“Shopkeeper’s Privilege” and The Right to Detain in California

Under California law, the principle of shopkeeper’s privilege permits shopkeepers (or store owners or merchants) to detain a customer if they have probable cause that the person is guilty of shoplifting (per Penal Code 459.5).

Under the law, though, it is required that a store owner’s detention:

• be for a reasonable time, and
• used solely to investigate the suspected shoplifting offense.

The shopkeeper’s privilege is authorized under California Penal Code 490.5 PC. This statute states:

“(f) (1) A merchant may detain a person for a reasonable time for the purpose of conducting an investigation in a reasonable manner 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.”

Examples of when a merchant can legally detain a customer include:

• Mike runs a sports shop and stops a customer after watching him put a mouth guard in his backpack.
• Nia manages a clothing store and brings a shopper in a back room after he tried to leave the store without paying for a sweater.
• Jose works at a convenience store and restrains a person that put a pack of gum in his pocket.

Please note that a shopkeeper can use force to detain a customer, provided that it is:

• reasonable, and
• non-deadly.

During a lawful detention, a merchant can:

• examine any items a person tried to take, and
• conduct a search.

The shopkeeper’s privilege is a valid legal defense to the crime of false imprisonment, charged under Penal Code 236. False imprisonment is a wobbler offense under California law. This means it can be charged as either a misdemeanor or a felony.

Please note that the shopkeeper’s privilege is not the same as a citizen’s arrest (as authorized by Penal Code 837). The latter is an arrest made by a citizen who has no official arrest authority because he is not a law enforcement personnel or a governmental agent.

Our California criminal defense attorneys will highlight the following in this article:

• 1. What is the shopkeeper’s privilege?
• 2. Can a merchant use force in detaining a customer?
• 3. What may a store owner do in a detention?
• 4. What is shoplifting, per Penal Code 459.5?
• 5. Is shopkeeper’s privilege a defense to false imprisonment?
• 6. Are there other defenses to false imprisonment?
• 7. Is the shopkeeper’s privilege the same as a citizen’s arrest?
• Additional resources

1. What is the shopkeeper’s privilege?

Under California law, the “shopkeeper’s privilege law” says that shopkeepers, store owners or merchants may detain a customer if they have probable cause / reasonable grounds to believe that the shopper is guilty of shoplifting (per Penal Code 459.5).¹

Note though that this detention:

• must be for a reasonable amount of time, and
• is solely to investigate the possible shoplifting crime.²

Whether or not a detainment is “reasonable” or for a reasonable period of time is a determination a judge makes based on all of the facts of a given case.³

Under Penal Code 490.5 PC, a shop owner or merchant is:

• an owner or operator, or
• the agent, employee, or officer of an owner or operator

of any store used for the purchase or sale of any personal property capable of manual delivery.⁴

2. Can a merchant use force in detaining a customer?

An owner has the legal right to use force in detaining an alleged shoplifter. The shopkeeper’s privilege allows a store owner to use a reasonable amount of nondeadly force on the detainee that is necessary to:

1. protect himself, and
2. prevent the escape from store property of the particular person being detained.⁵

Whether or not the amount of force used is “reasonable” is a determination a judge makes based on all of the facts of a given case.⁶

3. What may a store owner do in a detention?

A store owner can do two things in a shopkeeper detention. These are:

1. examine the items he suspects are stolen, and/or
2. conduct a search.

Examine items

During a detention, a merchant may examine any items that:

1. he has probable cause to believe were unlawfully taken, and
2. are in plain view.⁷

An owner is authorized to examine the items to determine who legally owns them.⁸

Conduct a search

Once detained, a merchant can ask a suspected shoplifter to hand over the item(s) he believes the shopper tried to steal.⁹

If the shopper refuses, the owner can conduct a limited and reasonable search in order to recover the items in question.¹⁰ But, the merchant cannot search the clothing of the person being detained.¹¹ He can only search that person’s:

• packages,
• shopping bags,
• handbags, or
• any other property in his immediate possession.¹²

Merchants do not need a search warrant since they are not peace officers. They are private citizens. But if merchants find stolen items, they can then call a law enforcement agency to come to the store to issue a citation or conduct an arrest.

4. What is shoplifting, per Penal Code 459.5?

In Penal Code 495.5, California law defines “shoplifting” as entering an open business, with the intent to steal merchandise worth $950 or less.¹³

In other words, shoplifting is entering an open business intending to commit the crime of petty theft.

The crime of shoplifting was created by the voter initiative Proposition 47 in 2014. Before the passage of Prop 47, the behavior that is now defined as shoplifting could have been charged instead as Penal Code 459 PC burglary.

For most defendants, shoplifting is charged as a misdemeanor. The potential penalties a California court can impose are:

• up to six months in county jail, and/or
• a fine of up to $1,000.¹⁴

5. Is shopkeeper’s privilege a defense to false imprisonment?

The shopkeeper’s privilege is a valid legal defense to the crime of false imprisonment.¹⁵

Penal Code 236 PC is the California statute that defines the crime of false imprisonment. Under this code section, false imprisonment is “the unlawful violation of the personal liberty of another.”¹⁶

The commission of the crime means that one person restrains, detains, or confines another person without his/her consent. The crime can be committed with or without force or violence.

California Penal Code 237 is the State’s statute that sets forth the penalties for false imprisonment. Under this section, false imprisonment is a type of wobbler offense, meaning that it can be punished as either a California misdemeanor or a felony. You can find out more information on the differences between a felony and a misdemeanor here.

If a misdemeanor, false imprisonment is punishable by:

• a maximum fine of $1,000, and/or
• a maximum jail term of one year.¹⁷

If a felony, a judge can sentence a guilty party to a county jail term of:

• 16 months,
• two years, or
• three years.¹⁸

6. Are there other defenses to false imprisonment?

There are three other common defenses to accusations of false imprisonment. These are:

1. an accused had the legal authority to restrain a person (for example, the defendant was acting in his capacity as a police officer), so therefore the accused committed no criminal activity,
2. the alleged “victim” consented to the restraint or the detention, and
3. the defendant acted out of self-defense. (Note that a deadly weapon should not be used in self-defense unless it is in reasonable and proportional force to the aggressor.)

Another defense is that the police committed misconduct, such as coercing a confession of tampering with evidence. In these cases, the defense can ask the judge to disregard any evidence found through illegal means.

In any case, the district attorney has the burden to prove guilt beyond a reasonable doubt. If prosecutors lack sufficient evidence, then the criminal case should be dropped.

7. Is the shopkeeper’s privilege the same as a citizen’s arrest?

The privilege is not the same as a California citizen’s arrest.

A citizen’s arrest is an arrest made by a citizen who has no official arrest authority because he is not a law enforcement officer, police department, or a governmental agent.¹⁹

Penal Code 837 PC is the California statute that authorizes a citizen’s arrest in certain circumstances. These include when a perpetrator:

• commits a misdemeanor in a citizen’s presence, and/or
• commits a felony and a citizen has reasonable cause for believing the perpetrator committed it.²⁰

Additional resources

For more information, refer to the following:

1. National Association for Shoplifting Prevention – Provides information on the causes of shoplifting, statistics, and prevention.
2. California Courts – Proposition 47 – Details on Prop 47 reducing some theft crimes from felonies to misdemeanors.
3. Loss Prevention Magazine – Information on retail loss prevention and shoplifting deterrence.
4. What the Panic Over Shoplifting Reveals About American Crime Policy – Article about how legislators are tackling shoplifting problems, by the Marshall Project
5. Cleptomaniacs And Shoplifters Anonymous, LLC (CASA) – Weekly self-help group.

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