Detention by Security Staff for Suspected Retail Theft
Shoplifting (“retail theft”) charges under Utah law can be filed either at the misdemeanor or felony level depending on the value of the merchandise involved and the prior criminal history of the defendant.
Many retail theft prosecutions begin with an initial detention by store security personnel even before police are contacted regarding the alleged shoplifting. Legal issues arising from such private detentions can increase the severity of the criminal prosecution.
The best defense attorneys ask questions that police don’t.
Question: Can store security detain by force a person suspected of shoplifting or retail theft in Utah?
Many retail stores have company policies that restrict or discourage ordinary employees from pursuing, detaining, or otherwise attempting to engage a suspected shoplifter. For company liability reasons, many stores permit only trained security personnel from confronting a person suspected of retail theft.
But under Utah Code 76-6-603, any “merchant” (generally interpreted as including any store employee or other person acting on behalf of a retail merchant) can detain a person who is suspected of violating Utah’s retail theft statute. While Utah case law suggests that some level of physical force can be used in making this kind of detention, the statute does place limits on this authority.
The best attorneys understand that the effects of a criminal charge extend beyond the courtroom.
Reasonableness – The statute granting a merchant the authority to detain a suspected shoplifter requires that any detention be done in “a reasonable manner” and only for a “reasonable length of time.” What may be considered reasonable may depend on the specific facts and circumstances of each individual case.
Probable Cause – Before using force to detain a suspected shoplifter, a store employee must have evidence or information sufficient to give the merchant probable cause to believe that the person has committed an act of retail theft. Probable cause requirements in this context are generally treated differently than the probable cause requirements imposed on police under the Fourth Amendment. While a violation of Fourth Amendment rights committed by police may lead to a successful motion to suppress, Utah case law suggests that detention by a store employee under Utah Code 76-6-603 will not be considered government action, and therefore is likely not subject to the exclusionary rule.
Store Premises – Utah law provides that a merchant can detain the suspected shoplifter either while the person is still on the store premises, or after they have left. While the statute does not provide any specific restrictions on how far off the premises a suspect may be when detained by the merchant, it does require that off-premises must be made while in “immediate” pursuit of the suspect.
A successful defense strategy starts with an understanding of your goals and needs.
Purpose of the Detention – The purpose of the detention must be related to suspected shoplifting or retail theft. But the Utah statute governing such detentions gives broad authority, allowing detention for the following purposes:
- to make reasonable inquiry as to whether such person has in his possession unpurchased merchandise and to make reasonable investigation of the ownership of such merchandise;
- to request identification;
- to verify such identification;
- to make a reasonable request of such person to place or keep in full view any merchandise such individual may have removed, or which the merchant has reason to believe he may have removed, from its place of display or elsewhere, whether for examination, purchase, or for any other reasonable purpose;
- to inform a peace officer of the detention of the person and surrender that person to the custody of a peace officer; and
- in the case of a minor, to inform a peace officer, the parents, guardian, or other private person interested in the welfare of that minor immediately, if possible, of this detention and to surrender custody of such minor to such person.
If you are detained by store security personnel on suspicion of shoplifting, it is important that you not use any physical force in resisting or attempting to leave. Using force (or even merely threatening to use force) against a store employee or other person in the course of committing, attempting to commit, or fleeing following the commission of a retail theft can result in much more serious charges of robbery. Under Utah law, a robbery charge begins at the second-degree felony level, and carries a penalty of up to 15 years in prison.
Potential Penalties for a Shoplifting Conviction
Penalties for retail theft in Utah can include felony prison time for repeat offenders or for thefts of high-value merchandise. But most retail theft and shoplifting charges are filed as misdemeanors. Most cases involve merchandise valued at less than $500, and therefore involve class B misdemeanor charges.
The right defense attorney can make the difference you need.
A class B misdemeanor retail theft charge is punishable by up to 180 days in jail, and nearly $2000 in fines and surcharges. Jail time is not mandatory in shoplifting cases. Instead, a judge imposing sentence has discretion to grant the opportunity of probation in lieu of jail time actually being served.
In some cases, a plea-in-abeyance agreement may be obtained. A plea-in-abeyance is a negotiated settlement that requires the agreement of the prosecutor and the consent of the court. If a plea-in-abeyance is successfully completed, in most cases this will result in a complete dismissal of the charges.
Choosing a Criminal Attorney for Shoplifting Charges
Any criminal case should be taken seriously. Even misdemeanor charges carry the possibility of criminal record, jail time, substantial fines, and more.
Having an experienced criminal attorney on your side can help ensure that your rights are protected and that you have the best chance of a successful outcome. Contact us directly to see how the right attorney can help you.
