My question involves criminal law for the state of: Wisconsin
My 13 yr old son was caught shoplifting last evening. I am not in any way excusing his behavior. What I am questioning is what happened after he was caught. I found out he was detained only because I called my son asking why he wasn't home yet. When I arrived at the store, I called asking to be allowed in as the store had closed for the evening. I was told to "wait" by the manager - she was "doing paperwork". The police had not yet been called. I was not allowed inside to see my son until the police had arrived - even though it was past 11:00 curfew. In the meantime, the manager had interviewed and searched my son - all while I was there but not allowed inside. Was it legal for her to search and interview my son without either police or parent present? I'm somewhat okay with him being interviewed and searched by police without me present, but very not okay with this going on without a parent or the authorities present.
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12-11-2010, 05:53 PMunhappymomofsonCan a Minor Be Interviewed and Searched Without Police or Parent
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12-11-2010, 07:22 PMsemblanceRe: Can a Minor Be Interviewed and Searched Without Police or Parent
There are various levels to the "search" process and it is not clear from your post exactly what was done.
Just about everywhere, a "pat down" search for weapons is justified on the grounds of safety. This is far less intrusive than what the federal transportation authorities have been doing at airports, which you have probably heard about. It is a quick frisk to see if somebody has a gun, knife, or other obvious weapon. It is not an intrusive search of the person, looking for any item that might possibly have been stolen. Generally, it is to be done by someone of the same sex as the suspect, although that is not necessarily required if no one of the same sex is immediately available. If that was all that was done, I do not see a problem with that, subject to the issue of whether a male did the search or, if not, the manager did it because a male was not immediately available.
Search of bags, such as shopping bags or a backpack is generally okay in most jurisdictions.
A full intrusive search of a person is allowed in some states, but not others. I do not know the rule on this in Wisconsin as I am not licensed to practice there. My general impression is that most stores will not do a full intrusive search of a suspect but will wait for the police to do that.
Generally, interrogation is allowed of a suspect, even a minor suspect, whether or not a parent is present. Continuing interrogation after you arrived and wanted access to your son is another matter.
What I have the most problem with is that you arrived on the scene and the store kept you separated from your son. Although reasonable force to detain a suspect is generally legal just about everywhere, the purpose of detention must generally be to determine whether a crime was committed, to recover merchandise, to identify the suspect, or to hold the suspect for police. Preventing a parent from having access to her son is not generally a legitimate action by a store even when holding a suspect. If they had let you in to see your son and you had tried to take him away before the police arrived, that would have been a different matter, but that did not happen here. Although some judges and other lawyers might disagree with me, there may be grounds here for an action for false imprisonment and/or intentional infliction of emotional distress. I recommend you consult a Wisconsin lawyer to discuss this. I am not saying that you should file a lawsuit or that it would be economically worthwhile to do so, but I do think the store exceeded the bounds of generally authorized conduct in detaining shopifters. I do not say this lightly. Generally, I try to help persons charged with shoplifting at sites ike this, but i rarely find much in the way of problems with the detention process. This is an exception. -
12-11-2010, 08:00 PMMr. KnowitallRe: Can a Minor Be Interviewed and Searched Without Police or Parent
The shoplifting statute creates immunity for shopkeepers under certain circumstances:
As I see it that first provision can be read in two ways: The first, which I think is the proper way, is that a merchant can choose whether or not to prosecute a minor and if he chooses to do so may detain a minor "for a reasonable length of time to deliver the [minor] to a peace officer or, if not, can contact the minor's parents and hold the minor for a reasonable time until he can be delivered to his parents. A strained reading of the statute would be that the merchant can only detain a minor until it's possible to turn the minor over to the police or a parent or guardian; I'm skeptical that a court would accept such an interpretation, but you and your lawyer can check the case law and consider trying to convince a judge to uphold such an interpretation.Quote:
Quoting Wisconsin Statutes, Sec. 943.50 Retail theft.
If your son had his phone and was able to make and receive calls, it can't be argued that he was denied access to a phone. If the police weren't summoned within a reasonable amount of time, you may be able to argue that the duration of the detention was unreasonable such that immunity should not apply. If your son consented to the search, he consented to the search. If the store was closed when you arrived, it's not a big surprise that you spent some time waiting outside.
Keep in mind that if you do try to bring a claim, you would have to prove damages. How much time are you alleging passed between when your son was caught shoplifting and when the police were called? Is it possible that the store will argue that they had planned to release him to you, but that your conduct at the store convinced them that they should instead summon the police? (Don't take offense at that question - you would be shocked at how some parents behave under this type of circumstance, ranging from explosive anger at store employees to threatening to beat their child right then and there.) -
12-11-2010, 08:17 PMsemblanceRe: Can a Minor Be Interviewed and Searched Without Police or Parent
The way I read the OP's post, she got there and the store would not let her have access to her son. Based on 30 years experience in the practice of law, my opinion is that the store's conduct in refusing to allow the mother access to her son can be justified by any reasonable interpretation of the immunity statute you quoted.
Damages are, of course, an entirely different matter and I do not suggest that filing a lawsuit should necessarily be done. It does appear that the store exceeded the bounds and she should consult a local attorney. -
12-11-2010, 09:21 PMMr. KnowitallRe: Can a Minor Be Interviewed and Searched Without Police or Parent
What language in the statute are you looking at, that would in any way affect the store's immunity if it doesn't let a parent see a minor while they're waiting for the police to arrive? Because if it's not in the statute, it's not in the statute. And that's before we again revisit the fact that the store was closed when mom arrived.
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12-11-2010, 10:13 PMsemblanceRe: Can a Minor Be Interviewed and Searched Without Police or Parent
The statute allows holding a suspect for the police or for delivery to the parent. Under the facts stated by the OP, she called her son and found out he had been detained for shoplifting, then travelled to the store. She specifically states that the police had not been called yet. Despite this, the store would not let her have access to her son. Assuming that these facts are true, detention cannot be justified based on holding for the police because, as she says, "The police had not yet been called." Detention can only be for a reasonable time. The store had a long time to call the police, but delayed doing so until the mother arrived. This cannot be justified. The inference which arises from the facts is that the store was holding the boy for the purpose of interrogating him, which the statute does not justify, then decided to call the police later.
Aside from that fact, nothing in the statute allows the store the right to interfere with the mother's right to have access to the son. As a custodial parent, she has an absoute right to have access to him. Whether or not the store was closed to the public or not is irrelevant. She did not come to the store as a member of the public. Nothing in the statute or the common law allows the store to deny her access to her son. If she had tried to leave with him while the store was waiting for the police to come, that would have perhaps been different, but those facts are not in the post.
Stores have extraordinary powers to detain private persons but they are not unlimited. I rarely see stores bungle a detention this badly. Assuming, as always, that the OP has the facts right, the store needs to have a thorough loss prevention procedures review. A letter from the mother's lawyer might prompt that, even if litigation is not filed. The boy may need to be taught a lesson but so does the store. -
12-11-2010, 10:34 PMjkRe: Can a Minor Be Interviewed and Searched Without Police or Parent
how does the mother know the police were not called yet? How does the mother know the child was not searched until she was there? If she was outside the store, she would not be aware of the actions inside and unless the store personnel told the child his mother was there, he could not be able to make that determination either.
the only time given is 11:00 so how does one determine it has been an unreasonable time? There is no ability to determine any sense of reasonable without some time references. While semblance make the claim:
there is nothing to remotely suggest how much time had passed before calling the police and there is nothing other than the mothers statement that the police were not called until she had arrived at the store. She gives nothing showing that claim is true. There is no claim of how she was made aware of that fact at all. For all anybody knows, it is merely her belief being expressed.Quote:
The store had a long time to call the police, but delayed doing so until the mother arrived.
I see nothing that would require the parent be allowed access to her child. All I see is the store has a right to detain the child for a reasonable length of time while waiting to deliver them to the police or a parent.
What I do see is the store had no right to search or interrogate the child without the child's permission but must turn them over to the police for those actions. While an argument might be made that if the child did not expressly deny permission to be searched by the store and answering any questions asked is tacit permission, I would wonder if the courts would view a minor as actually being able to grant such permission, or how little urging on the stores behalf it would require before it wasn't considered consensual. -
12-12-2010, 05:19 AMBORRe: Can a Minor Be Interviewed and Searched Without Police or ParentQuote:
Quoting semblance
You are of course outlining a Terry Frisk as police use, how is that relevant in a mercantile detainment setting where the statute forbids a search as below:
......The detained person must be promptly informed of the purpose for the detention and be permitted to make phone calls, but he or she shall not be interrogated or searched against his or her will before the arrival of a peace officer.....
Say in a state that does NOT permit a search, like mine, Ohio, or as above, you mean it is permissable to still frisk for weapons?? -
12-12-2010, 09:37 AMsemblanceRe: Can a Minor Be Interviewed and Searched Without Police or Parent
jk
My purpose here is not to make a credibility judgment of the OP. I take the OP's statement at face value, which is the only practical thing to do at a site like this. She could easily have a basis for her statement that the police had not yet been called by the time of her arrival. She might have asked and the manager or someone else may have said that to her. In a real lawsuit, of course, there would be means for discovery and the time on the police log for the call would clarify that issue.
If the OP's statement about the timing of the call to the police is accurate (and I have no basis for saying that it is not), there is plenty of evidence that a considerable time lapsed between the detention and the time when the store finally called the police. The mother only found out about the detention by calling her son, looking for him when he did not come home. She probably had to get in her car to go to the store. She then had to drive to the store. Park in the parking lot. Walk up to the store. At minimum this is probably something like a half hour, possibly much longer. In a trial, a plaintiff's lawyer would have a field day building the scenario that the store intentionally delayed calling the police so that it could conduct an interrogation and search first. That is not justified under the statute. To protect itself from this kind of criticism all the store had to do is pick up the phone as soon as it had custodial control of the child in the store's office. Not to do that was unbearably stupid and opens the store up to a lawsuit. (Again, whether that is economically justified is another issue.)
It does not matter whether you "see nothing that would require the parent to be allowed access to her child." Rather, the issue is whether the store had any right to prohibit the mother from going to the side of her son. Access to the child is a fundamental aspect of being a custodial parent. That right can only be interfered with if some other overriding legal consideration authorizes someone to keep the child sequestered from his mother. The statute does not authorize the store to keep the parent away from the son. Again, the store was stupid as it did not need to take the risk of exposing itself in this way. All it had to do was allow the mother into the office. -
12-12-2010, 10:42 AMjkRe: Can a Minor Be Interviewed and Searched Without Police or ParentI understand that but so very often, claims such as that are made simply out of not being aware of what has actually taken place. Just looking for a bit of clarification. A lot of what s happening is concerning time related issues so a blank statement without some time reference can make what is a reasonable situation look quite bad, or vice versa.Quote:
=semblance;477999]jk
My purpose here is not to make a credibility judgment of the OP. I take the OP's statement at face value, which is the only practical thing to do at a site like this. She could easily have a basis for her statement that the police had not yet been called by the time of her arrival. She might have asked and the manager or someone else may have said that to her.
.yet she says all this happened by 11. Just what time did the store close? What time did she contact the child? When was the child even apprehended? With no time references, claiming some period of time is unreasonable is an unreasonable assumption.Quote:
]If the OP's statement about the timing of the call to the police is accurate (and I have no basis for saying that it is not), there is plenty of evidence that a considerable time lapsed between the detention and the time when the store finally called the police. The mother only found out about the detention by calling her son, looking for him when he did not come home. She probably had to get in her car to go to the store. She then had to drive to the store. Park in the parking lot. Walk up to the store. At minimum this is probably something like a half hour, possibly much longer
and notice I specifically suggested the interrogation may not have been legit, regardless of the timing.Quote:
In a trial, a plaintiff's lawyer would have a field day building the scenario that the store intentionally delayed calling the police so that it could conduct an interrogation and search first.
yet, if the kid was belligerent (for arguments sake) and refused to provide his name, age, or some contact for his parents, they did not search (so no phone was found), they interrogated minimally with the intent of not escalating this to requiring the police actually be contacted, and finally when the mother called the child, she was requested to come to the store.Quote:
To protect itself from this kind of criticism all the store had to do is pick up the phone as soon as it had custodial control of the child in the store's office. Not to do that was unbearably stupid and opens the store up to a lawsuit. (Again, whether that is economically justified is another issue.)
While you can view it the way you do, my scenario is just as plausible given the facts. In my scenario the store did little, if anything, improperly.
Please point out some support that requires a victim of a crime that is holding the criminal for the police they allow a parent to attend to a minor child. You can claim all you want that a child has a right to have their hand held by a parent but once a person commits a crime, the rules are very different. I'll wait for some case law or statutory support for your claim.Quote:
It does not matter whether you "see nothing that would require the parent to be allowed access to her child." Rather, the issue is whether the store had any right to prohibit the mother from going to the side of her son. Access to the child is a fundamental aspect of being a custodial parent. That right can only be interfered with if some other overriding legal consideration authorizes someone to keep the child sequestered from his mother. The statute does not authorize the store to keep the parent away from the son. Again, the store was stupid as it did not need to take the risk of exposing itself in this way. All it had to do was allow the mother into the office.