Could a South Carolina store employee who was not a security guard detain a suspected shoplifter?

Plain-English summary

A Greenwood municipal judge asked in 2003 whether a business employee who was not a security guard could make a citizen's arrest in several suspected shoplifting situations. The Attorney General explained that South Carolina recognized only statutory citizen-arrest authority, not a general common-law right. Its answer turned on whether the conduct amounted to shoplifting, which the office treated as a form of larceny, and whether the person making the arrest had reasonable cause to believe it occurred.

The opinion quoted a broad shoplifting definition. It covered taking or moving merchandise with intent to deprive the merchant of its full value, altering a price label, and moving merchandise between containers with that intent. The AG did not issue four separate yes-or-no rulings for the question's store-exit, alarm, concealment, and price-tag examples. It concluded a merchant with reasonable cause to believe shoplifting had occurred could make a citizen's arrest. It separately quoted a statutory defense for a merchant or employee who delayed someone reasonably and for a reasonable time to investigate a suspected theft.

Currency note

This opinion was issued in 2003. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Did a store employee need to be a security guard to make a citizen's arrest? A: The opinion did not impose that job-title requirement. It said the authority was statutory and concluded a merchant with reasonable cause to believe shoplifting occurred could make an arrest.

Q: Did a customer have to leave the store before shoplifting could occur? A: The statutory definition quoted by the AG also covered certain movement or price-tag changes inside a retail establishment, with the required intent.

Q: Could an employee briefly delay someone to investigate suspected theft? A: The opinion quoted a statutory defense when the delay was reasonable in manner and time and there was reasonable cause to believe shoplifting occurred.

Background and statutory framework

The AG relied on State v. McAteer for the rule that citizen arrests require statutory authority. It read the citizen-arrest provisions with Section 16-13-10's shoplifting definition and the merchant-investigation defense. The opinion gave a general legal answer rather than factual findings for each incident described.

Citations and references

• Section 16-13-10: shoplifting conduct quoted in the opinion.
• State v. McAteer: the state supreme court ruling on the statutory basis for citizen arrests.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/march-24-2003/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/03/03march24miller.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
HENRY McMAsrnR
A1TORNEY GENERAL

March 24, 2003
The Honorable B. Lee Miller
Municipal Court Judge
City of Greenwood
520 Monwnent Street
Post Office Box 40
Greenwood, South Carolina 29648-0040

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Re:

Citizen's Arrest for Shoplifting

Dear Judge Miller:
You have requested an opinion of this office concerning whether a citizen, employed in a business in any capacity other than a security guard, can make a citizen's arrest for shoplifting when: ( 1) the employee actually sees a person take possession of an item and walk out of the store; (2) an alarm has sounded and a person is detained; (3) the employee sees a person hide the merchandise on his person but has not left the store; (4) the employee sees a person change the price tag on a piece of merchandise.

Law/Analysis
In State v. McAteer, 340 S.C. 644, 532 S.E.2d 865 (2000), the South Carolina Supreme Court considered the sr.ope of the State's laws with regard to a citizen's arrest. The Court held that "there is no common law right to make warrantless citizen' s arrests of any kind and that such rights as exist are created by ~tatute in South Carolina" The Court in McAteer noted that the provisions allowing for citizen's arrests are found in S.C. Code Ann. §17-13-10and§17-13-20. Section 17-1310 provides that a person may arrest a felon or thief as follows: Upon (a) view of a felony committed, (b) certain information that a felony has been committed or (c) view of a larceny committed, any person may arrest the felon or thief and take him to a judge or magistrate, to be dealt with according to law.

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Ramp C,)>ENN!S BUUDING • POST OFFICE Box 11549 • COLUMBIA, S.C. 29211-1549 • TELEPHONE: 803-734-3970 • FACSIMILE: 803-253-6283

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The Honorable B. Lee Miller
Page 2
March 24, 2003
Additionally, S.C. Code Ann. §17-13-20 provides the following:

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A citizen may arrest a person in the night time by efficient means as the darkness and the probability of escape render necessary, even if the life of the person should be taken, when the person: (a) has committed a felony; (b) has entered a dwelling house without express or implied permission; (c) has broken or is breaking into an outhouse with a view to plunder; (d) has in his possession stolen property; or (e) being under circumstances with raise just suspicion of his design to steal or to commit some felony, flees when he is hailed. Therefore, private citizens have the power to arrest anywhere in the State for any crime covered by either §17-13-10 or §17-13-20. Both statutes provide that a person can make a citizen's arrest when he has witnessed a larceny. Section 16-13-10 of the South Carolina Code of laws provides that a person is guilty of shoplifting if he:

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(1) takes possession of, carries away, transfers ... from one area of a ... 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 . . . 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 ... ; (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 retail value.

In 1967, this Office concluded that shoplifting as defined by statute is nothing more than a type of larceny for which there is a different penalty. Op. Atty. Gen. dated September 18, 1967. While the shoplifting statute has been amended since the 1967 opinion was rendered, current law supports the conclusion equating shoplifting with a type oflarceny. Larceny is the felonious taking and carrying away of the goods of another agairu."i the owner's will or without his consent. See Broom v. State, 351 S.C. 219~ 569 S.E.2d 336 (2002); State v. Condrey, 349 S.C. 184, 562 S.E.2d 320

The Honorable B. Lee Miller
Page 3
March 24, 2003
(Ct.App.2002). 1 Further, "[l]arceny is ... implicit within the crime of shoplifting." State v. Al Amin,
_ S.C. _ , _ S.E.2d _ 2003 WL 687572 (S.C.App. 2003). 2 Therefore, if a merchant has reasonable cause to believe that a shoplifting incident has taken place, the merchant can make a citizen's arrest.

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Furthermore, §16-13-140 provides a defense to an action for a delay by a merchant or his employee or agent to investigate a possible theft from his establishment. If"the person was delayed in a reasonable manner for a reasonable time to permit such investigation, and reasonable cause existed to believe that the person delayed had committed the crime of shoplifting," the merchant or employee or agent is not subject to liability for the delay to investigate. S.C. Code Ann. § 16-13-140.

David K. Avant
Assistant Attorney General

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"Felonious" does not always imply that the act is related to the commission of a felony. Felonious is also understood to mean simply "[p]roceeding from an evil heart or purpose; malicious; villainous." See Black's Law Dictionary (7th ed. 1999). 2

NOTICE: THJS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.