by Christian Stegmaier
In any action brought by reason of having been delayed by a merchant or merchant’s employee or agent on or near the premises of a mercantile establishment for the purpose of investigation concerning the ownership of any merchandise, it shall be a defense to such action if: (1) [t]he person was delayed in a reasonable manner and for a reasonable time to permit such investigation, and (2) reasonable cause existed to believe that the person delayed had committed the crime of shoplifting.
Thus, South Carolina law protects merchants and their employees who stop suspected shoplifters upon two conditions:
(1) the suspected shoplifter was delayed in a reasonable manner and for a reasonable amount of time to permit investigation; and
(2) reasonable cause existed to believe the person delayed committed the crime of shoplifting.
Section 16-13-140 refers to “the crime of shoplifting,” which is defined in § 16-13-110
of the South Carolina Code:
A person is guilty of shoplifting if he:
(1) takes possession of, carries away, transfers from one person to another or from one area of a store or other retail mercantile establishment to another area, or causes to be carried away or transferred any merchandise displayed, held, stored, or offered for sale by any store or other retail mercantile establishment with the intention of depriving the merchant of the possession, use, or benefit of the merchandise without paying the full retail value;
(2) alters, transfers, or removes any label, price tag marking, indicia of value, or any
other markings which aid in determining value affixed to any merchandise
displayed, held, stored, or offered for sale in a store or other retail mercantile establishment and attempts to purchase the merchandise personally or in consort with another at less than the full retail value with the intention of depriving the merchant of the full retail value of the merchandise;
(3) transfers any merchandise displayed, held, stored, or offered for sale by any
store or other retail mercantile establishment from the container in which it is
displayed to any other container with intent to deprive the merchant of the full
It is permissible to infer that any person wilfully concealing unpurchased goods or merchandise of any store or other mercantile establishment either on the premises or outside the premises of the store has concealed the article with the intention of converting it to his own use without paying the purchase price thereof within the meaning of § 16-13-110. It is also permissible to infer that the finding of the unpurchased goods or merchandise concealed upon the person or among the belongings of the person is evidence of wilful concealment. If the person conceals or causes to be concealed the unpurchased goods or merchandise upon the person or among the belongings of another, it is also permissible to infer that the person so concealing such goods wilfully concealed them with the intention of converting them to his own use without paying the purchase price thereof within the meaning of § 16-13-110.
Sections 16-13-110 and -120 are arguably to be read in conjunction with one another.
The critical aspect of the Merchant’s Defense revolves around the “reasonable cause” requirement. A key element of the Merchant’s Defense is the existence of reasonable cause to believe the person detained committed “the crime of shoplifting.” The law of this state is that the phrase “reasonable cause,” as set out in § 16-13-140, in fact means “probable cause” so that probable cause must have existed to believe the person delayed had committed the crime of shoplifting.
“Probable cause” is defined as “a good faith belief that a person is guilty of a crime when this belief rests on facts that would induce an ordinarily prudent and cautious person, under the circumstances, to believe the person is guilty of a crime.” Probable cause involves the existence of such facts or circumstances as would excite the belief of a reasonable mind – acting on facts known to the merchant – that the person delayed had committed the crime of shoplifting.
Section 16-13-140 provides a defense to the false imprisonment claim if the merchant has probable cause to believe a person is taking his property and acts reasonably in his efforts to investigate the matter. That is to say, probable cause is a defense under § 16-13-140 to actions arising from a merchant’s delay of suspected shoplifters. This defense applies and protects the merchant and its employees even though the customer is not actually guilty of shoplifting.
Determining if reasonable cause actually existed in a shoplifting case is typically a question of fact for the jury to decide.
In determining probable cause, only those facts and circumstances that were or should have been known to the defendant at the time the plaintiff was stopped should be considered. Probable cause exists even if the facts relied on subsequently prove to be false or incorrect as long as the facts known at the time plaintiff was stopped would have induced a reasonable and prudent person to believe plaintiff was guilty of the crime of shoplifting and a reasonable person would have relied on those facts. The facts known to the defendant must only give rise to a reasonable inference that the person delayed was guilty of shoplifting.
A reasonable stop and delay, along with the existence of probable cause to believe the person delayed had committed the crime of shoplifting, constitute a full and complete defense to any claim arising from the stop and delay. In other words, if the jury finds from the evidence and reasonable inferences therein that the merchant or its employees had probable cause to believe the customer had committed the crime of shoplifting and that the customer was delayed in a reasonable manner and for a reasonable time under the circumstances, the customer cannot recover from the merchant, even though the customer did not actually shoplift.
Probable cause does not turn upon the plaintiff’s actual guilt or innocence. The test is whether the facts known to the merchant or the merchant’s employees would lead a reasonable person to believe that plaintiff was guilty of shoplifting. The fact that a customer did not shoplift does not mean the store personnel did not have reasonable grounds to detain him or her in the first place. In other words, the law recognizes the interest of a store owner in protecting his property. In an effort to protect his interest, the law allows a store owner to detain a person for a reasonable amount of time where probable cause exists to believe the person delayed committed the crime of shoplifting.
Probable cause does not mean absolute certainty. The facts known to the merchant or the merchant’s employees do not have to absolutely establish that the customer stopped was engaged in criminal activity. The facts known to the merchant or the merchant’s employees must only give rise to a reasonable inference that the person delayed was guilty of shoplifting.
The reasonableness of the merchant’s delay of the suspected shoplifter must be judged by the circumstances at the time of the stop and delay and not by facts later known or discovered by the merchant. The jury must judge the reasonableness of the manner and time of the delay by the facts known to the merchant or his employees at the time.
Section 16-13-140 gives a merchant and its employees the right to reasonably delay customers or patrons on or near the merchant’s establishment to determine the ownership of property. This section not only gives the merchant or the merchant’s employees the right to delay a suspected shoplifter, but also gives a right to require the suspected shoplifter to return to the merchant’s establishment and/or remain in the merchant’s establishment until a reasonable investigation can be conducted into the suspected shoplifting.
Much credit is given to The Honorable Ralph King Anderson, Jr., Requests to Charge – Civil for a good portion of this analysis, particularly in the later paragraphs. Contact the SC Bar at scbar.org for more information regarding this invaluable source of information to lawyers practicing in South Carolina.
The following should not be considered legal advice. For advice about a legal question you may have concerning shoplifting, the Merchant’s Defense, etc., contact a lawyer licensed in your state to discuss the same.