SHOPLIFTING: 6 STEPS OF PROBABLE CAUSE - IGNORE THEM AT YOUR PERIL

“Are you a cop?” “Are you allowed to stop a shoplifter?” No and yes, I’ve answered these questions more often than I can count with both hands and a few toes for good measure. In truth, the latter “Can you stop a shoplifter…” has to be answered with a qualified “yes” not an absolute one.  

Asset Protection personnel do not have police powers and can only temporarily detain a suspect to recover merchandise (and in practical terms to do some paperwork), or for a limited amount of time while waiting for police to arrive.  Yet, even these clarifications do not tell the whole story.  A shoplifter can only be apprehended if a specific set of conditions are met. 

We call these conditions Probable Cause Steps or The 6 Steps and this article will discuss them in detail. 
Before we get further into the article, please permit me a disclaimer. This article is written based on my experience without formal resources having been used. It is written for general informational purposes only and should never be considered legal advice.   

The 6 Steps are:

1. Approach: The suspect is observed approaching the area where the merchandise in question is displayed without having possession of the item(s) beforehand.
2. Selection: The suspect is observed picking up (selecting) the merchandise.
3. Concealment: The suspect is observed concealing the merchandise (in cases where concealment occurs, keep in mind that a suspect can also just walk out with an item without concealing it).
4. Uninterrupted Surveillance: The suspect is continuously observed until he/she passes all points of sale, and exits the store.
5. Past Point-of-Sale: The suspect walks beyond the register area and does not pay for the merchandise.
6. Exit: The suspect exits the establishment while in possession of the unpaid merchandise.

If you’re wondering how anyone is ever caught stealing when the LP Officer has to jump through so many hoops just to make a legal stop, the entire LP community feels your pain.  Nonetheless, over time most of us have also come to realize how critical these steps are in keeping everyone safe and removing ambiguity from an apprehension.  When the steps are observed by trained professionals, they provide almost complete certainty that the person being detained has in fact attempted to remove unpaid merchandise from a store. 

Store Detectives who cut corners do so at their own peril and will eventually find themselves attempting to stop an innocent customer.  As you can probably guess, causing this type of an incident leads to almost immediate disciplinary action for the officer often including employment termination. Legal liability for the employer is also likely to follow.  A bad stop is bad news for everyone involved.  Would you sue if someone detained you, embarrassed you and accused you of shoplifting in error?  While honest mistakes can happen, they almost always occur as a result of one of these steps being intentionally or unintentionally disregarded.

Step # 1: The suspect is observed approaching the area where the merchandise in question is displayed without having possession of the item(s) beforehand.

I once watched a man at Home Depot bring in a broken and clearly used toilet seat to make sure the new one he was buying would fit his toilet.  The definition of DISGUSTING comes to mind!  While a store detective is unlikely to confuse a man walking around with a stained toilet seat for a shoplifter, other items brought into retail stores may lead to confusion and even to detaining an innocent person.

Let’s walk through a scenario together so you understand exactly how a mistake can happen.  Let’s assume that John needs to visit the supermarket to pick up an over-the-counter pain medication for his wife.  Before leaving the house, he grabs the empty bottle to make sure he doesn’t buy the wrong item.  Strange?  Not really… we know how patient wives can be when we make mistakes at the supermarket.  John’s wife is no different which makes his behavior not uncommon. 

John enters the store, empty bottle in hand, walks to the aisle, and looks for the item he needs to purchase.  He may even raise the bottle up to the aisle and present it in front of other items in an effort to find the right bottle to buy. Unfortunately it turns out that the store was out of stock on this particular item and John has to leave without making a purchase.

At this point, completely unbeknownst to John, Victor a Loss Prevention Officer hungry for an apprehension notices him and begins a formal observation.  Victor recognizes the product in John’s hand as a commonly stolen item. He also notes that John is standing right by the area where this item is displayed. By now, John has given up and starts to head back home wondering if he loves his wife enough to drive to the other pharmacy across town.  Just kidding, of course he will drive there, out of love…. and fear of coming home empty handed.

While walking out, John places the bottle (the one he brought from home) in his pocket and exits the store.  It’s his bottle, he can do anything he pleases with it.  From Victor’s perspective though, this suspicious man, was in possession of highly shoplifted merchandise, and just concealed the item in his pocket. Gotcha! Victor thinks.
Would you make the stop? You’re likely to answer Given the way we have explained John’s actions, you are likely to answer No. But would you act differently if you were observing from Victor’s perspective? The error is obvious. Yet an LP Officer usually has a short few minutes to decide whether or not to stop a customer.  Moreover, these decisions are being made while a trainload of adrenaline is running through our veins. It’s very easy to make a bad decision even under the best of circumstances. 

Clearly, if Victor is well trained and disciplined, he will not make the apprehension. That’s what training and discipline is all about.  Even when your emotional brain is saying one thing, training and discipline tell you to pause, breathe and do the right thing. However, lacking these restrainers, it is very tempting to take the leap and stop John.  After all, the “suspect” is at the right aisle, holding merchandise that is sold by the store, then concealing the item, walking past the point of sale, and exiting without paying.  It feels really suspicious, quite safe from a legal perspective.  And yet should he proceed with the apprehension, Victor would be walking into a legal minefield and a disciplinary nightmare of his own making.  

If you did not observe the customer enter the area without the merchandise in question, then there is not enough probable cause to make an apprehension, period, no exception.  You can continue observation and hope that additional selections and concealments occur.  If this happens then you can make the step based only on the new observation, but not due to the initial observations.    

Step # 2: The subject must be observed picking up the product.

This step is straightforward enough and is preceded by the customer approaching the area empty handed.  Steps 1 and 2 should flow smoothly one into the other. You can think of them as two sides of the same coin, two indispensable sides. After the customer approaches the merchandise, it is essential that he is observed selecting it. Emphasis on the word “observed”. A customer seeing approaching the area empty handed, and then later observed holding the item is not the same as the customer entering the area and specifically watched as his hand reaches over and grabs the merchandise in question. 

A Store Detective bypassing this step will eventually lead to the same catastrophic result as missing the first one. If a customer brought an item from home, perhaps inside his/her pocket, that item could be confused for store inventory and lead to an unproductive stop (formal term for stopping an innocent customer).  The only way to practically eliminate this possibility is to first see the customer approaching the area where the merchandise is displayed, and then watch him selecting the particular item.

We are intentionally not spending a great deal of time on this step because it is so interconnected to Step 1 that once understood there is little need to add more content.  If you have a specific point to add about this step, feel free to comment below.

Step # 3: The suspect is observed concealing the merchandise (in cases where concealment occurs).

Sometimes a shoplifter conceals immediately to the delight of the LP officer conducting the observation. It’s not that we want people to do bad things, but whatever is going to happen, we do prefer when it happens quickly.  Whether someone is going to steal or pay for the item, it’s best when the concealment or purchase occurs sooner rather than later. This way the store detective is either encouraged to continue observing (if the item is concealed) or at least if the merchandise is paid for quickly, then the observation can be shifted to another customer without much time wasted.

Unfortunately it does not always work out this way. Some folks walk and shop slowly, and others steal at a snail’s pace. I
once observed a customer conceal around $100 worth of batteries and cold medicine in a backpack, only to watch him walk over to the magazine aisle, open a magazine, sit on the floor and spend the next hour reading the magazine. I kept screaming at the screen “Take the magazine, take it, read it at home, Ahhhh!!!”. Ironically, he didn’t even steal the magazine. I was ready to have a nervous breakdown when he finally got up, returned the magazine, picked up his bag with the stolen items, and proceeded to exit the store.

When I stopped him my first question was “why the heck did you spend an hour reading a magazine?”  He was surprised that I had been watching him for that long, and confused as to why I was more frustrated with his reading habits than about the theft.  Attention shoplifters, steal quickly and make an LP Manager’s day!

Of course shoplifting can occur without concealment. Someone can in fact pick up merchandise and exit the store without paying, item in hand, always visible.  For this reason, we should consider Step 3 as optional (up to the thief).  Your job is to observe, document and decide if you have enough cause to make the apprehension. 

Step # 4: Uninterrupted Surveillance. The suspect is continuously observed until he/she passes all points of sale, and exits the store.

After concealment is observed (or following selection in cases in which concealment does not happen), it is critical to maintain continuous observation until the customer passes all registers and exits the store. Essentially, you have to keep eyes on the suspect until the apprehension is made.

The purpose of this step is to ensure that the subject does not discard the merchandise without you becoming aware of it. Some would be shoplifters get shy right at the moment of truth.  They come in willing to select and conceal, but a few minutes later they may change their minds, empty their pockets and dump the merchandise. If you observed someone approach, select and conceal and then lost them for a few moments, the suspect could have discarded the product… and then… yes… you guessed it, you have an unproductive stop in your hands. 

In my experience, this step is the toughest one to be disciplined about.  Or I can say this step is one your emotional brain will beg you to override at times.  When you have reached the level of concealment, the suspect has already shown that he is willing to take concrete action to commit a theft and few doubts remain about his intention. But then bad luck happens.  The guy walked into an aisle without a camera, or he turned a tight corner and by the time you caught up, you lost sight for a minute or two.  By now, every cell in your body will be pushing you to make the stop since there’s such a high probability that the customer will still have the stolen items if you proceed with the apprehension. 
Nevertheless, a professional LP agent knows when to allow her logical brain to override her impulsive one.  There are times when as much as you want to, you should decline to make the stop. Shoplifters that get away with stealing tend to come back and you’ll get them next time.  That’s the thought I used to console myself with. It didn’t work all that well but doing the right thing is its own reward.

If you have been in LP and have experience making apprehension, here’s a question I would love to hear your thoughts on.  Feel free to comment below or otherwise reach out to me. Losing surveillance for seconds at a time is very common for most Store Detectives, especially while conducting sales floor observation.  For example, when a subject turns a corner at the end of an aisle, losing direct sight happens often.  As a matter of fact, when someone turns at the end of an aisle, it’s nearly impossible to maintain direct line of sight for a few seconds at least. 

In the strictest interpretation this is considered a break in surveillance.  This is where an experienced detective who has nothing to prove will tend to take a step back, analyze the situation and not apprehend based on lack of probable cause. But many will make that stop and I would venture to say that even some experienced professionals occasionally make a judgement call to stop even when they technically shouldn’t by the letter of the law.  Again, I provide the example of turning at the end of an aisle because it happens often and it’s nearly impossible to avoid (unless conducting team surveillances and/or using cameras). 

Step # 5: The suspect walks beyond the register area and does not pay for the merchandise.

The suspect must walk beyond the register area at the store.  When stores have all their registers near the exit this is easy.  With certain business models, one has to be a bit more careful.  For example, home improvement stores often have garden registers and some supermarkets may have an outside register to sell plants or other items merchandised outside the store.  The LP Officer must be familiar with the location of all registers and not make the apprehension unless these points have been passed.  This removes any benefit of the doubt the suspect could seek in court.  It removes her ability to use the “I was going to pay for it but didn’t get a chance to” defense. 

We should also note that in some cases, specifically in a handful of states, a customer who has concealed with clear intent to shoplift can be stopped even if the remaining steps have not been satisfied. What constitutes intent? In my experience, discarding packaging or security tags and concealing without the packaging can suffice. Since ringing up and paying for merchandise would be virtually impossible without the packaging, and removing security features serves no purpose beyond facilitating theft, it’s logical to assume that a customer removing packaging and defeating security measures does not actually intend to pay for the items that have been concealed.

With this said, most companies do not allow an apprehension to occur at this stage.  If this is the case with your employer, making a stop here would violate company policy at most retailers. Even if your company allows it, don’t be tempted to make the stop without state law supporting your actions and unless there is a specific benefit for doing so.
The only possible advantage for making this kind of a stop is to overcome a safety concern such as when dealing with a suspect who has a history of running or fighting and keeping the person further away from the exit is likely to discourage him resisting.
 
Step # 6: The suspect exits the establishment while in possession of the unpaid merchandise.

This is our last step and it’s fairly straight forward, with one caveat. Similar to requiring the suspect to proceed beyond all points of sale, the purpose of this step is to avoid an apprehension of a customer who actually indented to pay for the items but was not given the opportunity.

The problem (the caveat) is that most retailers will not allow Loss Prevention Officers to make apprehensions beyond the business’s actual premises.  Sure you can be totally sure that he doesn’t intend to pay for the big stereo after he’s loaded it in his pickup truck, but trying to pull a guy and your stereo our of a Dodge Ram is not fun or safe (for sure no safe). To apprehend the customer at this stage severely increases the risk of you or the suspect getting hurt.  Both instances are quite unacceptable to any retailer.

The end result is that you’ll usually have a very small window to make the apprehension.  Many retailers encourage the apprehension to be made on the vestibule area, which is beyond the physical store but before the parking lot.  Some retailers will allow a stop at the very beginning of the parking lot, but virtually all will discourage or prohibit a stop once the customer has proceeded far beyond this area.

Don’t push the limits of this restriction. As frustrating as it can be, it’s there to protect you as well as others around you.  Times have changed, when I started, I routinely made stops on my own, in the parking lot and even on the sidewalk near the store.  It wasn’t very smart, I was young and stupid and I wouldn’t put myself in that situation today even if I was legally allowed to. 

But decades ago, the legal environment was much more on your side and your employer was more likely to have a “whatever it took” attitude.  I knew an LP guy who chased a perp across the street, into an apartment building and cuffed the dude in his own living room. Then he called the cops who were quite confused about who was who and what had just happened.  They still took the suspect and somehow he made it through the ordeal without even a write up on his file.  He was lucky that he knew many cops in a small town and the suspect was a known drug user with a long arrest record. But I would not recommend this today (I did not recommend it at the time either).  You might just end up dead or seriously hurt.  Even if you survive, a stunt like this (or anything similar) would result in the suspect being rewarded with a ridiculous amount of money and the LP person rightfully losing his job and getting hit with criminal charges.

As always, if I can help you with anything, reach out any time. Best of luck and be safe out there.  

Want to learn more about becoming a Loss Prevention Officer? Check out The Store Detective Training Manual.  A Practical Reference for Current and Aspiring Loss Prevention Officers.   

If you enjoyed this article, read our other posts (click on the title below to read the article)

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