Being stopped, detained and searched in the Warehouse

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Ultimate Geek

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#847020 29-Jun-2013 07:20

Dratsab:
Hmm - some good, some bad here. The article you didn't link to is a little out of date in that it says "The police will search an offender's bag upon arrest" - actually police will search your bag (under the Search and Surveillance Act 2012) if they have reasonable grounds to believe (as opposed to justifiable cause) an offence has been committed and the search will locate evidential material in relation to this. Such a search could be by consent (s92) or not (s88).

If someone wishes to serve a trespass notice on you and you refuse to provide your details you're actually on the path to committing an offence under s9 Trespass Act 1980.

BTW - there is no such thing as citizens arrest. It's very much a misnomer and I challenge you to find any reference to it in the Crimes Act. There is only 'arrest'.

Not that I particularly care one way or another - just thought I'd steer things in the right direction.

cheers for the info

a couple of comments....

1. re search - police do, with reasonable grounds - store staff do not

note: and plod needs a good reason too - i have denied a personal search when they did an id check at a pub, i was young, legal - but fair enough re the query - i was polite, gave them my id, when they tried to reach into my pockets i moved away and said no you don't - they stopped as they knew they did not have reasonable grounds

yet every day people give this right away :/

2. tresspass notice - i may be on that "path" - but again without reasonable cause (standing in a shop, telling a muppet to cooperate with police in my view is not reasonable cause, and the boys in blue agreed when they got to the store - muppet pie stealer got trespassed - i did not)

so i ain't worried about jack - and i stand by the fact the STORE cannot serve a notice on a john doe - plod however can move things along - but this was not the case here

for the record - i have family who are lawyers (prosecution and defence) and a brother in law soon to be a boy in blue (well done that man) - and respect them and all that they do - so this ain't about hatin on the MAN - it's about knowing your rights, not giving them away to the police and especially not to other private citizens - and respect both ways

stuzzo

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#847028 29-Jun-2013 08:23

driller2000: BTW - there is no such thing as citizens arrest. It's very much a misnomer and I challenge you to find any reference to it in the Crimes Act.

As I referred to in my post (if you had bothered to read it fully), what is commonly known as a Citizen's Arrest is actually an arrest without warrant in the Crimes Act.

scuwp

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#847035 29-Jun-2013 09:22

Playing devils advocate to the OP you have to feel sorry for the poor shopkeeper who is trying to stop merchandise flying out the door for free. Most stores now have an 'entry policy' something along the lines that by entering the store you are agreeing that any bags etc may be searched before you leave.

I am sure there is a legal argument in there but my lay understanding would be by entering the store you are agreeing to those conditions and are thereby giving them permission to search you. If you don't want to agree to those conditions I guess you are free to go elsewhere.

Kind of like a previous poster who commented about the 'conditions of entry' on concert tickets etc.

Just my 2 cents

Lazy is such an ugly word, I prefer to call it selective participation

Dratsab

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#847044 29-Jun-2013 09:46

ajobbins: is there anything in the law to prevent you being trespassed without reasonable cause?

driller2000: and i stand by the fact the STORE cannot serve a notice on a john doe - plod however can move things along - but this was not the case here

The lawful occupier* of any property (whether that be private or commercial) can serve a trespass notice on anybody on that property, if they so wish, without having to have any reason whatsoever. They are the occupier, the other person is not - that's where it begins, that's where it ends.

Trespass notices can be challenged if they are seen as unreasonable, such as when WCC trespassed a bunch of alcoholics from large parts of the CBD, but otherwise the occupier is free to do as they see fit in this area.

* In the case of a commercial premise such as The Warehouse, the store manager is the lawful occupier and he can delegate his authority to anyone employed at the store, such as other staff members or security guards. In the case of police, they cannot trespass anyone from anywhere without such authority being delegated to them. As has already been raised - none this by any means empowers anyone to unlawfully detain or search anyone.

stuzzo

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Ultimate Geek

#847048 29-Jun-2013 09:55

scuwp: Playing devils advocate to the OP you have to feel sorry for the poor shopkeeper who is trying to stop merchandise flying out the door for free. Most stores now have an 'entry policy' something along the lines that by entering the store you are agreeing that any bags etc may be searched before you leave.

I am sure there is a legal argument in there but my lay understanding would be by entering the store you are agreeing to those conditions and are thereby giving them permission to search you. If you don't want to agree to those conditions I guess you are free to go elsewhere.

Kind of like a previous poster who commented about the 'conditions of entry' on concert tickets etc.

Just my 2 cents

I believe that it would still be illegal for them to search your bags if a sign was up, they could ask you to show the contents but you are within your rights to refuse.

In the case here we don't actually know if a forced search happened. It may just have been that she felt intimidated and just complied in a stressed situation.

It is hard for retailers but there are plenty of methods and strategies to keep control of shoplifting.

driller2000

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Ultimate Geek

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#847073 29-Jun-2013 10:40

to clarify - the trespass notice needs to name a specific individual - if the STORE doesn't have your name ie. "john doe" they cannot serve it, and you are not obliged to provide these details to the STORE - plod may be another story...

that said i do feel bloody sorry for stores in terms of pri*ks who rip them off - just don't you dare treat me or anyone i care about the same as them based on false accusations or some shi*ty profiling approach

gregmcc

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#847074 29-Jun-2013 10:53

scuwp: Playing devils advocate to the OP you have to feel sorry for the poor shopkeeper who is trying to stop merchandise flying out the door for free. Most stores now have an 'entry policy' something along the lines that by entering the store you are agreeing that any bags etc may be searched before you leave.

I am sure there is a legal argument in there but my lay understanding would be by entering the store you are agreeing to those conditions and are thereby giving them permission to search you. If you don't want to agree to those conditions I guess you are free to go elsewhere.

Kind of like a previous poster who commented about the 'conditions of entry' on concert tickets etc.

Just my 2 cents

The store can try to enfore other terms conditions on someone that are not granted by law, but good luck trying to enforce them.

Another good example would be if I taped some terms and conditions to my eftpos card that siad something along the lines of the retailer agrees to provide a full refund after 6 months and by accecpting this card as payment you agree to the conditions.

not really enforcable under law, just like the retailer trying to impose entry terms and conditions.

Personally If a reatiler wanted to stop and search me then I would tell them to naff off and call the police, or make it worth my time to stop and allow the search, nothing found means a $50 voucher?

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kingjj

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#847078 29-Jun-2013 11:45

stuzzo:
scuwp: Playing devils advocate to the OP you have to feel sorry for the poor shopkeeper who is trying to stop merchandise flying out the door for free. Most stores now have an 'entry policy' something along the lines that by entering the store you are agreeing that any bags etc may be searched before you leave.

I am sure there is a legal argument in there but my lay understanding would be by entering the store you are agreeing to those conditions and are thereby giving them permission to search you. If you don't want to agree to those conditions I guess you are free to go elsewhere.

Kind of like a previous poster who commented about the 'conditions of entry' on concert tickets etc.

Just my 2 cents

I believe that it would still be illegal for them to search your bags if a sign was up, they could ask you to show the contents but you are within your rights to refuse.

In the case here we don't actually know if a forced search happened. It may just have been that she felt intimidated and just complied in a stressed situation.

It is hard for retailers but there are plenty of methods and strategies to keep control of shoplifting.

You are correct stuzzo, the store can put up all the signs they like, it doesn't make the action legal. Walking past a sign is not giving implied consent. I worked in retail security for over 6 years (both as a uniformed guard and for the majority as a plain clothes detective). I've done thousands of bag searches but only ever with consent. I've also trespassed people who refused consent (usually we had evidence of previous thefts but none on the day). I've verbally trespassed people whom I did not have names for and then had them confirmed via registered post or by the Police once a name is gained (in a place like Chch, everybody is discoverable eventually). I've even had verbal/physical trespasses prosecuted successfully where no name was known at the time of the trespass.

In the OP's case, his wife could have refused the search and the security staff would not have had grounds to force it. They could have then rightly asked her to leave the store and not come back.
Retailers do have certain rights under Merchants law, what these are I can't specify anymore (I've been out of the game for a while now). Citizens Advice can point you in the right direction.

If the OP feels strongly then talk with store manager, or the Warehouse corporate office. I stuffed a few times up over the years when I did the work (mostly due to lack of knowledge/understanding of relevant laws at the time), and when I did I always took responsibility. 'Random bag searches' are becoming more common in NZ, I don't believe its the action of a bag search which offends most people but the way in which the request and event is carried out by the staff member.

richms

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#847173 29-Jun-2013 16:36

I must look too honest now. But in my yoof I would get asked all the time for a bag search. It was usually just full of text books and stuff so no big deal.

Wonder if I can get away with demanding a NDA be signed before opening my bag ;)

Richard rich.ms

1080p

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#847215 29-Jun-2013 19:01

I think that more people need to know that it is police (with reasonable cause) alone who are legally permitted to detain and enforce a search of your belongings and no one else.

A store is perfectly within its rights to issue a trespass notice for failure to comply but with nothing more to go on than your grainy CCTV image in most cases I wish them the best of luck.

stuzzo

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Ultimate Geek

#847231 29-Jun-2013 20:20

1080p: I think that more people need to know that it is police (with reasonable cause) alone who are legally permitted to detain and enforce a search of your belongings and no one else.

There is a caveat on that though, they can detain (not search) you in some circumstances. Many supermarkets are open after 9pm and from that time on an arrest can be made for any crime under the Crimes Act as it is a crime by night. That would include shoplifting.

They would have to have good grounds to believe a crime had been committed and only use reasonable force.

gumboot19

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#847234 29-Jun-2013 20:49

If you have nothing to be guilty of, what is the issue?
Let's say you come onto my property after being warned and told not to. Worst case is that I may somewhat mistakenly slip and hurt you, then it is your fault.
The Warehouse have a sign at their entry stating that upon entering their premises you agree to all of their terms and conditions, if you don't agree then it is your choice not to enter.
Ever tried arguing this point in Hong-Kong, Singapore or the US???

Dratsab

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#847237 29-Jun-2013 21:04

stuzzo:
1080p: I think that more people need to know that it is police (with reasonable cause) alone who are legally permitted to detain and enforce a search of your belongings and no one else.

There is a caveat on that though, they can detain (not search) you in some circumstances.

Really?

stuzzo

534 posts

Ultimate Geek

#847247 29-Jun-2013 21:30

Dratsab:
stuzzo:
1080p: I think that more people need to know that it is police (with reasonable cause) alone who are legally permitted to detain and enforce a search of your belongings and no one else.

There is a caveat on that though, they can detain (not search) you in some circumstances.

Really?

From Wikipedia regarding NZ:

"Specifically, the Crimes Act 1961 states that everyone (not just New Zealand citizens) is justified in arresting without warrant:[25]

Any person found committing any offence against this Act which the maximum punishment is not less than 3 years' imprisonment; or
Any person found at night (9pm till 6am) committing any offence against this Act."

I did work in the security industry for 21 years so had a reasonable knowledge of this.

freitasm

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#847265 29-Jun-2013 22:19

gumboot19: Let's say you come onto my property after being warned and told not to. Worst case is that I may somewhat mistakenly slip and hurt you, then it is your fault.

"Mistakenly slip and hurt" sounds suspiciously like intentionally hurting someone.

gumboot19: The Warehouse have a sign at their entry stating that upon entering their premises you agree to all of their terms and conditions, if you don't agree then it is your choice not to enter.

Read the discussion. It's already clear that those signs don't change anything.

gumboot19: Ever tried arguing this point in Hong-Kong, Singapore or the US???

Not relevant to this discussion.

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