is made up of amazing people...and I greatly respect all of them". Christopher

As former law enforcement the answer is...it's private property and when you enter it you are subject to their rules. They can do whatever they want. If you disagree it's up to them to call the police and if you feel your treatment was over the line you can sue them. otherwise, don't patronize the establishment.

I'm all for principal, but on this issue, practicality wins for me. IMHO, the rules of thumb are as follows:

If it is a police officer or other governmental agent, always REFUSE a search (this includes positions like tax assessors). This doesn't mean that he or she won't have other reasons to justify a search, but you preserve your rights by refusing, and you have the right to refuse.

If it is a private security guard, comply UNLESS you either have something to hide (stolen item, drugs) or you don't mind being inconvenienced. If you refuse, you can bet the police will be called, they will do a search, the search will be lawful, and you will be banned from the establishment. Practically speaking, if you haven't done anything wrong, it's easier to just open the bag and show your receipt.

I truly believe the free market dictates here. If you don't want to be subjected to the security measures of a Toys 'R us, then go to Ma & Pa's Toy Store where the security measures are much less intrusive, but the prices are higher. Part of the reason for the lower prices in the national chain is their "inventory control." The local store is unlikely to have the same resources to hire security and has to accept a higher percentage of theft, so it is compensated in the higher price (among other factors). If you don't like the security that is put in place to help keep prices lower, then go somewhere else and pay more for the same product.

I'm sorry but That's not true k3Clones. A private Property owner can only force you to comply with a search if you have signed something. At best buy, walmart, and anywhere else that you don't have a membership to you can just walk out ignoring the security officer. If they call the cops (not likely*) then the cop won't have any reasonable suspicion to start a search of your property either. They can't search or detain you unless they think you stole something, and if they try to do so, you can sue them.

*Most stores will not detain you or try to search you if you actively refuse because they will be on extremely shaky legal footing; To be totally safe for detaining you they have to be 100% sure that you stole something, it's not worth the risk for them to do it if they just wanted to check your receipt as a show of security (that's what that section is, most damage from thefts are statistically from employees; the search at exit is a deterrent for the casual swipe gum thieves..)