In my desire to check on sale items that I could buy as presents for Christmas, I went bargain hunting in malls located in the Metropolis. In a department store along Quezon Avenue, Quezon City, I encountered an unusual store exit bag check. Since I did not purchase anything in the store, I had no receipt to show. I declined to let the female security guard check the contents of my bag. I calmly advised her to call her supervisor if she insists on the bag check, and she did. I explained to the male security supervisor that what the store is doing is an unconstitutional search since there is no probable cause to intrude into the privacy of my belongings. The supervisor said he will bring the matter up to store management and allowed me to leave. Citizens must be reminded of their constitutional right to refuse unreasonable store exit bag checks and of their freedom not to patronize these department stores that transgress constitutional rights.

Store exit bag check is a radical loss prevention policy where a store clerk or security guard checks customer purchases evidenced by their receipt at the exit door. The bag checker’s purpose is to ensure that the cashier correctly charged all items in the shopping bag or cart. In spite of not being consumer friendly, store management believes it is a great deterrent against employee theft, shoplifting and refund fraud. It is usually used in high ticket specialty stores i.e. computer hardware and software products, small handheld electronic devices, music CDs and videotapes, that have experienced large inventory losses. In the United States alone, Chris McGoey (Jan. 30, 2023) estimates that merchants lose 11 Billion US dollars every year on shoplifting alone.

There are several consumer friendly and less intrusive ways of detecting criminal activity inside stores. Many establishments have installed video surveillance cameras in and out of stores, hired undercover officers to roam the floor, and attached electronic article surveillance tags to goods, and placed high value small items under lock and key inside clear glass cabinets which customers can only access with store clerk assistance who issues a paper ticket to be presented to the cashier for payment first before the item is taken out of the cabinet and brought to the check- out stand.

McGoey explained that there are six (6) universally accepted steps a merchant should follow before deciding to stop someone suspected of shoplifting: 1. You must see the shoplifter approach your merchandise; 2. You must see the shoplifter select your merchandise; 3.You must see the shoplifter conceal or carry away your merchandise; 4. You must maintain continuous observation of the shoplifter; 5. You must see the shoplifter fail to pay for the merchandise; 6. You must approach the shoplifter outside the store. These provide probable cause. Without them, the merchant exposes itself to civil and criminal liability for the illegal search of the bag of a customer.

The Supreme Court has time and again reminded law enforcement officers to follow strictly procedure in searches as it may lead to acquittal of the accused following the exclusionary rule of the fruit of the poison tree. In simple terms, the Constitution does not allow the end to justify the means. Otherwise, in eradicating one societal disease, a deadlier and more sinister one is cultivated – the trampling of the people’s fundamental, inalienable rights. The Bill of Rights should never be sacrificed on the altar of convenience. Otherwise, the malevolent mantle of the rule of men dislodges the rule of law. (People v Sapla, June 16, 2020).

Merchants have the freedom to put procedures and devices to curb shoplifting losses. But this freedom of merchants must be exercised within the bounds of the Constitution (Section 2, Article III). Consumers, like me, are also free not to patronize malls with store exit bag checks that leads to lower sales which is unnatural for merchants to desire.

Atty. Magi Gunigundo is a former lawmaker, civil law instructor, and author of law books. He is also an education reformer and an advocate of anticipatory governance.