Apprehending a customer in a retail environment can be a dangerous experience but generally proceeds smoothly. Apprehending a staff member, sales representative or delivery driver, on the other hand, rarely turns violent. Both require that you have knowledge of your legal rights and obligations and the rights and obligations of the suspect, though.
The law (Criminal Code of Canada) is clear on who can make an arrest and what the process involves. Criminal law is less clear on the process when you merely are apprehending a person without arresting them. (See Legal Issues section.)
An important consideration is that any person, other than a peace officer, who makes a legal arrest must forthwith (immediately) turn that person over to the police. There is no grey area here. If you arrest, you must charge. That is why you will, in most cases, be apprehending someone without arresting them, and that dictates a whole new set of rules and guidelines.
Apprehending someone allows you to release them once the process of documentation, caution and recovery of possessions is completed.
Of course, if both you and the suspect agree that the arrest is no longer necessary, you can release that person without summoning the police, but it must be made clear to the suspect that they acknowledge they have agreed to the release (few will challenge that privilege).
An arrest, though, is important if you feel that the suspect will flee or if you feel that your safety is jeopardized.
A simple caution suffices when a private citizen makes an arrest, while police or a peace officer must read the suspect their rights as soon as it is reasonably appropriate to do so.
I approach with, “Excuse me (Mme, Sir, etc.), you’re under arrest.
At that point, I may touch, stop or impede the progress of the person.
A colleague of mine, who seemed to fail to understand all the requirements of his position as an investigator, often would grab the person’s shoulder from behind, before saying anything. This almost always could be construed as an assault and almost definitely gives the suspect an excuse to react violently or flee, by claiming they felt themselves in danger.
You need to position yourself properly when making a stop. This minimizes physical risk to yourself while also minimizing the suspect’s escape routes. I place myself in front and slightly to the side of the person, when possible. If I am arresting a retail shoplifter, I try to do so once they have left the store, although this is not a requirement in law. To do so, I also try to be already outside as the suspect leaves the store. A suspect is less likely to expect an arrest by someone who is not coming at them from behind in the store and they often look back, not forward, as they depart.
By being in front, I can also read facial expressions or body movement that may reveal they want to run or to resist.
The essence of that interception of the suspect is to minimize risk. However, there also is a risk to nearby customers and you should plan your stop to mitigate against that possibility.
Sometimes, a semi-professional shoplifter will have an accomplice or more waiting outside to transport them. Be aware of that potential, too.
On one arrest, five gang members entered a store, then split up. Their intent was clear: steal big. Ass they split up I approached each, forcefully telling them to leave. Although a couple were verbally aggressive, three did so. That left two in, those three outside, and whoever else was with them (it turned out there were two more in the vehicle). My odds with two were much better than with five.
I still had a problem: five gang members awaiting me outside the store. I chose to make my arrests in the building, which I am entitled to do. I arrested the first one as they approached the exit, advising him loudly that he was under arrest. The second heard me and doubled back into the store aisles. I yelled to him, “Dump the s..t and get out.”
The two still would have been a serious physical challenge, but I had surprised them, and they suddenly realized the rest of the team was outside. The second dumped the goods as I manhandled the first down the same aisle, then slipped into the next aisle and out. I called to the cashier to lock the doors. This was a security drill I had provided for the store. She did, and that kept the six outside from returning.
Because the doors now were locked, I returned to the safe interior side of the doors and yelled to the six that they should stay there and wait for the police. I knew they would not, and that was my intent. I had the store’s merchandise: priority one. I had arrested one of the two who actually had stolen: priority two. I had kept the store and staff safe: priority three.
Sometimes, creativity is essential.
The Legal Issues section explains where you can make an arrest, and it has nothing to do with “leaving the store.”
I knew precisely what my remaining thief had taken, because it was only one item. Rather, it was twenty items of one kind: 20 boxes of cough medicine: the kind used as raw materials for making street drugs. I also knew where it was, because I had seen him conceal it in his jacket. That, too, stood out, because it was summer and hot. Why was he wearing a jacket?
That piece of information helped to establish the intent to steal: a jacket in 30C weather, stuff for which he did not have the money to pay and stuff that would not be relevant given the unlikely possibility that he had a serious cold. I didn’t need for him to leave the store to arrest him.
When you make an apprehension, it is vital that you know where the items are concealed and what they are. You cannot speculate. You also cannot search someone without their permission unless you feel your physical safety is under immediate threat (a weapon concealed). That means if you don’t know where the goods are, you cannot go on a fishing expedition. The police must be summoned if the suspect refuses to voluntarily give up the stolen goods and have his person or belongings searched.
That is only half of the reason why maintaining continuity of surveillance is vital prior to making an apprehension. The other is that the suspect could easily discard goods when you lose sight of them, and if you falsely accuse them of theft, you will be at risk of a lawsuit, personally and through the business.
The colleague that I spoke about earlier that routinely mishandled arrests also had several incidents where the person he arrested had dumped the goods without him observing it. Several times, those people had no intention of stealing, yet Phil had publicly exposed them as probable thieves. He was fortunate that no one, in his brief investigative career, sued him or his employer.
Many times, you may come across a shoplifter who already has concealed some items before you observe them stealing. If that shoplifter does not agree to a search, summon the police. They will search for you.
Employee and supplier theft apprehensions present a different set of circumstances from shoplifters, requiring a different protocol.
When apprehending an employee, supplier or delivery driver, you rarely need to arrest them. The approach, therefore, needs to be gentler and more cooperative, indicating to the suspect that “we have a bit of a problem here,” and requesting that they return with you to the interview area. Only if they decline will you need to be more forceful, telling them that, if they choose to be uncooperative, you will have to involve the authorities.
Even the interview process should offer a more low-key approach.
If the apprehension involves only one active incident of actual theft and there is no track record of prior problems, you will respond to that theft incident in a similar manner to a shoplifter, other than the actual approach.
Very frequently, people who have stolen will attempt to discard the items they have taken while being returned to the office. For this reason, I walk slightly to the rear and side of the suspect, to observe their hands. You know where the item is concealed, so you focus on the hand movement associated with the theft. But you also want to be alert for someone potentially reaching for a weapon.
Such provocative movements may give you a valid reason for a full search before arrest, since you have the right to search if you feel your safety is jeopardized.
As you return to the holding area where you will conduct your exit interview, watch for sudden tensing or movements that indicate the suspect might flee. It is somewhat more difficult to suddenly restrain someone by the shoulder, collar or even arm than it is to be prepared to trip them up, so learn how to affect a tripping action if the suspect begins to run.
Returning to the actual moments prior to an apprehension, retail businesses often offer the investigator an advantage over the shoplifter: windows. Free standing retailers usually have windows at the front of the store that allow you to watch the last moments prior to a customer leaving the store. This enables you to move outside of the outlet in anticipation of the shoplifter leaving, permitting you to be in front of them to make an arrest as they depart.
Even more valuable is the use of in-store cameras. Install cameras that have Wi-Fi or Bluetooth capabilities over checkouts and at the actual exits. You then are able to monitor the suspect’s last moments in the store on your cell phone from outside the store.
Both techniques are unexpected by shoplifters. Most people, when they are shopping or moving about, rarely look beyond the window of a structure, even though they clearly could see outside if they focused. Partly, it is because a person under stress of possible arrest is hyper-focused on the danger of arrest within the store, rather than the freedom beyond. With Wi-Fi and cell phone monitoring, a peron on a cell phone is so common that it draws no attention to the possibility that what the person is observing on the phone is the shoplifter.
Once you are awaiting the suspects outside, be aware of the risks posed by and to other customers, bystanders or even the suspect’s accomplices. Watch your back and have backup available where you feel it is necessary. People often get desperate when confronted and even little old ladies can resist vigorously. This poses another risk: intervention by well-meaning observers or bystanders. Your backup person can help diffuse such situations.
A couple of final points on apprehending employees: Be discrete but also make the apprehension on company time so that, if the employee flees, they can still be dismissed for cause because they have left the job site without authorization. You can remind them that they are on company time, until the interview is concluded.