Ark. Code Ann. § 5-36-116 (2026)
Shoplifting presumption — Detention and arrest of person under shoplifting presumption
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- The knowing concealment by a person on his or her own person or on the person of another of an unpurchased tangible personal property offered for sale by a store or business establishment gives rise to a presumption that the person took the tangible personal property with the purpose of depriving the owner of the store or business establishment or another person having an interest in the tangible personal property.
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- A person engaging in conduct giving rise to the presumption under subdivision (a)(1) of this section may be detained in a reasonable manner and for a reasonable length of time by a law enforcement officer, owner of the store or business establishment, or employee or agent of the store or business establishment in order to ensure the recovery of the tangible personal property.
- The detention by a law enforcement officer, owner of the store or business establishment, or employee or agent of the store or business establishment does not render the law enforcement officer, owner of the store or business establishment, or employee or agent of the store or business establishment criminally or civilly liable for false arrest, false imprisonment, or unlawful detention.
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- If sufficient notice has been posted to advise patrons that an antishoplifting or inventory control device is being utilized, the activation of an antishoplifting or inventory control device as a result of a person's exiting a store or business establishment or a protected area within the store or business establishment constitutes reasonable cause for the detention of the person so exiting by a law enforcement officer, the owner of the store or business establishment, or by an agent or employee of the owner.
- Any detention under subdivision (b)(1) of this section shall be made only in a reasonable manner and only for a reasonable period of time sufficient for any inquiry into the circumstances surrounding the activation of the antishoplifting or inventory control device or for the recovery of the tangible personal property offered for sale.
- A detention under subdivision (b)(1) of this section by a law enforcement officer, owner of the store or business establishment, or employee or agent of the store or business establishment does not render the law enforcement officer, owner of the store or business establishment, or employee or agent of the store or business establishment criminally or civilly liable for false arrest, false imprisonment, or unlawful detention.
- A law enforcement officer, owner of the store or business establishment, or employee or agent of the store or business establishment who observed the person engaging in conduct giving rise to the presumption under subdivision (a)(1) of this section shall provide a written statement that serves as probable cause to justify an arrest if a law enforcement officer arrests the person for theft of property, § 5-36-103.
History. Acts 1957, No. 50, § 4; 1971, No. 164, § 1; 1975, No. 458, § 1; 1975, No. 928, § 15; 1983, No. 551, § 1; 1985, No. 404, § 1; A.S.A. 1947, § 41-2251; Acts 2005, No. 1994, § 246; 2015, No. 1263, § 3.
Amendments. The 2015 amendment rewrote the section heading and the section.
Case Notes
Purpose.
Purpose of this section is to create a presumption that concealment on the person is prima facie evidence of willful concealment. Safeway Stores, Inc. v. Gross, 240 Ark. 206, 398 S.W.2d 669 (1966).
Detention.
Although plaintiff was detained pursuant to subsection (a) of this section, there was insufficient evidence to show the detention or imprisonment requirement of the tort of false arrest. Limited Stores, Inc. v. Wilson-Robinson, 317 Ark. 80, 876 S.W.2d 248 (1994).
Defendant was observed by a store manager stuffing merchandise down his pants, then leaving the store, and this gave rise to a reasonable suspicion on which the officer could detain defendant under Ark. R. Crim. P. 3.1, and also gave rise to the statutory shoplifting presumption; the officer testified that he detained defendant until after the store manager completed an affidavit and did not search him until afterwards, and the detention was proper under the statute. Wells v. State, 2017 Ark. App. 174, 518 S.W.3d 106 (2017) (decided under former version of statute).
Instructions.
Instruction that the finding of unpurchased goods or merchandise willfully concealed upon the person or among the belongings of such person shall be prima facie evidence of concealment held reversible error. Safeway Stores, Inc. v. Gross, 240 Ark. 206, 398 S.W.2d 669 (1966).
Where the challenged instruction merely set out the law applicable to the issue of false arrest, and where the instruction did not advise the jury that any presumption had been established by the evidence adduced at trial, but to the contrary, advised the jury that if they found the facts to meet the requisites for the statutory presumption, then their verdict should be for defendant, the instruction given was not erroneous. Dawson v. Pay Less Shoes #904 Co., 269 Ark. 23, 598 S.W.2d 83 (1980).
Presumption.
The statutory presumption is not essential to a conviction on a charge of shoplifting, if the evidence is otherwise sufficient, i.e., if intent to deprive the owner of the property involved is shown by evidence from which that intent may be inferred. Smith v. State, 264 Ark. 874, 575 S.W.2d 677 (1979) (decided under former statute).
The statutory presumption would justify the submission of the question of intent only if a reasonable juror on the evidence as a whole, including the evidence of basic facts, could find the requisite intent beyond a reasonable doubt. Smith v. State, 264 Ark. 874, 575 S.W.2d 677 (1979) (decided under former statute).
Where the evidence showed that unpurchased goods were in sight at all times, the plaintiff did not have to overcome the statutory presumption that larcenous intent can be presumed where unpurchased goods are concealed on the person. Wal-Mart Stores, Inc. v. Yarbrough, 284 Ark. 345, 681 S.W.2d 359 (1984) (decided under former statute).
Evidence held sufficient to give rise to the necessary statutory presumption. Phillips v. State, 17 Ark. App. 86, 703 S.W.2d 471 (1986) (decided under former statute).
The statutory presumption does not establish probable cause as a matter of law in a malicious prosecution proceeding. Wal-Mart Stores, Inc. v. Williams, 71 Ark. App. 211, 29 S.W.3d 754 (2000) (decided under former statute).
Cited: Kroger Co. v. Standard, 283 Ark. 44, 670 S.W.2d 803 (1984); Mendenhall v. Skaggs Cos., 285 Ark. 236, 685 S.W.2d 805 (1985); Phillips v. State, 17 Ark. App. 86, 703 S.W.2d 471 (1986); Murray v. Wal-Mart, Inc., 874 F.2d 555 (8th Cir. 1989).