If any law enforcement officer, special officer or merchant has probable cause for believing that a person has willfully taken possession of any merchandise with the intention of converting it without paying for it, or has willfully concealed merchandise, and that he can recover the merchandise by detaining the person or taking him into custody, the law enforcement officer, special officer or merchant may, for the purpose of attempting to affect [effect] a recovery of the merchandise, take the person into custody and detain him in a reasonable manner for a reasonable time. Such taking into custody or detention shall not subject the officer or merchant to any criminal or civil liability.
Any law enforcement officer may arrest without warrant any person he has probable cause for believing has committed the crime of shoplifting. Any merchant who causes such an arrest shall not be criminally or civilly liable if he has probable cause for believing the person so arrested has committed the crime of shoplifting.
History: 1953 Comp., § 40A-16-22, enacted by Laws 1965, ch. 5, § 4.
ANNOTATIONSBracketed material. — The bracketed material was inserted by the compiler and is not part of the law.
Severability clauses. — Laws 1965, ch. 5, § 5, provided for the severability of the act if any part or application thereof is held invalid.
Meaning of "probable cause". — A merchant has probable cause to detain a person when the totality of the facts and circumstances within the merchant's knowledge and of which the merchant has reasonably trustworthy information are sufficient to warrant a merchant of reasonable caution to believe that the person is willfully concealing merchandise. Holguin v. Sally Beauty Supply, Inc., 2011-NMCA-100, 150 N.M. 636, 264 P.3d 732, cert. denied, 2011-NMCERT-009, 269 P.3d 903.
Meaning of "willfully concealed". — When merchandise is concealed in the sense that it is not in plain sight, there must also be circumstances which reflect that the purpose of the concealment is adverse to the store owner's right to be paid for the merchandise before a conclusion can be made that the merchandise was "willfully concealed" under Section 30-16-23 NMSA 1978. Holguin v. Sally Beauty Supply, Inc., 2011-NMCA-100, 150 N.M. 636, 264 P.3d 732, cert. denied, 2011-NMCERT-009, 269 P.3d 903.
Statutory presumption. — The factual presumption under Section 30-16-22 NMSA 1978 that allows the finder of fact in a criminal prosecution for shoplifting to infer a specific intent to convert merchandise without paying for it if a person "willfully conceals" merchandise does not apply to the merchant's privilege under Section 30-16-23 NMSA 1978. Holguin v. Sally Beauty Supply, Inc., 2011-NMCA-100, 150 N.M. 636, 264 P.3d 732, cert. denied, 2011-NMCERT-009, 269 P.3d 903.
Summary judgment not justified. — Where plaintiff entered defendant's store with a large conspicuous canvas shopping bag; plaintiff picked up a can of hair mousse, put it in the bag and carried it in the bag to the front counter to ask the cashier a question about it; plaintiff was detained and charged with shoplifting; and in plaintiff's civil suit against defendant for damages, the district court granted summary judgment to defendant based on the court's findings that when the mousse was put inside the bag, the assistant manager had probable cause to believe that plaintiff was shoplifting and that placing the mousse into the bag satisfied the statutory presumption under Section 30-16-22 NMSA 1978 that plaintiff intended to shoplift, the district court erred in granting summary judgment to defendant. Holguin v. Sally Beauty Supply, Inc., 2011-NMCA-100, 150 N.M. 636, 264 P.3d 732, cert. denied, 2011-NMCERT-009, 269 P.3d 903.
No reasonable cause to detain. — In suit for false imprisonment and defamation, where employee of self-service store testified that he saw one of two women plaintiffs who were shopping together remove the sticker from a box of merchandise and put the box in her purse, the women denied placing the box in the purse, and the box, absent its sticker price tag, was found some 15 feet away from its accustomed place after the release of plaintiffs by the police officers who had detained them, the women's denial placed the evidence as to probable or reasonable cause for believing the women were unlawfully taking goods held for sale into conflict, which conflict the trial court, sitting as trier of fact, with ample support, resolved in favor of the women plaintiffs. Stienbaugh v. Payless Drug Store, Inc., 1965-NMSC-033, 75 N.M. 118, 401 P.2d 104.
Defamatory statements in course of investigation. — Even assuming there had existed a privilege in pursuing investigation of supposed shoplifting, whether defamatory statement made by employee in presence of both employees and patrons of the store was made in the exercise of that privilege, was a question for the trier of facts. Stienbaugh v. Payless Drug Store, Inc., 1965-NMSC-033, 75 N.M. 118, 401 P.2d 104.
Am. Jur. 2d, A.L.R. and C.J.S. references. — Defamation: actionability of accusation or imputation of shoplifting, 29 A.L.R.3d 961.
Rules or instructions: admissibility of defendant's rules or instructions for dealing with shoplifters, in action for false imprisonment or malicious prosecution, 31 A.L.R.3d 705.
False imprisonment action: construction and effect of statute providing for detention of suspected shoplifters by merchant or employee, 47 A.L.R.3d 998.
Use of electronic sensing device to detect shoplifting as unconstitutional search and seizure, 10 A.L.R.4th 376.
Liability of storekeeper for injury to customer arising out of pursuit of shoplifter, 14 A.L.R.4th 950.
Excessiveness or inadequacy of compensatory damages for false imprisonment or arrest, 48 A.L.R.4th 165.