Illegal Search and Seizures. Fourth Amendment

vanity...question ^ | n/a/ | n/a/

[television is just wrong]

Went into Kmart yesterday. Purchased my item. Walked to the door and a clerk wanted to go through my bag. Her position is called 'loss prevention'

Is This Illegal Search and seizure??? When I have purchased something, it is paid for put in a bag, is it not considered then my personal property? Then why am I subject to having that purchase inspected upon leaving the store???

this practice is expanding. It started at Costco, many years ago, and now it is at many discount stores. Is this actually illegal search and seizure? Do I have a right to refuse to let them look at what are now my belongings???

[Starwolf]

A competent LP person is quite rare these days, the industry is forever whining about its turnover rate. Most LP personnel are ill trained short timers who back off rather than risk a lawsuit. They know full well that their employers will hang them out to dry if they make a mistake.

That said, I try to accomdate them reasonably, such as doing the exit check at Sams Club, but beyond that I have little patience for some of the games I have seen them play.

Similar discussion here, with both points of view represented http://www.ripoffreport.com/reports/ripoff75454.htm

For the record:
- Never been detained
- Never been declared PNG
- No police file

[BeHoldAPaleHorse]

"That said, I try to accomdate them reasonably, such as doing the exit check at Sams Club"

In other words, you really do wuss out, despite your brave words earlier.

[Starwolf]

I understand it well. It says they may detain with probable cause, it does not say imprision, arrest, or search. There is also no requirement to produce identification, provide your name, or provide fingerprints. Moreover, outside of the electronic tracker, probable cause can get very slippery. Refusing demands they can not legally make is not probable cause for LEOs let alone LP.

The standard advice I have seen about how to deal with a confrontation by an LP is to demand that they state why they are detaining you, remain in a public place, and call 911 to report unlawful detention. Once the store management realizes that a mistake has been made, demand a public apology and the termination of the employee involved or you will be filing suit. They will trip over themselves to comply.

Other recommendations I have seen include if the police bother to respond (some departments won't) insist that they seize the camera tapes right them to prevent tampering. Also generate your own recording of the incident. Many cell phones and MP-3 players have that capability.

Despite the above, I am not against legitimate efforts to prevent theft. However some of those in pseudo law enforcement, including LP, have Deity issues. Not allowing them to trample on your rights is not a crime.

[Starwolf]

Not at all. Exit checks are known ahead of time. It is the other improper demands I decline to follow.

My hardcore stance on this is due to several bad experiences I have had/witnessed. The first was right after the first electronic inventory units came out. Due to legitimate equipment I carried as a tech, it set them off even when I was not in the store (the early ones were very crude). The LP got stupid and got injured. Another involved my niece. In both cases the LPs were fired and apologies given.

[Terabitten]

You might want to rethink your reasoning here. As I stated above, the Constitution doesn't need to limit the right of a private citizen/corporation to conduct unreasonable searches and seizures because they were never considered to have any such authority to begin with. You have no right to interfere with the exercise of my freedom of speech (though you are under no obligation to provide a forum for my speech, which is why FR can remove my posts if they wish) or my right to keep and bear arms, even though the Constitution does not apply to you. Likewise, you have no right to conduct any searches or seizures of my person or property.

In the general public, you're correct. You have no rights over me, nor I over you. In my original post, I failed to qualify my answer - my rights extend to the limits of my property. I have *every* right to impinge upon your right to free speech in my home - I can tell you to shut up or leave. Although it gets a little fuzzier in practice, in theory, I have the right to search you without probable cause if you're on my property.

In the public forum, however, you're completely correct.

[justshutupandtakeit]

There is no right to refuse to allow a store to search bags and expect to enter that store. How did you come up with your belief that there is?

[justshutupandtakeit]

Government can legitimately search bags or persons of any entering government buildings.

[1rudeboy]

I understand it well.

No you do not. The "probable cause" standard does not apply to merchants, depending on your jurisdiction, the standard is "reasonable."

[1rudeboy]

The standard advice I have seen about how to deal with a confrontation by an LP is to demand that they state why they are detaining you, remain in a public place, and call 911 to report unlawful detention. Once the store management realizes that a mistake has been made, demand a public apology and the termination of the employee involved or you will be filing suit. They will trip over themselves to comply.

And just to make sure that we are on the same page, if I detain you because I have a reasonable belief that you are leaving my store without paying for my merchandise, then you are in no position to make demands, If you feel that your have been unreasonably detained, then I'll see you in court.

[Bear_Slayer]

So, a search and seizure by a private enterprise would not typically be considered a fourth amendment issue in the first place

So if they open your bag and you've got stolen goods in it, can the police use it as evidence in a shoplifting case?

[Bear_Slayer]

You are not in your home, but on someone else's property

At what point may I violate someone else rights on my property. Can I legally own slaves on my property if they are consenting?

Sure, I've violated their rights, but they are on my property and they are willing.

[Bear_Slayer]

Can I violate another's rights on my private property?

Assume that my friend wishes to entered into slavery at my home. Its on private property, both parties are willing, would this be allowed?

Then why should Walmart violate my 4th only because it is on private property.

[Starwolf]

You are quite correct there is a difference between reasonable cause and probable cause. The privilege and language varies from state to state and in common law. However, I do not ever recall seeing that storekeepers privilege allowed search or person or vehicles, only reasonable detention and recovery of property with limited hot pursuit. Also exercising it erroneously lays the merchant open for legal claims since the wording is vague.

Most LPs, even the few long term professionals in the field, can not provide a irrefutable definition of what constitutes reasonable or probable cause. Also none of their apologists here has asserted that refusal to show a receipt after having left the premises constitutes either reasonable or probable cause.

As for their LP limitations, here is a case that is instructive http://www.aoc.state.nc.us/www/public/coa/opinions/2000/990996-1.htm

LP are like bounty hunters. They operate in a fairly gray area of the law. There is full support for them when they are correct but no protection when they screw up and go after the wrong person. Having been wrongly confronted I don't take any nonsense from them and press hard for consequences (either legal or more immediate) when they do. As BeHoldAPaleHorse pointed out they can generate police file entries on civilians without their knowledge or appeal. Its only right that they face unlawful detention, assault and other charges when they are wrong.

[Starwolf]

Wrong: I can demand you state why you are detaining me. (which is exactly what I stated earlier). Failure to clearly state the reason and thereby invoke Storekeeper's Privilege (it does not have to be explicit) means you are breaking the law.

If I have not been in your store (as in the case I cited earlier) I am free to ignore you and leave the parking lot Any actions you take to prevent that are unlawful at that point. Mistaken identity is not an affirmative defense for A&B and unlawful detention.

The key item is what is reasonable suspicion. If you are wrong the person you accused can do devastating things to your life in addition to your employer dumping you like week old fish. Seen it happen more than once.

[Terabitten]

Assume that my friend wishes to entered into slavery at my home. Its on private property, both parties are willing, would this be allowed?

Yep. In fact, there are certain adult magazines and videos devoted solely to that topic. :)

[Fatalist]

I have *every* right to impinge upon your right to free speech in my home - I can tell you to shut up or leave.

Yes, you can. But that is all you can do. You can't take legal action against me unless I refuse to take one of those two options. If I do refuse to shut up or leave, then I am trespassing and you have cause for legal action.

Likewise, if I am told my bag must be searched, I have two options: allow the search, or leave. So long as I am willing to leave the premises, there is no further action that can be taken.

Now, if I am told when I enter the store that I must consent to be searched when I make a purchase, then I give my consent simply by making that purchase. Failing to allow a search at that point means I've violated the conditions of my being there and action can be taken.

Although it gets a little fuzzier in practice, in theory, I have the right to search you without probable cause if you're on my property.

There are laws in place that give merchants the right to search in certain circumstances. The details and scope of the laws vary, but the searches can never be unreasonable because the government can't grant authority it doesn't itself possess.

[tpaine]

Fatalist wrote:

There are laws in place that give merchants the right to search in certain circumstances. The details and scope of the laws vary, but the searches can never be unreasonable because the government can't grant authority it doesn't itself possess.


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An excellent example of such a State law is posted here a #64:

Replies
Address:http://www.freerepublic.com/focus/f-news/1570061/replies?c=64

But as you say, the main point everyone here seems to ignore is that neither governments nor individuals have the power to search or detain another person ~ unless ~ that individual can reasonably be seen to be in the process of commiting a criminal act.

[gondramB]

"There is no right to refuse to allow a store to search bags and expect to enter that store. How did you come up with your belief that there is?"

We are actually talking about exiting, not entering. As you point out, you don't have to be searched on the way in but they don't have to let you in - that's why I won't go to Six Flags over Georgia - I object to them searching my wife's purse.

But I don't think it is legal to put those restrictions on being allowed to leave. unless they have caught you in the middle of a crime then they risk false imprisonment charges.

In fact an innocent's person's best response to store hassles is to be the one to say "I want to get an on duty polieman involved - I believe you are committing a crime."

[KrisKrinkle]

"...I think ownership starts after you leave the store, for anything you didn't bring with you upon entering."

Does that mean I retain ownershop of whatever money I paid for that "anything" until I leave the store and my ownership of the "anything" starts?

Can I just go get it if I still retain ownership?

Or does the store have ownership of the money and the "anything" until I leave?

Is there any point at which I can have ownership of both the money and the "anything"?