The arrest would be thrown out and the CD inadmissable. If I caught someone reaching into my car w/o my permission, they would be in trouble for sure. How does he know the CD is stolen? Unless he observed you stealing it (and already would have PC to arrest you) he is just fishing and as far as I am concerned, stealing from me. He should be calling the police instead of reaching inside cars.
Illegal search at Wal-mart?...
- Thread starter Danno
- Start date
The arrest would be thrown out and the CD inadmissable. If I caught someone reaching into my car w/o my permission, they would be in trouble for sure. How does he know the CD is stolen? Unless he observed you stealing it (and already would have PC to arrest you) he is just fishing and as far as I am concerned, stealing from me. He should be calling the police instead of reaching inside cars.
There's no doubt he's the breaking the law and would likely end up in trouble for going through your car. The point you're missing is that he's a private citizen not acting as an agent of the government, so he can't violate your 4th amendment rights. Though he might face charges for his actions, the CD would still be admissable, unless a police officer or other agent of the government had instructed him to go into your car after the CD.
FrankDrebin
Moderator
The arrest would be valid and the CD would be admissible. As ATW said, you have no 4th amendment protection from searches from him. As far the Wallmart guy breaking a law, which law? Post the elements of the law that you think he's breaking. Larceny? In most places that includes the element of an intent to deprive the owner of some type of property. He took a stolen CD out of your car. Where's the intent to deprive you of your property? What if he found out it wasn't stolen and left it in your car? Where's the larceny there?
The original question was if the search was unlawful. Even if he DOES take illegal action before looking through the bag, as in my other severe examples, whether or not he finds something, it's STILL not an unlawful search......Why? Because it was never a search within the meaning of the 4th amendment in the first place.......
I disagree. The CD is fruit of a poisonious tree. He broke the law getting the CD therefore it is inadmissable. The ends do not justify the means. If he is willing to break the law and break into my car, that makes it easy for my lawyer to convince the judge that he planted the CD. The case is full of holes.
It is an unlawful search. He broke the law by reaching into my car.
It is an unlawful search. He broke the law by reaching into my car.
FrankDrebin
Moderator
So, are you saying that you have Fourth amendment protection from a private security guard? Or are you implying that the exclusionary rule applies even when there is no breach of the 4th amendment?
Read US V. Jacobsen, especially this part:
"The fact that employees of the private carrier independently opened the package and made an examination that might have been impermissible for a Government agent cannot render unreasonable otherwise reasonable official conduct. Whether those employees' invasions of respondents' package were accidental or deliberate or were reasonable or unreasonable, they, because of their private character, did not violate the Fourth Amendment."
I actually didn't reference the 4th Amendment in describing it as a search. I recognize that the original post put this in the context of 4A, but when I said "It's a search," I made clear that I was not. Heh. Perhaps we should do with searches what we do with states: searches and Searches. 
I also, if you read, made no note of any law (regarding) search broken, but that the other offenses were what made it unlawful. It is very hard to avoid breaking laws when you're seizing property not yours to seize.
My reasonable suspicion standard is applicable in determining if a crime (theft, robbery, unlawful restraint) has been effected in obtaining the bag to look in it.
Yes, Frank, I'm well-aquainted with the exceptions to searches. Yes, I'm familiar with the (Freshman level) Police Procedure cases.
I also, if you read, made no note of any law (regarding) search broken, but that the other offenses were what made it unlawful. It is very hard to avoid breaking laws when you're seizing property not yours to seize.
My reasonable suspicion standard is applicable in determining if a crime (theft, robbery, unlawful restraint) has been effected in obtaining the bag to look in it.
Yes, Frank, I'm well-aquainted with the exceptions to searches. Yes, I'm familiar with the (Freshman level) Police Procedure cases.
FrankDrebin
Moderator
"...but that the other offenses were what made it unlawful." And I'm saying that even with the other unlawful offenses, what you're calling a search is STILL not unlawful because it's not a search under the 4th amendment.
People get hung up on dictionary definitions vs. legal definitions. ie. "If someone is looking for something, it must be a search." The 4th amendment says a search is when the GOVERNMENT INTRUDES in an area PROTECTED BY THE 4TH AMENDMENT. If those elements aren't there, it's not a search as far as #4 is concerned.
I infered from your post, and you seem to back it up here, that you were implying that the "other offenses" rendered the "search" and any subseqent seizure unlawful. I say no they didn't.
Merchant’s Privilege Rule is found in the California Penal Code Section 490.5.
Subdivisions (f) and (g).
(3) During the period of detention any items which a merchant has probable cause to believe were unlawfully taken from the premises of the merchant and which are in plain view may be examined by the merchant for purposes of ascertaining the ownership thereof.
This from the Security guard manual that all guards are required to pass.
The answer is NO.
The search, while not illegal under the 4th, is defiantly illegal under case law and penal law. After all, is it legal for me to reach though your parked car's open window and shuffle though your stuff? No. Of course not. PRK's Vehicle Code 10852 says
Subdivisions (f) and (g).
(3) During the period of detention any items which a merchant has probable cause to believe were unlawfully taken from the premises of the merchant and which are in plain view may be examined by the merchant for purposes of ascertaining the ownership thereof.
This from the Security guard manual that all guards are required to pass.
The answer is NO.
The search, while not illegal under the 4th, is defiantly illegal under case law and penal law. After all, is it legal for me to reach though your parked car's open window and shuffle though your stuff? No. Of course not. PRK's Vehicle Code 10852 says
FrankDrebin
Moderator
Does that make any contraband seized by a private guard inadmissible? Nope.
I already posted the case law....US Supreme Court case law......US V. Jacobsen....I'm contending they trump the security guard's handbook with regard to what will be excluded as unlawfully seized.
Shippers have different law than a walmart employee. The package in Jacobsen was under thier posession, and they are allowed to search things in their posession. Read the shipping contracts. Its in there. The shippers did not break any laws. Your walmart employee DID. Apples and oranges.
Searching a private vehicle for a item that is hidden is NOT legal. If it is in plain view, that's different... yer still not allowed to reach inside the car, but you can report what you see to the police.
I think you should take this up with a criminal defense lawyer or judge... There is no way the CD would be admissable in your scenario.
Searching a private vehicle for a item that is hidden is NOT legal. If it is in plain view, that's different... yer still not allowed to reach inside the car, but you can report what you see to the police.
I think you should take this up with a criminal defense lawyer or judge... There is no way the CD would be admissable in your scenario.
FrankDrebin
Moderator
THIS is what made the stuff admissible:
"they, because of their private character, did not violate the Fourth Amendment."
NOT the fact that they had any more authority as shippers to open packages....
The fact that they did or did not break any laws has nothing to do with the admissibility of the evidence.
I have, many times. Stuff seized by a private party in a manner that would have otherwise invoked the exclusionary rule had the police siezed it the same way, is perfectly admissible. The 4th amendment protects you from GOVERNMENT action, not the action of a private party or security guard.
Another example...Say the houskeeper at a motel went through your wife's purse when your wife wasn't around and found a vial of cocaine, then put it back in the purse and zipped it back up. She then took the purse to the desk and called police. The police come, talk to the maid, take the purse, unzip it and seize the cocaine. Perfectly legal. It was not a search because your wife's privacy in her purse was already breached by the maid, who told the police what was in there. Therefore, it's not a search when the police unzip the purse and seize the cocaine.
Mark in California
Inactive
Retail Trade
I find that most here people are mixing up two entirely different Jobs: receipt checker, and loss prevention agents.
The receipt checker is there just to check receipts and try to keep some order by by have some contact with everyone who leaves the store. They should not ever have any physical contact with the customers, unless they are backing up a loss prevention agent.
Loss control is another animal. If they are going to do a stop, you will already have them all around you. You will be asked once, and then you will be taken into custody. They will, if they have done their jobs right, had you under observation from the point where something was taken to the stop outside the store. Loss control will control the situation and in todays world will probably be recording the arrest. They are not their to discuss or argue with you and will use force if needed. You will be taken into custody and you will be taken to a place to await the police. If you are cool, you might be able to talk yourself into just being "banned for life" with a signed admision of guilt.
I once saw a guy upgrade a petty shoplifting (a can of tuna) that would have been dismissed, to a felony possesion because he argued with the loss control agents when the police were there. At that point the pot, which was discovered when he was searched by security, was given to the police. He had been told to keep his mouth shut except to answere questions. As soon as the police arrived he started acting out. (at that time I in college and was just a store drone backing up loss control)
If loss control is wrong the store will lose big bucks. I run a security company, and one of the question the general liability insurance companies ask is if we do any retail trade. It rates right up there with armed jobs, working in bars and using patrol dogs.
As to the orginal question, what do I do when I set off a alarm. I keep on going. If someone wishes to check my purchases I let them. Life is just to short to get upset about this. I let them do their job, so I can get on with mine.
I find that most here people are mixing up two entirely different Jobs: receipt checker, and loss prevention agents.The receipt checker is there just to check receipts and try to keep some order by by have some contact with everyone who leaves the store. They should not ever have any physical contact with the customers, unless they are backing up a loss prevention agent.
Loss control is another animal. If they are going to do a stop, you will already have them all around you. You will be asked once, and then you will be taken into custody. They will, if they have done their jobs right, had you under observation from the point where something was taken to the stop outside the store. Loss control will control the situation and in todays world will probably be recording the arrest. They are not their to discuss or argue with you and will use force if needed. You will be taken into custody and you will be taken to a place to await the police. If you are cool, you might be able to talk yourself into just being "banned for life" with a signed admision of guilt.
I once saw a guy upgrade a petty shoplifting (a can of tuna) that would have been dismissed, to a felony possesion because he argued with the loss control agents when the police were there. At that point the pot, which was discovered when he was searched by security, was given to the police. He had been told to keep his mouth shut except to answere questions. As soon as the police arrived he started acting out. (at that time I in college and was just a store drone backing up loss control)
If loss control is wrong the store will lose big bucks. I run a security company, and one of the question the general liability insurance companies ask is if we do any retail trade. It rates right up there with armed jobs, working in bars and using patrol dogs.
As to the orginal question, what do I do when I set off a alarm. I keep on going. If someone wishes to check my purchases I let them. Life is just to short to get upset about this. I let them do their job, so I can get on with mine.
FrankDrebin
Moderator
Most of the major stores around here train their loss control people not to put their hands on anyone that looks like they're going to resist. Just let them go. That's after a few of them were shot and killed over shoplifting incidents. For search purporses and the 4th amendment, the loss prevention "officer" and the receipt checker may as well be one in the same, because neither one are constrained in any way by the 4th amendment, unless they are specifically acting at the direction of government agents in a particular search.
jburtonpdx
New member
I just prefer to shop naked in those stores... That way they simply can not say that I am concealing anything... The one time the buzzer went off I stood there holding my bag for the guy to go through it, he pretended not to see me....
Banned from about every store in the area now.
Banned from about every store in the area now.
I don't really have a problem stopping when the "alarm" goes off
at Wally-World, as long as they only want to see my receipt and
my bag. Now, should they start putting hands on me, and I'm
carrying, concealed, I might take that as a threat to take my
weapon, and things could get VERY HAIRY, very quickly! I hope
that never happens.
By the way, all these "legal interpretations" of the 4th Amendment
and the Bill of Rights, etc., have been very interesting. I hear there's
an opening on the Supreme Court, if anybody is really interested.
Walter
at Wally-World, as long as they only want to see my receipt and
my bag. Now, should they start putting hands on me, and I'm
carrying, concealed, I might take that as a threat to take my
weapon, and things could get VERY HAIRY, very quickly! I hope
that never happens.
By the way, all these "legal interpretations" of the 4th Amendment
and the Bill of Rights, etc., have been very interesting. I hear there's
an opening on the Supreme Court, if anybody is really interested.
Walter
FrankDrebin
Moderator
It pays to know what your rights are......and aren't.
I do not care what you call it, "loss control" or what ever. They have no police powers to arrest me or detain me. As I said, I just don't bother stopping for those guys.
If they want to lay a hand on me, that is their choice. Preventing someone from leaving and unlawfully detaining someone is actually a forcible felony under Florida Law.
But, too many citizens don't understand their rights, and think they have to obey other private citizens, even if they have a fake badge.
If they want to lay a hand on me, that is their choice. Preventing someone from leaving and unlawfully detaining someone is actually a forcible felony under Florida Law.
But, too many citizens don't understand their rights, and think they have to obey other private citizens, even if they have a fake badge.
This is just sad.
Evidently nobody can seem to take the time to google and look up unlawful detention. With the exception of a very few states "loss prevention specialists" or Wally world employees have no power whatsoever to force you to stop and be inspected without reasonable cause. What is reasonable cause you might ask? Do yourself a favor and google it. There are several specific steps that real loss prevention people know they must follow or be successfully sued for everything they own plus 0ne dollar. They include but are not limited to: See the perp approach the display, see the perp take the item, see the perp conceal the item, see the perp attempt to leave without paying for the item and most important never lose sight of the perp after they take the item. I never stop at Wally world, Worst buy or any other chain. Their signs mean squat! Sam’s club is a membership club and the most that they can do is revoke your membership.
Evidently nobody can seem to take the time to google and look up unlawful detention. With the exception of a very few states "loss prevention specialists" or Wally world employees have no power whatsoever to force you to stop and be inspected without reasonable cause. What is reasonable cause you might ask? Do yourself a favor and google it. There are several specific steps that real loss prevention people know they must follow or be successfully sued for everything they own plus 0ne dollar. They include but are not limited to: See the perp approach the display, see the perp take the item, see the perp conceal the item, see the perp attempt to leave without paying for the item and most important never lose sight of the perp after they take the item. I never stop at Wally world, Worst buy or any other chain. Their signs mean squat! Sam’s club is a membership club and the most that they can do is revoke your membership.