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???

[television is just wrong]

This is why I posted. I wanted some constructive insight. I didnot want to push the issue if I had no right. Thanks to all of you. You were a great insight.

It is embarassing to have a store clerk assume you have stolen from them.

[Terabitten]

they more than likely already have to pay for the loss prevention clerk The one inconvenienced is the paying customer as usual.

Then shop online.

[Senator Bedfellow]

Verifying that a shopping bag you are removing from the premises does not contain items not paid for is hardly battery.

It is if I say no and they attempt to search anyway.

[television is just wrong]

I just find this insulting.

[Senator Bedfellow]

The real question for you is how much hassle you're willing to endure. You can certainly refuse and very likely end up leaving without being searched, but it may be an enormous hassle before you get to that point. I guess it depends on whether standing on principle is worth to you the time it'll take to do it. ;)

[VRWCmember]

It is embarassing to have a store clerk assume you have stolen from them.

You need thicker skin. Verifying that items being removed have been paid for is NOT assuming you have stolen, any more than checking an ID when you pay by check is assuming you are a forger. Would you want somebody else to be able to withdraw cash from your bank account just because you wouldn't want the bank to embarrass that person by assuming he/she was a thief? Or would you prefer that the bank verify that the person removing money from your account is actually you?

[MineralMan]

Of course you are, and they can detain you until the police arrives.

So, the store wants to look in the store bag before you leave the store. Who cares? Takes 5 seconds.

I worry about lots of things, but some guy checking the bag to see that I didn't steal anything in a store is no big deal to me.

Your opinion may differ. I'll watch as you assert your rights, but just briefly before I go to my car with my purchases.

[Sybeck1]

This surely isn't Waco, where the government went wrong.

[MineralMan]

"Would you want somebody else to be able to withdraw cash from your bank account just because you wouldn't want the bank to embarrass that person by assuming he/she was a thief? Or would you prefer that the bank verify that the person removing money from your account is actually you?"

---

You raise a good point. I was in my bank the other day, and a customer had written a check to "cash" to get some money. The teller asked to see her ID. The customer went ballistic on the teller, with the usual "I've been banking here for 10 years, blah, blah, blah."

The teller countered with, "I've only been working here one month, and I have not seen you before. I'm asking to see your ID because I do not know you, and don't want anyone to fraudulently access your account."

The customer blustered a bit longer, but appeared to have gotten the point.

[Dartoid]

This is a situation that has bothered me for a long time. Walmart is big on performing these bag checks at the door. I finally decided to do some research and my findings were that SCOTUS has ruled on this and the stores have no right to perform this search. If I remember correctly it falls with-in the area of contracts for good & services. Once the transaction is completed (a contract for the exchange of product you want and you have currency that they want) the goods are your private property.

The blow-back on making an issue is the store can ban you from trespassing on their private property in the future.

[1rudeboy]

Some of the responses on this thread are frightening. And people wonder why we need lawyers. Here's the deal:
Your state probably (you need to check) has what is commonly called a "shopkeeper's privilege" (you should google the term if you're curious) statute, which allows employees of an establishment to ascertain if you are leaving their store without paying for their merchandise, and even allows them to detain you for a reasonable amount of time if they have a reasonable belief that you have not.

[Senator Bedfellow]

Of course you are, and they can detain you until the police arrives.

They can try. They'd also better hope to be really convincing in their argument that simply ignoring the request for a search, absent any other evidence of wrongdoing, is itself reasonable suspicion, or they can deal with the consequences of unlawful detention.

Look, I'm not advocating anyone try this, merely pointing out that merchants do not have carte blanche. If the principle is worth the hassle, go for it. If your time is more valuable to you, give up the receipt. Pretty simple ;)

[television is just wrong]

The problem is that more and more stores are doing this practice. It is a growing problem for those of us who choose not to commit crimes, but they assume that we have committed a crime.

Just wanted some insight into this. Wanted to hear others views. Not about to make a j.A. out of myself at this point, rather, I want to hear what rational human beings have to say about it.

[Terabitten]

It's only illegal if a government law enforcement person does it.

It amazes me how many people don't understand that the Constitution sets forth the limits of what the *government* can and can't do - not the limits on private citizens.

We are endowed with certain unalienable rights by our Creator (as per the Declaration of Independence). The government derives its power from the governed (us), and so, necessarily has fewer rights than we, the governed. The Constitution explains those restrictions on the government. The Fourth Amendment states that the government may not conduct unreasonable searches and seizures, but says nothing of private citizens or corporate entities. In fact, the 10th amendment says that any right *not* mentioned is reserved for the states and the poeple, respectively. Therefore, odd as it sounds, the right to conduct an "unreasonable" search is restricted from the government but reserved for the people.

The store has a reasonable expectation that x percentage of their customers will steal from them. Since they have no way of knowing *which* of their customers comprise that x percent, it's reasonable that they take a simple measure such as checking your bag against your receipt to protect themselves against such loss.

[Enterprise]

I think Dartoid in post 50 gives it pretty succinctly. In my non-lawyer opinion I agree. Unless we are talking special circumstances dealing with public safety like airports, courtrooms, etc., the Constitution gives no one the right to search you or your property or detain you without probable cause. The loss prevention person(s) and security guards are just paid civilian employees of the company, nothing more. Now they can certainly ask and you can certainly refuse. At that point they have a choice. They can let you go or physically restrain you. If you are restrained, and you have not committed a crime, and there is no reasonable cause to believe that you have, you are being physically assaulted. And you have the right to use reasonable force to stop the assault. Hopefully you would have excellent witnesses or have something like this recorded for the pending lawsuit against them. (More than likely they would settle out of court.)

[brazzaville]

Good morning.
"It is a growing problem for those of us who choose not to commit crimes, but they assume that we have committed a crime."

Principles are expensive and growing more so all the time. Like most things of value, they are worth the cost.

Michael Frazier

[tpaine]

It's only illegal if a government law enforcement person does it. The store can do what it wishes with regard to such things.
3 MineralMan

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The store can do what it wishes to a point.
It can certainly request to search your items, but I'm unsure it can do much if you refuse.
AntiGuv


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I just can't understand why people always believe that limits on the government should apply to private entities.
14 craig eddy


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Craig, we are all 'limited' by our Constitutional laws, and we are all bound to support & defend its basic principles.

As Antiguv mentioned, the store cannot do an illegal search. All they can do is call the police, who can do a search as warranted.

You could sue a store for an illegal search, -- and they know it.

[wizardoz]

The Federal Government and the local court won't recognize my right either, but I can't choose to do business elsewhere when it comes to their goods and services.

Exactly. That's why the Bill of Rights applies to government, not private business.

[wizardoz]

I just find this insulting.

Of course it's insulting. But you do not have a Constitutional right to never feel insulted. You do, however, have the right to shop elsewhere.

[1rudeboy]

You are so fortunate to have included the sentence "In my non-lawyer opinion I agree" in your comment. It was a very lawyerly thing to do, I might add. :)