STATE of Florida, Petitioner, v. Jenny JONES, Respondent, 461 So. 2d 97

EHRLICH, Justice. We have before us by petition for review Jones v. State, 434 So.2d 337 (Fla. 3d DCA 1983). The district court certified its decision as being in direct conflict with Williams v. State, 347 So.2d 472 (Fla. 1st DCA 1977), cert. discharged, 376 So.2d 846 (Fla.1979). Our jurisdiction is pursuant to

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section 3(b)(4), Florida Constitution. Respondent was charged with and convicted of second-degree theft. The state presented the only witness who testified, Terry White, a store detective employed by' Jefferson stores. According to his testimony, respondent and another woman entered the store, proceeded to the ladies’ wear department, and filled two red Jefferson bags with jumpsuits. White followed them out the exit door. White then identified himself, explained to the women why they had been stopped and asked them to return to the security office with him.

At this point in the testimony, the prosecutor asked White whether the women offered any explanation for their conduct. Following the response, “No, none,” defense counsel objected and moved for a mistrial on the basis that respondent had a fifth amendment privilege to remain silent and not to have the exercise of that right disclosed to the jury. The trial court denied the motion, finding it dispositive that the silence about which White testified occurred prior to respondent’s arrest.

The district court agreed with respondent and reversed, relying primarily on the authority and reasoning in Judge Rawls’ dissent in Williams. It was Judge Rawls’ position that when a merchant detains a suspected shoplifter under

section 901.34, Florida Statutes (1975) [here

section 812.-015(3)(a), Florida Statutes (1981) ], a police-like atmosphere has been created, pursuant to the sovereign’s grant of power, and the suspect is “in custody.”

Section 812.-015(3)(

a) provides: [a] law enforcement officer, a merchant, a merchant’s employee, ... who has probable cause to believe that merchandise ... has been unlawfully taken by a person and that he can recover it by taking the person into custody may, for the purpose of attempting to effect such recovery or for prosecution, take the person into custody and detain him in a reasonable manner and for a reasonable length of time.... [A] law enforcement officer shall be called to the scene immediately after the person has been taken into custody. [Emphasis supplied.] Séction 812.015(6), Florida Statutes (1981) provides: [a]n individual who resists the reasonable effort of a law-enforcement officer, merchant [or] merchant’s employee ... to recover merchandise ... which the [authorized person under the statute] ... had probable cause to believe the individual had concealed or removed from its place of display or elsewhere and who is subsequently found to be guilty of theft of the ... merchandise ... is guilty of a misdemeanor of the first degree ....

We do noi agree with the Third District or Judge Rawls that

section 812.015, Florida Statutes raises the action of a store employee charged with the duty of protecting his employer’s property interests to the level of state action for purposes of invoking the protection of the fifth amendment to the United States Constitution or

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section 9 of the Florida Constitution. To do so would overlook the common law right of recapture (or recaption) of chattels. At common law, the owner or custodian of property has the right to take action in defense of that property. That action may include force or confinement reasonable under the circumstances. Restatement of Torts § 77.80 (1934); W. Prosser, Law of Torts § 22 (4th ed. 1971). This view was clearly that of the Florida Supreme Court in Winn & Lovett Grocery Co. v. Archer, 126 Fla. 308, 171 So. 214 (1936).

It is undoubtedly true that in order to recover for false arrest of the person, it must be shown that the restraint was unreasonable and such as was not warranted by the circumstances. Jacques v. Childs Dining Hall Co., 244 Mass. 438, 138 N.E.Rep. 843, 844, 26 A.L.R. 1329. It was said in that case: “It may be assumed — indeed, it is not denied — that the plaintiff knew that she must pay for her luncheon before leaving the restaurant, and the defendant undoubtedly had the right, if apparently she had not paid, to detain her for a reasonable time to investigate the circumstances.

But if she was detained for an unreasonable time or in any unreasonable way she is entitled to recover.” 126 Fla. at 317-18, 171 So. at 218. The harsh corollary of the common-law rule was that, if the suspicion of theft or interference proved to be erroneous, the detention was per se unreasonable and not warranted by the circumstances. It follows that a shopkeeper, who has good reason to believe that he has caught a customer in the act of stealing, of defrauding him of goods, or of sneaking out without paying for goods or services, is placed in a difficult position.

He must either permit the suspected wrongdoer to walk out, and very probably say goodbye to both goods and payment, or run the risk that he will be liable for heavy damages for any detention. Many courts have held him liable for false imprisonment under an honest mistake in such a case. Prosser, § 22 at 121. In order to mitigate this difficult position, California adopted a rule allowing probable cause to suspect theft to substitute for proof of actual theft in raising the defense of justification to a claim of false imprisonment. Collyer v. S.H. Kress & Co., 5 Cal.2d 175, 54 P.2d 20 (1936).

This amelioration of the shop-keeper’s dilemma quickly became the majority rule. Annot., 137 A.L.R. 495 (1942). See also Dooley, Modern Tort Law § 42.07 n. 3 (1977). Florida codified this protection of a shopkeeper’s right to protect his property in 1955. Ch. 29668, Laws of Fla. (1955). The title to this statute, a direct precursor to the current one, makes clear the legislature’s concern for the merchants’ exposure to civil liability:

AN ACT relating to larceny of goods held for sale; providing that detaining a person under suspicion by a peace officer, merchant, or merchant’s employee, shall not render merchants, merchant’s employee, or peace officer criminally or civilly liable for false arrest, false imprisonment or unlawful detention; providing for arrest without a warrant by a peace officer upon probable cause, and exempting merchants or their employees from civil or criminal liability where probable cause exists to believe a person committed larceny of goods held for sale. (Emphasis supplied.) Thus, the statute gave the shopkeeper no greater right than he previously enjoyed when he apprehended and reasonably detained an actual shoplifter; it merely protected him from the consequences of reasonable errors.

Nor does the later addition of a criminal penalty for resisting reasonable efforts to recover merchandise cloak those reasonable efforts with state action. State action arises only with arrest and prosecution for that misdemeanor charge. If, as the court below held, the detention by the store employer be state action, then it would follow that the state would be liable in damages for any detention found to be unreasonable, a result surely not contemplated by the legislature in the passage of

section 812.015(3). Because we find no state action in the detention of the appellee, we hold that the right to silence protected by the fifth amendment and by Florida’s own Declaration of Right was not violated. Accordingly the decision of the district court is quashed and the decision of the First district in Williams is approved and the cause is remanded to the trial court for reentry of the original conviction and sentence. It is so ordered. ADKINS, OVERTON, ALDERMAN and McDONALD, JJ., concur. SHAW, J., concurs in result only. BOYD, C.J., dissents with an opinion.