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AGO 1957 No. 35 - March 19, 1957
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John J. O'Connell | 1957-1968 | Attorney General of Washington

ARREST ‑- FOR MISDEMEANOR ‑- BY CITIZEN, OFFICER

A citizen may arrest any person whom he observes committing the crime of petit larceny in his presence.

An officer may not arrest a person, without a warrant, on information or suspicion for a misdemeanor not committed in his presence.

                                                                  - - - - - - - - - - - - -

                                                                  March 19, 1957

Honorable Charles O. Carroll
Prosecuting Attorney of King County
County-City Building
Seattle 4, Washington                                                                                                                Cite as:  AGO 57-58 No. 35


Dear Sir:

            We acknowledge your request for an opinion on the following questions:

            (1) Under the laws of the State of Washington, can a grocer or other storekeeper make a valid citizen's arrest of a person observed by the storekeeper to be secreting merchandise of a value less than $75 on his person while such person is on the store premises?

            (2) Under the laws of the State of Washington, can a grocer or other storekeeper make a valid citizen's arrest of a person observed by the storekeeper to be secreting merchandise of a value of less than $75 on his person after such person has left the store premises?

            (3) Under the laws of the State of Washington, can a duly constituted law enforcement officer make a valid arrest of a shoplifter either in the store or outside of it on the oral complaint of a storekeeper who has observed such person secreting merchandise of a value less than $75 on his person?

            (4) If the answer to all of the preceding questions is in the negative, what rights, if any, does the storekeeper have to summarily and forthwith recover merchandise of a value less than $75 which he observes a shoplifter take and secrete either  [[Orig. Op. Page 2]] inside the store or after the shoplifter has left the premises with the merchandise?

            We answer questions (1) and (2) in the affirmative, (3) in the negative, and (4) in our discussion of the first three questions.

                                                                     ANALYSIS

            Because the answers to your questions must be based on definite situations, we have assumed certain facts in arriving at our answers.  Since you use the phrase "to be secreting" in your first two questions, we have assumed that the merchandise was acquired by the person with a felonious intent.  In other words, he picked up the merchandise with the intention to steal it, and the carrying away was in furtherance of the original criminal intent.  If the elements of a crime ‑ here petit larceny ‑ cannot be established, obviously a different answer would result.

            Your questions are governed by our larceny statutes, particularly RCW 9.54.090 (6) as amended by § 1, chapter 97, Laws of 1955.  In so far as here pertinent, this statute provides:

            "Every person who steals or unlawfully obtains, appropriates, brings into this state, buys, sells, receives, conceals, or withholds in any manner specified in RCW 9.54.010‑-

            "(6) Property of the value of more than seventy-five dollars, in any manner whatever; shall be guilty of grand larceny and be punished by imprisonment in the state penitentiary for not more than fifteen years.

            "Every other larceny shall be petit larceny and shall be a gross misdemeanor."

            RCW 9.54.010 provides in part:

            "Every person who, with intent to deprive or defraud the owner thereof‑-

            "(1) Takes, leads, or drives away the property of another; or

            ". . . steals such property and shall be guilty of larceny."

            The only change effected by the 1955 amendment was to increase the value of the property taken from $25 to $75 to constitute grand larceny.  In this state the only things essential to constitute the corpus delicti of the theft are: (1) The  [[Orig. Op. Page 3]] asportation, or fact which formed the basis of the criminal act; and (2) that some person wrongfully brought about that fact.  (State v. Grenier (1948), 29 Wn. (2d) 772.)

            From the difference in phrasing of your first two questions, we assume that there is some question as to whether or not asportation is a necessary element of the crime even though in both instances the person was observed secreting the property.  InState v. Olds (1951), 39 Wn. (2d) 258, it was pointed out that under R.R.S. 2601 (1), which is now codified as RCW 9.54.010 above quoted, there must be evidence or permissible inference therefrom of asportationor original felonious intent.  In both instances it will be observed that asportation or facts evidencing a criminal intent at the time the act was committed was essential.  In other words, asportation is indicative of a criminal intent.  Since it is assumed that the secreting was because of an original intent to steal, the carrying away is further evidence of the original criminal intent.

            And again, inState v. Smith, (1939), 2 Wn. (2d) 118, 122, the court, referring to the particular subsection under consideration here, said:

            ". . . In order to constitute larceny, there must have been, first, an unlawful acquisition of possession of the property with the intention at the time of taking it into possession to convert it to the taker's use, and second, an appropriation of the property by the one who took it."

            Based on the foregoing analysis and our factual assumptions, your first two questions can be considered to state facts sufficient to constitute the crime of larceny.  Since the crime of larceny has been committed, these questions involve the right of a citizen to make an arrest for a misdemeanor committed in his presence.

            In connection with the general question, this office, in an opinion dated December 27, 1927, to the director of health (1927-28 AGO 427), stated that:

            ". . .  If a crime is actually being committed in one's presence, a person, whether he be a peace officer or not, has the power to arrest without warrant. . . ."

            Later, in an opinion dated July 31, 1928, to the chief of the highway patrol (1927-28 AGO 867), it was said that:

            ". . . every citizen has the right to arrest any person  [[Orig. Op. Page 4]] whom he actually observes in the act of committing a misdemeanor. . . ."

            In 4 Am.Jur., Arrest, § 35, it is said that:

            "While the authority of a private person to arrest is more limited than that of an officer, in general it may be said that a private person may arrest an offender against criminal laws where the offense is committed in his presence; . . ."

            And in § 38:

            ". . . a private person may arrest for an affray or breach of the peace committed in his presence, and while it is continuing, but not for a misdemeanor on suspicion, regardless of how well it is grounded. . . ."

            The same authority exists for a private person to make an arrest as an officer for misdemeanor committed in his presence, under the common law.  In this state, it has been held that the right of an officer to make an arrest without a warrant exists even though the misdemeanor committed in his presence be not a breach of the peace.  (State v. Deitz, 136 Wash. 228.)  Also, cf.State v. Olsen, 43 Wn. (2d) 726.  A private person, if the arrest by him be lawful, is accorded the same right and privileges as officers in accomplishing the purpose.  Smith v. Drew, 175 Wash. 11.

            Based on the foregoing, we conclude that a grocer or other storekeeper may arrest a person for a petit larceny committed in his presence.

            Your third question is answered in the negative on the authority ofTacoma v. Houston, 27 Wn. (2d) 215, 226, where the court said:

            ". . .  It is the rule in this state that not even an officer may arrest for a misdemeanor without a warrant, on information or suspicion, unless the misdemeanor was actually committed in his presence. . . ."

            And, as said inState v. Silverman, 48 Wn. (2d) 198, 202:

            ". . . Conversely, an arrest for a misdemeanor may be  [[Orig. Op. Page 5]] made without a warrant when the offense is committed in the arresting officer's presence. . . ."

            In view of our affirmative answer to the first two questions, a consideration of your fourth question becomes unnecessary.

            We trust this opinion will be helpful to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General


MITCHELL DOUMIT
Assistant Attorney General

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