quote:
Originally posted by kanling:
Why isn't it legal to search someone? It isn't the government, the searcher is a private entity on their own private property. As a customer, you are a guest on their property.
I'm not arguing, I would just like to know. (I'm looking forward to possibly mixing things up a little next time I'm in Sam's Club )
The short answer is that it is not legal because the law does not allow it.
The long answer is that, generally speaking, a private party does not have the right to stop and detain you unless they have probable cause to believe that you have committed a crime. In many and maybe most states, if the private party is (or works for) a storeowner, the private party can also search you if he has probable cause to believe that you've stolen something. We can't have people going around stopping and searching other people for little or no reason. Its an invasion of your privacy, your personal space, and your person. If someone does this to you its similar to the criminal offense of kidnapping and is called the civil law tort of false imprisonment, for which you can sue the person and obtain money damages. State laws vary on the subject of arrests and searches by private persons, but generally, nationally speaking, the above rules apply. For example, here's the Montana law on the subject:
46-6-502. Arrest by private person. (1) A private person may arrest another when there is probable cause to believe that the person is committing or has committed an offense and the existing circumstances require the person's immediate arrest.
(2) A private person making an arrest shall immediately notify the nearest available law enforcement agency or peace officer and give custody of the person arrested to the officer or agency.
History: En. 95-611 by Sec. 1, Ch. 196, L. 1967; amd. Sec. 3, Ch. 274, L. 1974; R.C.M. 1947, 95-611(part); amd. Sec. 40, Ch. 800, L. 1991.
46-6-506. Temporary detention by merchant -- liability. (1) A merchant, as defined in 30-11-301, who has reason to believe that a person has committed or is in the process of committing the offense of theft may stop and temporarily detain that person. The merchant:
(a) shall promptly inform the person that the stop is for investigation of shoplifting and that upon completion of the investigation, the person will be released or turned over to the custody of a peace officer;
(b) may demand the person's name and present or last address and question the person in a reasonable manner for the purpose of ascertaining whether or not the person is guilty of shoplifting;
(c) may take into possession any merchandise for which the purchase price has not been paid and that is in the possession of the person or has been concealed from full view; and
(d) may detain the person or request the person to remain on the premises until a peace officer arrives.
(2) A stop, detention, questioning, or recovery of merchandise under this section must be done in a reasonable manner and time. Unless evidence of concealment is obvious and apparent to the merchant, this section does not authorize a search of the detained person other than a search of the person's coat or other outer garments and any package, bag, or other container. After the purpose of a stop has been accomplished or 30 minutes have elapsed, whichever occurs first, the merchant shall allow the person to go unless the person is arrested and turned over to the custody of a peace officer.
(3) A merchant stopping, detaining, or arresting a person on the belief that the person is shoplifting is not liable for damages to the person unless the merchant acts in a manner contrary to this section.
(4) As used in this section, the following definitions apply:
(a) "Concealment" means any act or deception done purposely or knowingly upon or outside the premises of a wholesale or retail store or other mercantile establishment, with the intent to deprive the merchant of all or part of the value of the merchandise. The following acts or deceptive conduct is prima facie evidence of concealment:
(i) concealing merchandise upon the person or in a container or otherwise removing merchandise from full view while upon the premises;
(ii) removing, changing, or altering a price tag;
(iii) transferring or moving any merchandise upon the premises to obtain a lower price than the merchandise was offered for sale for by the merchant; or
(iv) abandoning or disposing of any merchandise in such a manner that the merchant will be deprived of all or part of the value of the merchandise.
(b) "Shoplifting" means the theft of any goods offered for sale by a wholesale or retail store or other mercantile establishment.
History: En. Sec. 1, Ch. 180, L. 1993.