4 F.3d 848 (10th Cir. 1993), 92-5055, Winters v. Board of County Com'rs

Docket Nº:92-5055.
Citation:4 F.3d 848
Party Name:Annabelle WINTERS, d/b/a Sharp's Pawn Shop, Plaintiff-Appellant, v. BOARD OF COUNTY COMMISSIONERS, Osage County, Oklahoma; Osage County Sheriffs Department; George Wayman, individually and as Sheriff of Osage County; Allen Landsdown, individually and as Deputy Sheriff; Dale Penny, individually and as Deputy Sheriff, Defendants-Appellees.
Case Date:September 02, 1993
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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4 F.3d 848 (10th Cir. 1993)

Annabelle WINTERS, d/b/a Sharp's Pawn Shop, Plaintiff-Appellant,



Osage County Sheriffs Department; George Wayman,

individually and as Sheriff of Osage County; Allen

Landsdown, individually and as Deputy Sheriff; Dale Penny,

individually and as Deputy Sheriff, Defendants-Appellees.

No. 92-5055.

United States Court of Appeals, Tenth Circuit

September 2, 1993

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[Copyrighted Material Omitted]

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Laurence K. Donahoe, Oklahoma City, OK, for plaintiff-appellant.

David W. Lee, Oklahoma City, OK, for defendants-appellees.

Before BRORBY, BARRETT, and EBEL, Circuit Judges.

BRORBY, Circuit Judge.

Appellant, Annabelle Winters, appeals the district court's entry of summary judgment on her 42 U.S.C. Sec. 1983 claim against the County of Osage, the Sheriff's Department, and various officers within the Sheriff's Department. Ms. Winters, who does business as Sharp's Pawn Shop (Sharp's), brought this action to recover for violations of her constitutional rights arising out of the warrantless seizure of a ring from Sharp's premises and its subsequent disposition.


On November 9, 1988, Shelly Dean stole a men's diamond cluster ring from her uncle, George Ward. Ms. Dean pawned the ring at Sharp's for $50 that same day. On November 20, Mr. Ward reported the incident to

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Deputy Sheriff Dale Penny, who subsequently commenced an investigation. Deputy Sheriff Penny filed a report and a probable cause affidavit for the arrest of Shelly Dean. Oklahoma law requires pawnshops to make available to law enforcement detailed records for every buy or pawn transaction. Okla.Stat.Ann. tit. 59, Sec. 1515 (West Supp.1993). Upon examining these records Deputy Sheriff Allen Landsdown discovered a men's diamond cluster ring pawned by Shelly Dean at Sharp's. The magistrate judge found that on March 2, 1989, Deputy Sheriff Landsdown "went to the pawnshop for the express purpose of seizing the stolen ring." 1 Upon demand, the employees of the pawnshop procured the ring for Deputy Landsdown, who signed for its receipt.

The ring was subsequently used as evidence in the criminal proceedings against Shelly Dean. After entering a plea of no contest, Shelly Dean was ordered to pay $60 restitution ($50 she received for the pawn plus $10 interest). Appellant refused to accept the restitution check. Without conducting a hearing, the Sheriff's Department returned the ring to George Ward.

Ms. Winters filed a complaint asserting the warrantless seizure and the disposition of the ring violated her Fourteenth, Fourth, and Fifth Amendment rights. Moreover, she challenged the constitutionality of three Oklahoma statutes relating to pawnbrokers (Okla.Stat.Ann. tit. 59, Secs. 1508, 1515 (West Supp.1993) and Okla.Stat.Ann. tit. 21, Sec. 1092 (West 1989)). The magistrate judge filed a report and recommendation which was adopted in full by the district court. The report concluded Ms. Winters suffered no abrogation of her constitutional rights, upheld the Oklahoma statutes as constitutional, and recommended the entry of summary judgment on behalf of the defendants.

A liberal reading of appellant's brief reveals that she challenges three issues on appeal. First, appellant challenges the constitutionality of the aforementioned Oklahoma statutes. Second, appellant contends the warrantless seizure of the ring violated Sharp's Fourth Amendment rights. Third, appellant argues the ultimate disposition of the ring violated Sharp's rights guaranteed by the Due Process Clause.

We review the district court's granting of summary judgment de novo. Eaton v. Jarvis Products Corp., 965 F.2d 922, 925 (10th Cir.1992). Summary judgment is appropriate only if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). Upon review, we do not find all appellees are entitled to judgment as a matter of law on the second and third grounds for appeal.


By establishing the Oklahoma Pawnbroker Act, Okla.Stat.Ann. tit. 59, Sec. 1501 et seq., the state established a comprehensive scheme to regulate licensing of pawnbrokers, monitor pawn transactions, and control usury rates charged by pawnshops. Appellant contends the procedures mandated by Okla.Stat.Ann. tit. 59, Sec. 1508 and Sec. 1515 are unconstitutional. 2 Section 1508 allows the books, records, and property of licensed pawnbrokers to be examined without a warrant. 3 Section 1515

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lists the facts which must be included in the pawnbroker's report of all buy or pawn transactions, such as the identification of the customer and the description of the item being pawned or sold. This court previously upheld the constitutionality of the Oklahoma Pawnbroker Act. S & S Pawn, 947 F.2d at 436-440.

In S & S Pawn, the constitutionality of Sec. 1508 was challenged for overbreadth and vagueness. In upholding Sec. 1508 as constitutional, the court noted "warrantless administrative searches may be reasonable within the meaning of the fourth amendment when the premises are used in a closely regulated business or industry." Id. at 436. For a warrantless inspection in a closely regulated industry to be reasonable it must satisfy three criteria enunciated in New York v. Burger, 482 U.S. 691, 702-03, 107 S.Ct. 2636, 2643-44, 96 L.Ed.2d 601 (1987); (1) there must be a substantial government interest; (2) "warrantless inspections must be 'necessary to further [the] regulatory scheme' "; and (3) the inspection program must provide a " 'constitutionally adequate substitute for a warrant.' " Id. (citation omitted). The court in S & S Pawn performed a detailed analysis of the Oklahoma statute in relation to the Burger criteria. S & S Pawn, 947 F.2d at 436-39. The court concluded the statute on its face adequately protects Fourth Amendment rights and is not overbroad or vague. Moreover, the court determined the reporting requirements of Sec. 1515 are constitutional, as "all [the] information pawnbrokers are required to record is potentially relevant to an investigation of stolen property by law enforcement officials." Id. at 438. Turning to the case at bar, Sharp's argues the Oklahoma statute does not provide a constitutionally adequate substitute for a warrant, and fails to channel the discretion of the officers. We remain steadfast to our decision in S & S Pawn which addressed these same concerns and upheld the statute as constitutional.

The appellant in the present case also challenges the validity of the statute on different grounds. First, the appellant contends the Oklahoma Pawnbroker Act violates the privacy provisions of 5 U.S.C.A. Sec. 552a (West 1977 & Supp.1993) and 12 U.S.C.A. Sec. 3401 et seq. (West 1989 & Supp.1993). Second, appellant argues the statute violates the Due Process and Equal Protection clauses of the Fourteenth Amendment. Both of these contentions lack merit.

The provisions in 5 U.S.C.A. Sec. 552a govern the conditions of disclosure of personal records by a federal agency. Information disclosed which does not originate from federal agency records enjoys no protection under Sec. 552a(b). See Thomas v. United States Dept. of Energy, 719 F.2d 342, 345 (10th Cir.1983). Title 5 U.S.C.A. Sec. 552a has no relevance to mandatory state disclosures required of pawnbrokers under the Oklahoma Pawnbroker Act. Similarly, pawnbrokers fall outside of the confidentiality protections of the Right to Financial Privacy Act, 12 U.S.C. Sec. 3401 et seq. Although Sec. 3403 forbids a financial institution from disclosing a customer's financial records, a pawnshop is not considered a financial institution under the definition. Section 3401 provides: " 'financial institution' means any office of a bank, savings bank, card issuer as defined in section 1602(n) of Title 15, industrial loan company, trust company, savings association, building and loan, or homestead association (including cooperative banks), credit union, or consumer finance institution." Thus, pawnbrokers fall outside the scope of this Act as Congress did not intend for pawnbrokers or their customers to be afforded the protections given to financial institutions.

Appellant asserts the reporting requirements imposed on pawnbrokers as compared to the confidentiality protections banks

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enjoy violate the Due Process and Equal Protection clauses as there is no rational basis for disparate treatment. Appellant contends the amount of criminal activity occurring at pawnshops is indistinguishable from that occurring at banks. Economic regulations governing financial institutions violate the Equal Protection clause only if no rational basis supports the regulation. Otero...

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