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Merchant's Privilege and the Right to Detain

Posted by Dmitry Gorin | Jul 04, 2023

Retailers and shop owners generally understand they have the right to take reasonable measures to protect their interests.

To that end, most states, including California, have adopted the common law concept of "merchant's privilege"— the right of store owners and employees to detain individuals they reasonably suspect of committing theft on their premises.

Merchant's Privilege and the Right to Detain in California
Store owners and merchants can detain people if there is probable cause they are shoplifting.

This concept is grounded in the recognition that retail businesses must be able to protect their property from theft. Law enforcement may only sometimes be available to respond to such incidents.

Penal Code 490.5 says, “(f) (1) A merchant may detain a person for a reasonable time for the purpose of investigating reasonably whenever the merchant has probable cause to believe the person to be detained is attempting to unlawfully take or has unlawfully taken merchandise from the merchant's premises.”

Simply put, under California law, the “shopkeeper's privilege” allows store owners and merchants to detain a customer if there is probable cause they committed Penal Code 459.5 shoplifting.

However, the store owner's detention can only be for a reasonable time and used solely for the purpose of investigating a suspected shoplifting offense.

That being said, the merchant's authority is limited in this situation, so a merchant should be cautious when exerting this privilege to ensure they stay within what is reasonable. The merchant's privilege differs from a citizen arrest defined under Penal Code 837 PC.  Let's review this topic further below.

What Does the Law Say?

Merchant's privilege ("shopkeeper's privilege") refers to the legal authority granted to store owners and their employees to detain individuals they reasonably suspect of shoplifting.

What Does the Law Say About a Merchant's Privilege?
Retail business owners have the right to protect their property from theft, but there are limits.

This concept is grounded in the recognition that retail businesses must be able to protect their property from theft and that law enforcement may only sometimes be immediately available to respond to such incidents.

Consequently, the law allows merchants to protect their interests within certain limits to prevent losses due to shoplifting.

Under PC 490.5 PC, a shop owner or merchant is an owner or operator, agent, employee, or officer of an owner of any store used for the purchase or sale of any personal property capable of delivery.

In California, merchant's privilege is codified under California Penal Code 490.5(f)(1) PC, which states that a merchant may detain a person for a reasonable time to investigate if they have probable cause to believe the person is attempting to take unlawfully or has unlawfully taken merchandise.

The detention must be conducted reasonably and only for a reasonable time to permit the investigation. Whether or not a detainment is a reasonable period is determined by a judge based on all of the facts of the case.

What Are the Conditions for Enforcing Merchants' Privilege?

Merchant's privilege is not an unlimited right. Let's examine the rules and guidelines merchants must follow to enforce this privilege.

  • The merchant must have probable cause. In other words, based on specific facts and circumstances, the merchant must reasonably believe that the individual has engaged in shoplifting. This standard helps strike a balance between the interests of the merchant in preventing theft and the rights of the individual to be free from unreasonable searches and seizures.
  • Detention must be for a reasonable amount of time. The merchant must limit the detention to a reasonable period necessary to investigate the shoplifting allegations or await the arrival of law enforcement. If the matter is disputed in court, the amount of time deemed "reasonable" will depend on the facts of the case.
  • The merchant must use only reasonable, non-deadly force as necessary. California law permits merchants to use reasonable force to detain suspected shoplifters if required to protect themselves or prevent the suspect from fleeing. The force must be proportional to the risk the suspect presents and the need to protect the property at stake. This rule recognizes that, while merchants have a legitimate interest in preventing theft, they must not resort to vigilante justice or endanger the safety of others in the process.
  • Reasonable searches. While the suspect is detained, the merchant can conduct a limited, reasonable search of the suspect's belongings to recover any stolen items. The search is limited to asking the suspect to hand over the stolen goods or physically searching bags, backpacks, and other effects—but not clothing. If the suspect refuses, the owner can conduct a limited and reasonable search to recover the items in question but cannot search the clothing of the person being detained.

Further, merchants do not need a search warrant since they are not police officers but private citizens. If merchants find stolen items, they can then call the police to come to their store to issue a citation or conduct an arrest.

What is the Shoplifting Law?

California Penal Code 495.5 PC shoplifting is generally described as entering an open business intending to steal merchandise worth $950 or less.

Specifically, PC 459.5 says, “(a) shoplifting is defined as entering a commercial establishment with intent to commit larceny while that establishment is open during regular business hours, where the value of the property that is taken or intended to be taken does not exceed $950.”

Simply put, shoplifting involves entering an open business intending to commit the crime of petty theft. PC 459.5 shoplifting law was enacted by a 2014 voter initiative, Proposition 47.  

Most shoplifting cases are charged as a misdemeanor, and the penalties for a conviction include up to six months in county jail and a fine of up to $1,000.

What Are the Risks of Exceeding Their Authority?

When exerting their rights under the law, merchants should be cautious to stay within the boundaries presented to them. Doing so presents a risk of civil actions and even criminal charges. Some of the possible issues that may arise are discussed below.

Shopkeeper’s Privilege and The Right to Detain in California
Contact our criminal attorneys for help.

False imprisonment under Penal Code 236 PC is detaining a customer without probable cause or for a limited duration may lead to false imprisonment charges. However, when appropriately executed, the merchant's privilege becomes a viable legal defense against false imprisonment charges.

Assault and battery under Penal Codes 240 and 242 PC is using excessive or unnecessary force during the detention process may result in criminal charges of assault and battery and potential civil liability for any injuries caused.

Invasion of privacy includes unlawful searches, such as searching a customer's belongings without consent or reasonable suspicion, which may lead to invasion of privacy claims and associated civil damages.

You can contact us for a case review by phone or through the contact form. Eisner Gorin LLP is based in Los Angeles, CA.

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About the Author

Dmitry Gorin

Dmitry Gorin is a licensed attorney, who has been involved in criminal trial work and pretrial litigation since 1994. Before becoming partner in Eisner Gorin LLP, Mr. Gorin was a Senior Deputy District Attorney in Los Angeles Courts for more than ten years. As a criminal tri...

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