It has been a long day, the last two hours of which you spent angling for a parking spot, hustling through the grocery store for necessities, waiting in line to check out, then hustling toward the door to load everything into your car and hustle home. Then you see it—another line at the exit, where one-by-one shoppers are showing their receipt and verifying that the contents of their cart comport with the receipt. You cannot take one more delay and as you stand in line, you begin to wonder: “What if I refuse to show my receipt? What if I nonchalantly walk out the door, pretending as if I didn’t hear, or simply don’t care? Will lights and sirens sound as a snarling police hound holds me at bay while I am ‘cuffed and taken into custody? What will happen to my ice cream in the meantime?” Ultimately, you decide against the drama scene unfolding in your imagination and meekly hand over your receipt for inspection, then walk to your car.
Still, questions remain, niggling in the back of your mind: Is the store allowed to detain me like this, and can I refuse to show my receipt?
Can They Do This To Me?
The answer to the first question, essentially, is yes, a store can request to see your receipt and stores increasingly are doing so as a means of loss prevention due to shrinkage, a.k.a. shoplifting. (Note, this article relates to stores open to the general public, not to membership stores like Costco, Sam’s Club, and the like, where producing a receipt usually is required as part of your membership agreement.)
Both Virginia and Maryland have “Shopkeeper’s Privilege” laws that govern what a shopkeeper may do when stopping and searching customers. While the Virginia and Maryland provisions are distinct from one another, both provide shopkeepers with a defense against claims of false imprisonment when a shopkeeper detains a suspected shoplifter, if done according to the statute.
Virginia’s Shopkeeper’s Privilege law, being the more restrictive of the two, is governed by Va. Code Ann., §18.2-105.1, Detention of Suspected Shoplifter, and states:
A merchant, agent or employee of the merchant, who has probable cause to believe that a person has shoplifted in violation of [Virginia’s theft statutes], on the premises of the merchant, may detain such person for a period not to exceed one hour pending arrival of a law enforcement officer.
Maryland’s Shopkeeper’s Privilege law, slightly broader than Virginia’s, is governed by Md. Code Ann., Courts and Judicial Proceedings, §5-402(a), which states:
A merchant or an agent or employee of the merchant who detains or causes the arrest of any person shall not be held civilly liable for detention, slander, malicious prosecution, false imprisonment, or false arrest of the person detained or arrested, whether the detention or arrest takes place by the merchant or by his agent or employee, if in detaining or in causing the arrest of the person, the merchant or the agent or employee of the merchant had, at the time of the detention or arrest, probable cause to believe that the person committed the crime of "theft," as prohibited by [Maryland’s theft statute], of property of the merchant from the premises of the merchant.
Both laws allow a shopkeeper to detain shoppers based on suspicion, even if that suspicion ends up being wrong. In Virginia, the shopkeeper is limited to acting upon probable cause for the sole purpose of waiting for law enforcement to arrive, and for a period not to exceed one hour. In Maryland, however, the shopkeeper must also act upon probable cause and may detain the suspected shoplifter for a reasonable amount of time and for a reasonable reason.
Is Not Showing My Receipt Enough Probable Cause To Detain Me?
The answer to this second question is a solid …maybe. Probable cause might be clearer where a security device sets off an alarm upon exiting the store, or the thief is seen concealing or taking items. But the question whether mere refusal to show your receipt creates sufficient probable cause for a shopkeeper to detain you is a more uncertain situation.
In Virginia, probable cause has been defined as “knowledge of such facts and circumstances as excite the belief in a reasonable mind, acting on such facts and circumstances, that the plaintiff is guilty” of theft. Dill v. Kroger, 300 Va. 99 (2021) (quoting Lewis v. Kai, 281 Va. 715 (2011), at 723). It is a “'flexible, common-sense standard'—one that does not 'demand any showing that such a belief be correct or more likely true than false.'” Slayton v. Commonwealth, 41 Va. App. 101, 106, 582 S.E.2d 448 (2003) (quoting Texas v. Brown, 460 U.S. 730, 742, 103 S. Ct. 1535, 75 L. Ed. 2d 502 (1983)).
Similarly, in Maryland, “[t]he rule of probable cause is a nontechnical conception, requiring less evidence for such belief than would justify conviction, but more evidence than that which would arouse a mere suspicion.” Kimbrough v. Giant Food, Inc., 26 Md. App. 640 (1975) at 647. And “mere belief, however sincere, is not sufficient. There must be such grounds of belief founded upon actual knowledge of facts as would influence the mind of a reasonable person.” Kimbrough, at 647. Probable cause is measured by the circumstances as they existed at the time of detention. Montgomery Ward & Co. v. Keulemans, 275 Md. 411, at 448.
It is notable that both Virginia and Maryland prohibit the use of unreasonable force when shopkeepers detain a suspected shoplifter, and both states permit only a police officer to arrest a suspect. So, even a shopkeeper who has probable cause for detention must find a way to keep the suspect on the premises without unreasonable force.
There is no definitive case law specifically relating to refusal to produce a receipt for purchases; however, a very recent unpublished decision in Virginia acknowledges that the mere asking for a receipt is not detention or false imprisonment, as no force can be applied to keep a shopper on the premises if he fails to produce a receipt. In Henderson, et al. v. Wal-Mart Stores, Inc., U.S. Court of Appeals for the Fourth Circuit, No. 21-2417 (January 12, 2023), the Court acknowledged that the scope of the [Virginia] Shopkeeper’s Privilege exception is very broad and is given an “expansive rather than restrictive scope.” Henderson, at 10. The Court dismissed Henderson’s case based on failure to state a claim, but analyzed the situation as “even if” Henderson had properly plead, the Court determined that where Henderson admitted he neither produced a receipt when asked, nor made any attempt to produce one, his “failure to produce a receipt for items he was attempting to carry out of the store constitutes probable cause, and any ‘ordinarily prudent person’ would have sought to prevent a cart of potentially stolen goods from leaving the store.” Henderson, at 10. In this situation, “the store employees had probable cause to believe [Henderson] had shoplifted and …the employees acted as ordinarily prudent people would have acted under the circumstances.” Henderson, at 10.
While Henderson is an unpublished opinion, it is notable for recognizing that probable cause exists when a shopkeeper detains a shopper who refuses to produce a receipt upon request. This case did not address the level of force a shopkeeper is allowed to use to detain a suspected thief on the premises; and, although it is possible that refusal to show a receipt for purchases, coupled with additional facts, could constitute probable cause for a shopkeeper to detain a shopper, given the shopkeeper’s limited ability to physically detain a shoplifter, the shopkeeper might be left with little more than persuasion, ultimately allowing a recalcitrant receipt-bearer to pass inspection.