With respect to the crime of shoplifting, Alabama law allows peace officers, merchants or their employees who have probable cause to reasonably detain persons suspected of shoplifting. The law provides:
§15-10-14. Detention and arrest of persons suspected of larceny of goods held for sale.
(a) A peace officer, a merchant or a merchant’s employee who has probable cause for believing that goods held for sale by the merchant have been unlawfully taken by a person (and that he can recover them by taking the person into custody) may, for the purpose of attempting to effect such recovery, take the person into custody and detain him in a reasonable manner for a reasonable length of time. Such taking into custody and detention by a peace officer, merchant or merchant’s employee shall not render such peace officer, merchant or merchant’s employee criminally or civilly liable for false arrest, false imprisonment or unlawful detention.
(b) Any peace officer may arrest without warrant any person he has probable cause for believing has committed larceny in retail or wholesale establishments.
(c) A merchant or a merchant’s employee who causes such arrest as provided for in subsection (a) of this section of a person for larceny of goods held for sale shall not be criminally or civilly liable for false arrest or false imprisonment where the merchant or merchant’s employee has probable cause for believeing that the person arrested committed larceny of goods held for sale.
§13A-8-2. Theft of property – Definition.
A person commits the crime of theft of property if he or she:
(1) Knowingly obtains or exerts unauthorized control over the property of another, with intent to deprive the owner of his or her property;
(2) Knowingly obtains by deception control over the property of another, with intent to deprive the owner of his or her property;
(3) Knowingly obtains or exerts control over property in custody of a law enforcement agency which was explicitly represented to the person by an agent of the law
enforcement agency as being stolen.
Moreover, state law classifies the three degrees of theft of property based on the specific item involved in the theft and the amount of value attributed to the stolen item.
§13A-8-3. Theft of property in the first degree.
(a) The theft of property which exceeds $2,500 in value, or property of any value taken from the person of another, constitutes theft of property in the first degree.
(b) The theft of a motor vehicle, regardless of its value, constitutes theft of property in the first degree.
(c) (1) The theft of property which involves any of the following constitutes theft of property in the first degree:
a. The theft is a common plan or scheme by one or more persons; and
b. The object of the common plan or scheme is to sell or transfer the property to another person or business that buys the property with the knowledge or reasonable belief that the property is stolen; and
c. The aggregate value of the property stolen is at least one thousand dollars ($1,000) within a 180-day period.
(c) (2) If the offense under this subsection involves two or more counties, prosecution may be commenced in any one of those counties in which the offense occurred or in which the property was disposed.
(d) Theft of property in the first degree is a Class B felony.
§13A-8-4. Theft of property in the second degree.
(a) The theft of property which exceeds $500 in value but does not exceed $2,500 in value, and which is not taken from the person of another, constitutes theft of property in the second degree.
(b) Theft of property in the second degree is a Class C felony.
(c) The theft of a credit card or a debit card, regardless of its value, constitutes theft of property in the second degree.
(d) The theft of a firearm, rifle or shotgun, regardless of its value, constitutes theft of property in the second degree.
(e) The theft of any substance controlled by Chapter 2 of Title 20 or any amendments thereto, regardless of value, constitutes theft of property in the second degree.
(f) The theft of any livestock which includes cattle, swine, equine or equidae, or sheep, regardless of their value, constitutes theft of property in the second degree.
(g) Notwithstanding subsection (a), the theft of property which exceeds $250 in value but does not exceed $2,500 in value, and which is not taken from the person of another, where the defendant has previously been convicted of a theft of property in the first or second degree, constitutes theft of property in the second degree.
§13A-8-5. Theft of property in the third degree.
(a) The theft of property which does not exceed five-hundred dollars ($500) in value and which is not taken from the person of another constitutes theft of property in the third degree.
(b) Theft of property in the third degree is a Class A misdemeanor.
DETENTION OF A SUSPECTED SHOPLIFTER
Merchants who detain persons suspected of shoplifting must do so in accordance with state law in order to avoid civil liability for false arrest, false imprisonment or unlawful detention. As stated in the shopkeeper’s statute, merchants are protected from criminal or civil liability for false arrest or false imprisonment only if the merchant or merchant’s employee has probable cause, at the time of the detention, to believe that the arrested person committed the crime of theft of the merchant’s goods held out for sale. Further, the detention of the suspected shoplifter by a merchant, merchant’s employee or peace officer must be done in a reasonable manner and for a reasonable length of time. Merchants should note that the reasonableness of the detention depends upon the facts and circumstances of each case.
WHO IS PROTECTED BY THE SHOPLIFTER PRIVILEGE STATUTE?
The shoplifter privilege statute applies to a peace officer, a merchant or an employee of the merchant.
WHAT IS PROBABLE CAUSE?
Probable cause is a legal term which is often the subject of litigation with respect to cases involving false imprisonment, false arrest or malicious prosecution claims. The issue of whether or not a merchant or merchant’s employee had probable cause to detain a suspected shoplifter depends on the specific facts and circumstances of the situation. In false imprisonment actions, “probable cause” is defined as “a reasonable ground of suspicion supported by circumstances sufficient in themselves to warrant a cautious man in believing the accused to be guilty, but does not depend on the actual state of case in point of fact, as it may turn out upon legal investigation, but on knowledge of facts which would be sufficient to induce reasonable belief in truth of accusation.” Black’s Law Dictionary, 1201 (6th ed. 1990)
In Crown Central Petroleum Corporation v. Williams, a false imprisonment case decided on April 26, 1996, the Alabama Supreme Court defined probable cause as “such a state of facts in the mind of the prosecutor as would lead a man of ordinary caution and prudence to believe or entertain an honest or strong suspicion that the person arrested is guilty.” In other words, before the individual is detained, in order to establish probable cause, merchants are not required to have sufficient information that would more than likely result in the suspected shoplifter’s conviction in a court of law, if the person is prosecuted. Rather, probable cause demands that a merchant have a reasonable belief (from personal observation or reliable second-hand sources) at the time of detention that the suspected individual is guilty of shoplifting.
WHY IS IT IMPORTANT FOR MERCHANTS TO ESTABLISH PROBABLE CAUSE?
In order to avail oneself of the protection afforded under the shopkeeper privilege statute, a merchant must have had probable cause at the time of the individual’s detention or arrest to believe that the person is guilty of “theft of property” as defined by law of the merchant’s goods. Again, it is important to emphasize that whether or not a merchant or merchant’s employee had probable cause is measured by the surrounding circumstances which led the merchant or merchant’s employee to reasonably believe at the time of the individual’s detention that the person is a suspected shoplifter. Courts determine the existence of probable cause on a case-by-case basis.
Therefore, it is incumbent upon merchants to have probable cause to believe that the suspected shoplifter is guilty of theft of the merchant’s goods before they reasonably detain or cause the arrest of a shoplifter. It is a good practice for merchants to conduct reasonable investigations to confirm their suspicions or beliefs before reasonably detaining suspected shoplifters. Often times the determination of whether a merchant had sufficient probable cause depends largely on the fact that such an inquiry was made.
Merchants who personally observe and apprehend an individual in the act of shoplifting will have an easier time of proving that they had probable cause to detain the suspected shoplifter. For example, probable cause was established in a case where a retailer apprehended a customer who walked out of the store without paying for the retailer’s videocassettes which were found in the customer’s possession.
In situations where an individual is suspected of shoplifting and after an investigation the person turns out not to be in possession of unpurchased items, the merchant must prove that he or his employee had probable cause to detain or arrest the shopper. Merchants should be certain that there are sufficient facts and circumstances about which he or his employees could testify, which would demonstrate that there were reasonable grounds (based on personal observation or from a reliable second-hand source) for suspecting the person of shoplifting. For example, a merchant established probable cause in a case where security personnel observed two customers concealing unpurchased merchandise on their persons. The security personnel detained the individuals and contacted the police. After a search of the shoppers, none of the retailer’s merchandise was found among the customer’s belongings. Nonetheless, the information supplied by the security personnel who worked in the retailer’s establishment about the suspected shoppers was found to be reliable, which further resulted in a finding of probable cause.