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???

[mysterio]

You are protected from government searches. If the Kmart employee is a government officer, then he or she would have to get a warrant to search you.

At the Kmart level, you could refuse the search. They would then call the police, who would have to get a warrant to search you. So yes, you can refuse the search. This is only the situation if the Constitution was followed.

In reality, the real cops would come and search you without a warrant. If you refused, they would arrest you. They would say you had no "reasonable expectation of privacy" because some judge somewhere invented that term so cops he liked could search for drugs without a warrant. Thanks, WOD.

[Enterprise]

Indeed. I would not want to impersonate a lawyer or any other reptile.

[1rudeboy]

That's ok. Most lawyers feel the same way about their clients.

[NonValueAdded]

Actually, not in Florida so Floridian FReepers, take heed of the following (emphasis added), it seems like you are SOL if the device goes off as you exit the store:

Florida Statutes 812.015 Retail and farm theft; transit fare evasion; mandatory fine; alternative punishment; detention and arrest; exemption from liability for false arrest; resisting arrest; penalties.--

(3)(a) A law enforcement officer, a merchant, a farmer, or a transit agency's employee or agent, who has probable cause [see (3)(b)] to believe that a retail theft, farm theft, a transit fare evasion, or trespass, or unlawful use or attempted use of any antishoplifting or inventory control device countermeasure, has been committed by a person and, in the case of retail or farm theft, that the property can be recovered by taking the offender into custody may, for the purpose of attempting to effect such recovery or for prosecution, take the offender into custody and detain the offender in a reasonable manner for a reasonable length of time. In the case of a farmer, taking into custody shall be effectuated only on property owned or leased by the farmer. In the event the merchant, merchant's employee, farmer, or a transit agency's employee or agent takes the person into custody, a law enforcement officer shall be called to the scene immediately after the person has been taken into custody.

(b) The activation of an antishoplifting or inventory control device as a result of a person exiting an establishment or a protected area within an establishment shall constitute reasonable cause for the detention of the person so exiting by the owner or operator of the establishment or by an agent or employee of the owner or operator, provided sufficient notice has been posted to advise the patrons that such a device is being utilized. Each such detention shall be made only in a reasonable manner and only for a reasonable period of time sufficient for any inquiry into the circumstances surrounding the activation of the device.

(c) The taking into custody and detention by a law enforcement officer, merchant, merchant's employee, farmer, or a transit agency's employee or agent, if done in compliance with all the requirements of this subsection, shall not render such law enforcement officer, merchant, merchant's employee, farmer, or a transit agency's employee or agent, criminally or civilly liable for false arrest, false imprisonment, or unlawful detention.

(4) Any law enforcement officer may arrest, either on or off the premises and without warrant, any person the officer has probable cause to believe unlawfully possesses, or is unlawfully using or attempting to use or has used or attempted to use, any antishoplifting or inventory control device countermeasure or has committed theft in a retail or wholesale establishment or on commercial or private farm lands of a farmer or transit fare evasion or trespass.

(5)(a) A merchant, merchant's employee, farmer, or a transit agency's employee or agent who takes a person into custody, as provided in subsection (3), or who causes an arrest, as provided in subsection (4), of a person for retail theft, farm theft, transit fare evasion, or trespass shall not be criminally or civilly liable for false arrest or false imprisonment when the merchant, merchant's employee, farmer, or a transit agency's employee or agent has probable cause to believe that the person committed retail theft, farm theft, transit fare evasion, or trespass.

[Enterprise]

LOL - I kinda thought lawyers looked at their clients as a living ATM.

[1rudeboy]

I might miss a few, but those would be the bankruptcy, divorce, and personal-injury lawyers.

[NonValueAdded]

And I should have double-highlighted (3)(c) because that is where most of your recourse goes bye-bye. Only if you can PROVE unreasonableness or lengthy delays might you have a case.

[Senator Bedfellow]

That's true in most states, IF the alarm goes off when you try to exit. Of course, if the alarm goes off, they suddenly have a pretty solid basis for thinking that you might be stealing something, and consequently that belief becomes a lot more reasonable on their part. In that case, they gotcha, so you're better off playing along if you really didn't do anything wrong.

But in this case, I think the original posted was concerned about the reasonableness of demands to search and possibly hold someone even when the alarms don't go off - i.e., when they don't have any particular reason to suspect that you've actually stolen something.

[1rudeboy]

Forgot one--those lawyers willing to represent the FReepers here who are foolish enough to file a lawsuit concerning this issue in federal court.

[Uri’el-2012]

Most of the loss goes out the employee exit not the front door.

[NonValueAdded]

It looks like the deck is stacked against the shopper. You're definitely screwed if the exit device goes off and even if it doesn't, the LP guy can make up a reasonable suspicion excuse without even trying hard. Subsection 6 sounds even worse since it talks about what can happen to you if you resist! The only escape clause is the "while committing or after committing theft of property" clause which, I would argue vehemently, renders the penalties of (6) moot if you are not shoplifting. Holy police state, Batman, it is time to shop online!

I guess my strategy will now be to stop at the direction of the LP guy but refuse to leave the exitway and demand that the police be called right then and there. No way would I give them a chance to "make the case" by planting something on me. Parents should be real careful that their child hadn't picked up any merchandise unbeknownst to them.

PS I am not a lawyer not did I sleep at a Holiday Inn last night.

[tpaine]

--- the Bill of Rights applies to government, not private business.

Wiz, we are all 'limited' by our Constitutional laws, and we are all bound to support & defend its basic principles, including the bill of rights.

-- The Oath of Citizenship --

I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty of whom or which I have heretofore been a subject or citizen;
that I will support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic;
that I will bear true faith and allegiance to the same; that I will bear arms on behalf of the United States when required by law;
that I will perform noncombatant service in the Armed Forces of the United States when required by the law;
that I will perform work of national importance under civilian direction when required by the law;
and that I take this obligation freely without any mental reservation or purpose of evasion; so help me God. In acknowledgment whereof I have hereunto affixed my signature.

[Senator Bedfellow]

Let's not underestimate the possibility that one of the minimum-wage cart jockeys will simply make something up as a reason to hassle you. Anyway, if you feel like being difficult, it's your prerogative ;)

[Toddsterpatriot]

-- The Oath of Citizenship --

Cute. So I guess we need to defend the Constitution where it says gov agents can't do unreasonable searches. Still doesn't apply to the merchant.

[tpaine]

We are all 'limited' by our Constitutional laws, and we are all bound to support & defend its basic principles, including the bill of rights.

-- The Oath of Citizenship --

I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty of whom or which I have heretofore been a subject or citizen;
that I will support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic;
that I will bear true faith and allegiance to the same;
that I will bear arms on behalf of the United States when required by law;
that I will perform noncombatant service in the Armed Forces of the United States when required by the law;
that I will perform work of national importance under civilian direction when required by the law;
and that I take this obligation freely without any mental reservation or purpose of evasion; so help me God. In acknowledgment whereof I have hereunto affixed my signature.

Cute. So I guess we need to defend the Constitution where it says gov agents can't do unreasonable searches.

Those of us that value our oath do so. -- Others that think its 'cute' don't.

Still doesn't apply to the merchant.

How so? Since when are merchants exempt from our rule of law?

[Toddsterpatriot]

We are all 'limited' by our Constitutional laws, and we are all bound to support & defend its basic principles, including the bill of rights.

No, the government's power is limited by the Constitution. Where in the Bill of Rights did it say WalMart can't search your bag?

-- The Oath of Citizenship --

Like I said, cute. I'm a citizen and I never took the oath. Does that mean I don't have to defend the Constitution?

Those of us that value our oath do so. -- Others that think its 'cute' don't.

Welcome to America.

How so? Since when are merchants exempt from our rule of law?

You'll have to show me the law that says a merchant can't search your bag.

[Fatalist]

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.

Correct. It is not necessary to limit the authority of a private citizen over me because a private citizen has no authority over me to begin with.

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.

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.

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.

If a store wishes to post a notice stating that my bag may be searched upon leaving the store, then I implicitly give my consent to be searched by shopping there. They are under no obligation to do business with me if I do not wish to be searched. If, however, they do not post such a notice (or inform me in some manner before I make my purchase), then they are dependent on my giving explicit consent when I leave the store to be searched. Failing to secure my consent, they have no right to search me.

That being said, I don't see the big deal in letting them look through my bag. I don't think I'd worry about it, so long as they asked to.

[tpaine]

We are all 'limited' by our Constitutional laws, and we are all bound to support & defend its basic principles, including the bill of rights.

-- the government's power is limited by the Constitution.

Of course it is. But we all agree to abide by our Constitution as our supreme law.

Where in the Bill of Rights did it say WalMart can't search your bag?

Walmart searches are not enunmerated, but unreasonable searches are, -- in the 4th, as you well know.

-- The Oath of Citizenship --

Like I said, cute. I'm a citizen and I never took the oath.

Makes no difference. Oath or not, you are bound to protect & defend our Constitution as the Law of the Land.

Does that mean I don't have to defend the Constitution?

Those of us that value our oath do so. -- Others that think its 'cute' don't.

Welcome to America.

My, how proud it must make you to claim our constitutional principles do not apply to merchants.
-- Since when are merchants exempt from our rule of law?

You'll have to show me the law that says a merchant can't search your bag.

Round you go. I show you the 4th Amendment. -- You deny "unreasonable searches" applies.

This is typical, for instance, of those who deny that the 2nd does not apply to merchants, -- that they can ban guns from employees & customers cars. Ring a bell?

[tpaine]

Well written facts on constitutional law..

Thanks.

[Toddsterpatriot]

Walmart searches are not enunmerated, but unreasonable searches are, -- in the 4th, as you well know.

WalMart cannot go to your house and search, if you are in WalMart's house they can search.

Oath or not, you are bound to protect & defend our Constitution as the Law of the Land.

As soon as the Anti-WalMart search Amendment passes, I'll defend it.

My, how proud it must make you to claim our constitutional principles do not apply to merchants.

Go to a movie theater and yell fire, see how your 1st Amendment rights apply. Or an airport and yell bomb.

-- Since when are merchants exempt from our rule of law?

Again, show me the law that says WalMarts can't search you on WalMart property.

This is typical, for instance, of those who deny that the 2nd does not apply to merchants, -- that they can ban guns from employees & customers cars. Ring a bell?

Bring cases on both to the Supreme Court and see which survives.