How You Can Be Wrongly Detained for Shoplifting

Have you ever been stopped in a store and accused of shoplifting when you were completely innocent? This humiliating and infuriating experience happens more often than you may realize. While loss prevention officers have an important job to do in preventing theft, they must follow strict legal guidelines before detaining a customer. When they fail to adhere to proper procedures, law-abiding shoppers can get caught in the crosshairs. If you were falsely accused of shoplifting in Miami, the way you respond during and immediately after the encounter can affect whether the accusation escalates into a criminal case.

In this post, I’ll explain the key observations that loss prevention personnel should make before making a shoplifting stop. I’ll also discuss common mistakes and missteps that can lead to false accusations. My goal is to educate the public on your rights as a customer, while also helping prevent the nightmare of being improperly detained for a crime you didn’t commit.

Probable Cause in a Shoplifting Case

Under section 812.015(3)(a), Florida Statutes, a merchant must have probable cause to believe retail theft occurred and that taking the person into custody can recover the property. The detention must be reasonable in manner and length, and the merchant must call police immediately after taking the person into custody.

The six observations below can help loss prevention (LP) staff avoid mistakes. They are safeguards, not six separate legal requirements. Florida law does not always require concealment, uninterrupted surveillance, or leaving the store before a detention.

  1. Approach – The suspect is observed entering the area where the merchandise is displayed, without already having the item(s) in their possession beforehand.
  2. Selection – The suspect is observed selecting or taking the merchandise off the shelf/rack.
  3. Concealment – The suspect is seen concealing the merchandise, either on their person or in a bag, purse, backpack, etc. (Note: concealment may not always occur.)
  4. Uninterrupted Surveillance – The suspect is kept in continuous view until they pass the checkout registers and exit the store.
  5. Passing Point-of-Sale – The suspect passes all registers without paying for the concealed merchandise.
  6. Exit – The suspect exits the store while still in possession of the unpaid merchandise.

Missing an observation can leave gaps in the evidence, but it does not automatically make a detention unlawful. The statute also allows a reasonable, brief inquiry when an antishoplifting device activates as someone exits the store or a protected area, provided customers received sufficient posted notice of the device.

For more on the limits of a store’s authority to hold a customer, see our explanation of Florida’s shopkeeper’s privilege.

False Accusations: Where LP Goes Wrong

False accusations can arise when loss prevention staff overlook facts or draw conclusions from incomplete observations. Examples include:

  • Assuming concealed merchandise is unpaid — A shopper may have brought an item into the store. Without checking where it came from, an employee may mistake the shopper’s property for store merchandise.
  • Losing visual contact — A shopper may put merchandise back while an employee is looking elsewhere. A gap in observation can weaken the employee’s account of what happened.
  • Unclear register location – Registers may be located both inside and outside the store. LP stops someone right after they walk out the door, before determining if they passed all checkout points.
  • Relying on gut instinct — An employee may mistake nervousness or unfamiliar behavior for evidence of theft, without checking whether the shopper actually took unpaid merchandise.
  • Poor training – An inexperienced or undertrained LP officer may not fully understand probable cause laws and procedures. Their ignorance leads to improper stops.

While understanding common LP mistakes is helpful, it still leaves innocent shoppers asking: How can I prevent being falsely accused? Here are five tips:

Tips on How to Avoid Erroneous Shoplifting Stops

  1. If you need to bring an item in with you, make it obvious. Carry medicine bottles, product instructions, or an empty package visibly in your hand rather than concealed in a bag or pocket.
  2. If purchasing multiple items, use a cart rather than a purse or backpack. Checkout with a cashier versus self-checkout. Don’t give LP any reason to be suspicious.
  3. If you decide to stop shopping, leave all unpaid merchandise in the store. Ask an employee where to leave your cart or return the items to their shelves.
  4. Before leaving, check that every item has been paid for, including anything beneath the cart or inside another item. Keep your receipt.
  5. If stopped, stay calm and ask whether you are free to leave. If staff say you are being detained, do not physically resist. Ask why you are being held and request that relevant security footage be preserved. Avoid signing statements or admissions before speaking with a lawyer.

Shoplifting is a real problem for retailers, and LP personnel have a legitimate purpose in stopping actual thieves. However, following proper lawful procedures is critical to avoid incorrectly detaining innocent customers in the process.

If you have been wrongly stopped or accused of shoplifting, contact a lawyer promptly. Our guide on what to do if you are falsely accused of shoplifting discusses steps to take after an accusation. Save your receipts, write down what happened, and identify any witnesses. A lawyer can seek surveillance footage and assess both the accusation and the grounds for your detention. Being innocent does not, by itself, establish that the detention was unlawful.

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