Merchant's Privilege Law
By: LN on Jul 12, 2012 04:57:35 PM
The Limitations of the Merchant's Privilege Law

California Penal Code Section 490.5 is referred to as The Merchant's Privilege Law. This code
sets forth the rights of various merchants including libraries, and theaters when dealing with
someone suspected of shoplifting or unlawfully taking things from their premises, criminal
offenses.

This code provides the law regarding penalties and fmes for petty thefts. It also establishes the
limited rights of any merchant who confronts someone the merchant believes has taken property
from that merchant.

California Penal Code Section 490.5(f)(1) and following details what a merchant may do. This
section, with bolding of key provisions is as follows:

n(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.


(2) In making the detention a merchant, theater owner, or a person

employed by a library facility may use a reasonable amount of

nondeadly force necessary to protect himself or herself and to

prevent escape of the person detained or the loss of tangible or

intangible property.


(3) During the period of detention any items which a merchant or

theater owner, or any items which a person employed by a library

facility has probable cause to believe are unlawfully taken from the

premises of the merchant or library facility, or recorded on theater

premises, and which are in plain view may be examined by the

merchant, theater owner, or person employed by a library facility for

the purposes of ascertaining the ownership thereof.


(4) A merchant, theater owner, a person employed by a library

facility, or an agent thereof, having probable cause to believe the

person detained was attempting to unlawfully take or has taken any

item from the premises, or was attempting to operate a video

recording device within the premises of a motion picture theater

without the authority of the owner of the theater, may request the

person detained to voluntarily surrender the item or recording.

Should the person detained refuse to surrender the recording or item

of which there is probable cause to believe has been recorded on or

unlawfully taken from the premises, or attempted to be recorded or

unlawfully taken from the premises, a limited and reasonable search

may be conducted by those authorized to make the detention in order


to recover the item. Only packages, shopping bags, handbags or other

property in the immediate possession of the person detained, but not

including any clothing worn by the person, may be searched pursuant

to this subdivision. Upon surrender or discovery of the item, the

person detained may also be requested, but may not be required, to

provide adequate proof of his or her true identity ...


(6) A peace officer who accepts custody of a person arrested for

an offense contained in this section may, subsequent to the arrest,

search the person arrested and his or her immediate possessions for

any item or items alleged to have been taken.


(7) In any civil action brought by any person resulting from a

detention or arrest by a merchant, it shall be a defense to such

action that the merchant detaining or arresting such person had

probable cause to believe that the person had stolen or attempted to

steal merchandise and that the merchant acted reasonably under all

the circumstances."


The statute thus provides ten definitive rules that merchants and their agents must follow. These
are:

The merchant must have probable cause.

The merchant may only detain a person if probable cause exists.

The merchant must ask the suspected person to voluntarily surrender

If the merchant does detain the person it must do so for a "reasonable time" and in
a "reasonable manner."

The merchant may only use a reasonable amount of "nondeadly force."

If the merchant searches the suspected person it may only search items in
"plain view."

The merchant must request that the person voluntarily surrender any suspected
merchandise.

The merchant may only search packages, shopping bags, handbags or other
property in the immediate possession of the person detained and not any clothing
worn by the person.

Only a peace officer may arrest a person and only after an arrest may the person
be searched by the peace officer.

The merchant must act reasonably under all the circumstances.

As seen by this law a merchant does not have unlimited rights to detain, search, andlor use
physical force against a person the merchant suspects of taking property. 

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