Tennessee Code Annotated
Tenn. Code Ann. § 40-7-116 (2024)
Theft - Detention of suspect by merchant or peace officer
✓ Justia copy: laws through about 2024 (2025 and 2026 sessions missing)
- (a) A merchant, a merchant's employee, or agent or a peace officer who has probable cause to believe that a person has committed or is attempting to commit the offense of theft, as defined in § 39-14-103, may detain that person on or off the premises of the mercantile establishment if the detention is done for any or all of the following purposes:
- (1) To question the person, investigate the surrounding circumstances, obtain a statement, or any combination thereof;
- (2) To request or verify identification, or both;
- (3) To inform a peace officer of the detention of that person, or surrender that person to the custody of a peace officer, or both;
- (4) To inform a peace officer, the parent or parents, guardian or other private person interested in the welfare of a minor of the detention and to surrender the minor to the custody of that person; or
- (5) To institute criminal proceedings against the person.
- (b) Probable cause to suspect that a person has committed or is attempting to commit the offense of theft may be based on, but not limited to:
- (1) Personal observation, including observation via closed circuit television or other visual device;
- (2) Report of personal observation from another merchant;
- (3) Activation of an electronic or other type of mechanical device designed to detect theft; or
- (4) Personal observation of dressing rooms, including observation via closed circuit television, two-way mirrors, or other visual devices, shall be limited to observation by a person of the same sex as the person being observed. No observation shall be lawful unless notices are posted in the dressing rooms that monitoring may occur.
- (c) A merchant, a merchant's employee or agent, or a peace officer who detains, questions or causes the arrest of any person suspected of theft shall not be criminally or civilly liable for any legal action relating to the detention, questioning or arrest if the merchant, merchant's employee or agent, or peace officer:
- (1) Has reasonable grounds to suspect that the person has committed or is attempting to commit theft;
- (2) Acts in a reasonable manner under the circumstances; and
- (3) Detains the suspected person for a reasonable period of time.
- (d) The merchant may use a reasonable amount of force necessary to protect the merchant, to prevent escape of the person detained, or to prevent the loss or destruction of property.
- (e) A "reasonable period of time", for the purposes of this section, is a period of time long enough to accomplish the purpose set forth in this section, and shall include any time spent awaiting the arrival of a law enforcement officer or the parents or guardian of a juvenile suspect, if the merchant or the merchant's employee or agent has summoned a law enforcement officer, the parents or a guardian.
Acts 1957, ch. 164, §§ 1, 3; T.C.A., §§ 40-824, 40-826; Acts 1983, ch. 326, § 2; 1990, ch. 1030, § 17.
Notes of Decisions
Cited in 7
cases, 1987–2019 · leading case: Brown v. SCOA Indus., Inc., 741 S.W.2d 916 (Tenn. Ct. App. 1987).
Brown v. SCOA Indus., Inc., 741 S.W.2d 916 (Tenn. Ct. App. 1987). “§ 40-7-116(c) provides merchants who accuse someone of shoplifting with a complete defense against a malicious prosecution or false imprisonment claim if the merchant establishes that: (1) it had probable cause, (2) it acted “in a reasonable manner under all the circumstances,”…”
United States v. Baker, 30 M.J. 262 (1990). “1 (Michie 1989); Ohio Rev.Code Ann. § 2935.”
State of Tennessee v. Derishon Wadlington-Dissenting, No. W2013-02521-CCA-R3-CD (Tenn. Crim. App. Mar. 18, 2015). “Lowry making a citizen’s arrest, or a “probable cause detention” pursuant to T.C.A. § 40-7-116, which is relied upon by the majority.”
Lillie Mays v. Fred's Inc., No. W1999-02189-COA-R3-CV (Tenn. Ct. App. Jan. 10, 2000). “” Tenn. Code Ann. § 40-7-116 (c)(2). Additionally, the suspected person may only be detained for a “reasonable period of time.”
State of Tennessee v. Derishon Wadlington, No. W2013-02521-CCA-R3-CD (Tenn. Crim. App. Mar. 18, 2015). “In our view, the defendant’s detention by the Walmart asset protection employee, arrest by the Union City police officers, and search of her purse fully complied with the relevant provisions of Tennessee Code Annotated sections 40-7-116 and 40-7-118, as we have set out.”
Nasar v. Kohl's Dep't Stores, Inc., No. 1:18-cv-01212 (W.D. Tenn. Nov. 15, 2019). “) He further 5Defendant also invokes Tennessee’s Shopkeeper’s Privilege, codified at Tennessee Code Annotated § 40-7-116(c). The Court finds it unnecessary, under the circumstances, to engage in an analysis of the facts of this case under that statute.”
Patty M. Richards v. O'Connor Mgmt., Inc., No. 01A01-9708-CV-00379, 1998 WL 151392 (Tenn. Ct. App. Apr. 3, 1998). “T.C.A. § 40-7-116(c) (1990). Although the statute refers to “reasonable grounds” rather than “probable cause,” in the context of false imprisonment claims, this court has interpreted the two terms as having the same meaning.”
Tenn. Code Ann. § 40-7-116(A)(3): 1 case
State of Tennessee v. Derishon Wadlington-Dissenting, No. W2013-02521-CCA-R3-CD (Tenn. Crim. App. Mar. 18, 2015). “Lowry making a citizen’s arrest, or a “probable cause detention” pursuant to T.C.A. § 40-7-116, which is relied upon by the majority.”
Tenn. Code Ann. § 40-7-116(a)(3): 1 case
State of Tennessee v. Derishon Wadlington, No. W2013-02521-CCA-R3-CD (Tenn. Crim. App. Mar. 18, 2015). “In our view, the defendant’s detention by the Walmart asset protection employee, arrest by the Union City police officers, and search of her purse fully complied with the relevant provisions of Tennessee Code Annotated sections 40-7-116 and 40-7-118, as we have set out.”
Tenn. Code Ann. § 40-7-116(b)(2): 1 case
State of Tennessee v. Derishon Wadlington, No. W2013-02521-CCA-R3-CD (Tenn. Crim. App. Mar. 18, 2015). “In our view, the defendant’s detention by the Walmart asset protection employee, arrest by the Union City police officers, and search of her purse fully complied with the relevant provisions of Tennessee Code Annotated sections 40-7-116 and 40-7-118, as we have set out.”
Tenn. Code Ann. § 40-7-116(c): 3 cases
Brown v. SCOA Indus., Inc., 741 S.W.2d 916 (Tenn. Ct. App. 1987). “§ 40-7-116(c) provides merchants who accuse someone of shoplifting with a complete defense against a malicious prosecution or false imprisonment claim if the merchant establishes that: (1) it had probable cause, (2) it acted “in a reasonable manner under all the circumstances,”…”
Nasar v. Kohl's Dep't Stores, Inc., No. 1:18-cv-01212 (W.D. Tenn. Nov. 15, 2019). “) He further 5Defendant also invokes Tennessee’s Shopkeeper’s Privilege, codified at Tennessee Code Annotated § 40-7-116(c). The Court finds it unnecessary, under the circumstances, to engage in an analysis of the facts of this case under that statute.”
Patty M. Richards v. O'Connor Mgmt., Inc., No. 01A01-9708-CV-00379, 1998 WL 151392 (Tenn. Ct. App. Apr. 3, 1998). “T.C.A. § 40-7-116(c) (1990). Although the statute refers to “reasonable grounds” rather than “probable cause,” in the context of false imprisonment claims, this court has interpreted the two terms as having the same meaning.”
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