Several listeners, including Richard from Texas, Matt, and Robert asked me to specifically address the underlying legality of a security guard’s search.
First, a disclaimer: Although I am an attorney, the legal information in this podcast is not intended to be a substitute for seeking personalized legal advice from an attorney licensed to practice in your jurisdiction. Further, I do not intend to create an attorney-client relationship with any listener.
Today’s episode is an expansion on last week’s episode regarding searches by security guards at retail stores. Several listeners, including Richard from Texas, Matt, and Robert asked me to specifically address the underlying legality of a security guard’s search. Matt wrote:
Do you have the right to simply pass by without inspection? Would doing so alone be grounds for you to be detained for shoplifting, and what about the electronic alarm, are you required to obey it? All this of course concerning people who are not shoplifting; obviously I wouldn't expect you to give advice for would-be shoplifters. But seriously, these checks and alarms are pretty annoying for us law abiding citizens simply to be told to smile and politely “take it” over something that may not be legal/required.
The short answer is that merchants do, in fact, have the right to search and detain you if they have sufficient reasons to believe that you have shoplifted. However, with regard to Matt’s question: Yes, if you are just leaving the store after a routine shopping trip, you generally have the right to exit a store without inspection. If a security guard at Best Buy asks to see your receipt, you have two options. You may voluntarily agree to be searched. Alternatively, you may say no and simply walk by. The guard must have some reason to believe you stole something before he can search you and refusing to allow the guard to check your bag is not a good enough reason on its own. There must be something more.
To accommodate the competing policies of controlling theft and freedom from harassing searches, most states have enacted “shoplifting statutes.” These statutes vary from state to state, but generally operate to allow merchants to search a customer where they have a reasonable ground to do so. Once the merchant has reasonable grounds to search, the merchant may conduct a search with reasonable force, and for a reasonable amount of time to determine whether the suspected shoplifter has indeed stolen something or not.
You might find subjecting to the search annoying, but your refusal to comply with a security guard can have much more annoying consequences. The quick and dirty tip is to politely and calmly cooperate with the guard, and if you feel that a store’s search policy is too invasive, take your business elsewhere.