Laws of Arrest - too much for some people to understand ?

[Curtis Baillie]

And then you followed up with this:

"Even in Canada, as in the U.S., a retailer has the right to stop and detain a "shoplifting suspect' to ask questions to acertain if they did steal. This is not an arrest. They may even be taken to an office or private space to determine this. If it is determined that they did not shoplift, they are immediately released. The arrest comes when they are told so by an agent of the retailer or police."

Your words were that "the arrest comes when they are told so by an agent of the retailer or police."

I did not twist anything. You made, what I believe to be, an erroneous statement. I provided an example that demostrated the error in the statement. I just asked for clarification from you, giving you a chance to correct your statement. Instead, you choose to fight and insult me.

I will give you another opportunity to correct your statement. At what point does a detention become an arrest?

When the detention is deemed to be outside the merchant statutes, this is decided by the courts -or- when the shoplift agent or the police tell the suspect they are under arrest.

You can continue this discussion all you want - I think my statement was quite clear.

[Lynch Mob]

When the detention is deemed to be outside the merchant statutes, this is decided by the courts -or- when the shoplift agent or the police tell the suspect they are under arrest.

You can continue this discussion all you want - I think my statement was quite clear.

Why be like that Curtis? I asked a very reasonable question, and your statement originally was not clear as you have now added more to it for clarification.

So, you have added in a detention outside of merchant statute laws. That would imply that if you made a dentition within the guidelines of merchant statute laws, and you never told the person they were under arrest, then legally an arrest has not been made. Am I understanding you correctly?

Ok, so what about this scenario?

A customer comes up to a store manager and tells him that there is a customer who is shoplifting. The manager goes over and sees a customer pull price tags off a shirt and put the shirt in a bag from a different store. The customer selects another item and starts pulling off the tags. The manager runs over to a cash wrap nearby and calls LP to tell them what is going on. The customer happens to notice the manager and gets spooked. The customer dumps all the merchandise under a rack and leaves the store.

The manager and LP screw up and still stop the customer. The LP agent, outside the store, grabs the arm of the customer and tells him he needs for him to come back in the store so they can talk about the merchandise. The customer pulls away and tries to run. The LP agent jumps on him, handcuffs him, and brings him back in the store. In the office they find that the merchandise is gone. The customer admits that he dumped the merchandise under a rack. The manager goes out and finds the merchandise. They let the customer go without calling the police. The customer was in the office for only 5-10 minutes.

Clearly, this is a bad stop based upon most retailers standards of a bad stop. But, I think this would still fall within the laws of most merchant protection statutes, as there was reasonable cause to believe merchandise was being stolen. However, nobody ever told the customer he was under arrest.

Did the actions of the LP agent constitute a legal arrest? And, if so, at what point was the suspect legally placed under arrest?

[HotelSecurity]

Curtis
Peace Officers can detain for investigation purposes, not civilians.
As someone else wrote, in Canada if the person asks "am I free to leave?" And you say, "please come with me", they have been arrested. We can ASK the suspect tp come with us but if they feel they had no choice & could not leave, you have arrested them. If you then do not turn them over to a peace officers you have broken the law.

[bigdog]

Curtis
Peace Officers can detain for investigation purposes, not civilians.
As someone else wrote, in Canada if the person asks "am I free to leave?" And you say, "please come with me", they have been arrested. We can ASK the suspect tp come with us but if they feel they had no choice & could not leave, you have arrested them. If you then do not turn them over to a peace officers you have broken the law.

Here is the merchant detention statute and a few other detention stautes from FL law.

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.--


(1) As used in this section:
(a) "Merchandise" means any personal property, capable of manual delivery, displayed, held, or offered for retail sale by a merchant.
(b) "Merchant" means an owner or operator, or the agent, consignee, employee, lessee, or officer of an owner or operator, of any premises or apparatus used for retail purchase or sale of any merchandise.
(c) "Value of merchandise" means the sale price of the merchandise at the time it was stolen or otherwise removed, depriving the owner of her or his lawful right to ownership and sale of said item.
(d) "Retail theft" means the taking possession of or carrying away of merchandise, property, money, or negotiable documents; altering or removing a label, universal product code, or price tag; transferring merchandise from one container to another; or removing a shopping cart, with intent to deprive the merchant of possession, use, benefit, or full retail value.



(3)(a) A law enforcement officer, a merchant, a farmer, or a transit agency's employee or agent, who has probable cause 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.
(b) If a merchant or merchant's employee takes a person into custody as provided in this section, or acts as a witness with respect to any person taken into custody as provided in this section, the merchant or merchant's employee may provide his or her business address rather than home address to any investigating law enforcement officer.
(6) An individual who, while committing or after committing theft of property, transit fare evasion, or trespass, resists the reasonable effort of a law enforcement officer, merchant, merchant's employee, farmer, or a transit agency's employee or agent to recover the property or cause the individual to pay the proper transit fare or vacate the transit facility which the law enforcement officer, merchant, merchant's employee, farmer, or a transit agency's employee or agent had probable cause to believe the individual had concealed or removed from its place of display or elsewhere or perpetrated a transit fare evasion or trespass commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083, unless the individual did not know, or did not have reason to know, that the person seeking to recover the property was a law enforcement officer, merchant, merchant's employee, farmer, or a transit agency's employee or agent. For purposes of this section the charge of theft and the charge of resisting may be tried concurrently.

509.143 Disorderly conduct on the premises of an establishment; detention; arrest; immunity from liability.--

(1) An operator may take a person into custody and detain that person in a reasonable manner and for a reasonable time if the operator has probable cause to believe that the person was engaging in disorderly conduct in violation of s. 877.03 on the premises of the licensed establishment and that such conduct was creating a threat to the life or safety of the person or others. The operator shall call a law enforcement officer to the scene immediately after detaining a person under this subsection.
(2) A law enforcement officer may arrest, either on or off the premises of the licensed establishment and without a warrant, any person the officer has probable cause to believe violated s. 877.03 on the premises of a licensed establishment and, in the course of such violation, created a threat to the life or safety of the person or others.
(3) An operator or a law enforcement officer who detains a person under subsection (1) or makes an arrest under subsection (2) is not civilly or criminally liable for false arrest, false imprisonment, or unlawful detention on the basis of any action taken in compliance with subsection (1) or subsection (2).
(4) A person who resists the reasonable efforts of an operator or a law enforcement officer to detain or arrest that person in accordance with this section is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083, unless the person did not know or did not have reason to know that the person seeking to make such detention or arrest was the operator of the establishment or a law enforcement officer.

[Lynch Mob]

I guess some folks just believe they can make any erroneous statement and everyone should just accept it as fact?

Here is how I learned when an arrest is made. There is a clear "moment" when a detention becomes an arrest. It is at the point that the individual believes they are not free to leave. From that point, from a technical legal standpoint, an arrest has been made. They do not need to be told they are under arrest, and physical restraint is not necessary either.

Now, in the case of a private person arrest that line can be a little more unclear than when a police officer makes an arrest, but that is where the line will ultimately be drawn. This is how courts have ruled for years. A person does not need to be advised they are under arrest to officially be arrested. If you put handcuffs on a person you can guarantee you just made an arrest.

So, I can see how someone could say they arrest everyone but may not press charges against them. This is not just a "misconception" about what an arrest is. It is following the most literal term of arrest.

[NRM_Oz]

Lynch I would follow the same teachings .......... aka an "implied arrest" - hence why EVERY arrest I have made, I am going to want to get a confession or admission of guilt immediately off the SL or offender. As such I have never had any bad stops in my career. Have I been lucky over all these years ? No I was mentored by some of the best in the industry who had been there and done that over their careers. Hence why if I am the 1 making the arrest of the duty manager present, I will ensure I get an admission of guilt from the SL which will be noted in the Incident report.

I don't know the laws of other countries as well as my own and I do know of the Shopkeeper laws in the USA but unless you process the SL with no police attendance for: minor $$$, 1st offence, minor 1st time, or a decision to issue a caution only with volutary admission of guilt, then you have to inform the police. I will argue to the cows come home that if you remove a person from the general area of a store and move them to a private area such as an office, there is an implied arrest. A smart person would ask "am I now under arrest ?".

[Maelstrom]

NRM, are NSW security operatives allowed to question people they've detained? south of the border that's taboo

[Nauticus]

NRM, are NSW security operatives allowed to question people they've detained? south of the border that's taboo

Security officials are allowed to question suspects and take statements, as long as they read the individual sections 10(a) and (b) and the official warning of the Criminal Code of Canada upon arrest. Any confessions or admissions prior to this being read aren't allowed in court. That is, if the individual elects not to contact a lawyer.

[NRM_Oz]

NRM, are NSW security operatives allowed to question people they've detained? south of the border that's taboo

You may ask them questions in relation to the incident but they DO NOT have reply but they we had this argument on another site and every company I have worked for has made it a standard SOP that you must caution them and this has been going on zillions of years. I guess it has more to do with the Liabilities and the law states that all records of conversations must be recorded in 1 form or another.

I have had people refuse to show me valid ID and I have advised them police of this as they are under NO obligation to do so. 1 bloke gave me 2 different names (Aussie and Muslim) which seems ok - then inside this wallet the Police found another 5 full sets of ID in 5 different aussie names. All this for a $240 bust on aftershave.

[NRM_Oz]

Nauticus it is the same here under the Crimes Act - but most LP staff unless they get a confession first up (not always possible), screw up the arrests because when the police attend they fail to follow SOP's and the protocols. I have audited hundreds of reports of bad LP moves which have come unstuck in court because the LP staff believed they were cops and had an offender under duress make an admission and were then dumb enough to admit this openly in a statement to the police.

[Mr. Security]

My Thought

Evidently, based on the difference in posts defining arrest, etc., arrest laws are clearly not easy to understand. While I am not an attorney, I tend to side w/ Curtis on understanding this issue for the USA. Some of the confusion with detention = arrest may stem from the difference in criminal v. civil law. What I mean is this: While you may or may not be criminally charged for an improper detention, the civil end of it is a whole different ballgame and lawsuits have been won because a person believed they were not free to leave when detained by security. (Not LP)

As a result, most WBS companies strongly discourage detainment unless absolutely necessary. "Any doubts - DON'T DO IT!" is the safe and wise course of action unless you have been specifically trained in understanding the finer points of law regarding detainment and arrest in your jurisdiction.

[Lynch Mob]

Evidently, based on the difference in posts defining arrest, etc., arrest laws are clearly not easy to understand. While I am not an attorney, I tend to side w/ Curtis on understanding this issue for the USA. Some of the confusion with detention = arrest may stem from the difference in criminal v. civil law. What I mean is this: While you may or may not be criminally charged for an improper detention, the civil end of it is a whole different ballgame and lawsuits have been won because a person believed they were not free to leave when detained by security. (Not LP)

As a result, most WBS companies strongly discourage detainment unless absolutely necessary. "Any doubts - DON'T DO IT!" is the safe and wise course of action unless you have been specifically trained in understanding the finer points of law regarding detainment and arrest in your jurisdiction.

I agree that arrest laws are not easy to understand. However, there becomes a point where a detention becomes an arrest. The law must examine this and define what this is. In your opinion, at what point does a detention become an arrest?

One thing I completely disagree on is the difference between civil and criminal law, as you stated. A legal arrest is a legal arrest. You cannot be successfully sued for false arrest if you did not arrest someone. If you never arrested someone, that is the defense. You simply say I did not engage in a false arrest because I never arrested the person. If you cannot use that as a defense, then you did arrest someone. From a civil standpoint, an arrest is still an arrest. The definition and criteria are no different.

In the examples I cited, I don't think you could ever get away with claiming you did not make an arrest. In both examples I cited, I am absolutely certain that if your defense was you did not make an arrest, so you cannot be guilty of making a false arrest, you would lose that case. I have no doubt about that.

So, it goes back to the question I asked Curt that he doesn't want to answer. At what point does a detention become an arrest?

[Mr. Security]

Lynch Mob

I understand what you are saying, but I still believe there is a significant difference in criminal v. civil law. Criminal law requires a conviction when a crime can be proven beyond a doubt whereas a civil law verdict in favor of the plaintiff is based on a preponderance of the evidence - a standard far below the one required for a guilty verdict in a criminal case.

In CT, USA, where I reside, I am not able to define when a detention becomes an arrest according to state law. (However, detention here for shoplifting is practiced by LPO's, but LE is dispatched to decide whether an arrest is justified, at which point an arrest and case number are issued.)

Since I am not LP and work unarmed, I have no reason to detain because I am not going to make a citizen's arrest unless I am able to safely stop a class A/B felony - which is highly unlikely.

What I can do though, is ask the suspect if they would be willing to help me resolve some questions regarding a situation. (Sounds silly, but it's just a way to stall until the police arrive) This protects me in the event I am mistaken, since their stay is voluntary - they agreed to it.

[NRM_Oz]

Mr Security - that is how I was trained 20 years ago - ASK NICELY and you would be surprised what happens when you are nice to an SL / offender. I have had 1 bloke pull a commando knife on another person and knicked him with the blade tip in an argument. He agreed to come with me into the office and handed me the knife which was placed in an enveloped and sealed. I asked him to wait as the police would be hear soon to hear both sides of the story and he was willing to hand over his ID and other information without fuss. By asking you are not demanding or forcing the person under duress to comply with your demands.

[bigdog]

Lynchmob, here is a legal article discussing what detaining is VS arresting.

http://www.csudh.edu/dearhabermas/detent.htm