City of St. Louis v. Liberman

• Decision Date: 14 February 1977
• Docket Number: No. 59389,59389
• Citation: 547 S.W.2d 452
• Parties: CITY OF ST. LOUIS, Respondent, v. Joseph H. LIBERMAN, Appellant.
• Court: Missouri Supreme Court

Page 452

547 S.W.2d 452

CITY OF ST. LOUIS, Respondent, v. Joseph H. LIBERMAN, Appellant.

No. 59389.

Supreme Court of Missouri, en banc.

Feb. 14, 1977.

Rehearing Denied March 14, 1977.

Bernard Susman, St. Louis, Mo., for appellant.

Judith A. Ronzio, Asst. City Counselor, St. Louis, for respondent.

Richard E. Schum, Am. Civ. Liberties Union of Eastern Missouri, East St. Louis, Ill., Francis Ruppert, Am. Civ. Liberties Union of Eastern Missouri, Clayton, amicus curiae.

HENLEY, Judge.

This is an appeal by Joseph H. Liberman (defendant) from two judgments of conviction of violations of ordinances of the City of St. Louis regulating pawnbrokers.

Defendant, a pawnbroker in the City of St. Louis, was charged by information filed in case No. 158293 in City Court with violation in November, 1974, of § 700.130 of Ordinance No. 55784 of the City of St. Louis by unlawfully accepting for pawn a saxophone without making a photograph of the person from whom it was received and of the receipt or pawn ticket given to such person. He was also charged by information in case No. 158294 with violation in November, 1974, of § 700.061 ¹ of Ordinance No. 55784 by unlawfully failing to keep a register of the loan made on the saxophone showing the photograph number and the age of the person who left the saxophone on deposit as collateral security as well as his social security number or his motor vehicle operator or chauffeur's license number. Motions to dismiss these informations attacking the constitutionality of Ordinance No. 55784 were overruled and, upon subsequent trial in City Court, defendant was convicted and fined $10 (plus costs) in each case. He appealed from these judgments to the St. Louis Court of Criminal Correction where he again filed a motion to dismiss attacking the ordinance as unconstitutional and void because violative of designated provisions of the federal and state constitutions. This motion was also overruled and, as stated, the trial of the charges resulted in conviction ² and this appeal. We affirm.

The trier of facts reasonably could find from the evidence that Dorian Isaac pawned a saxophone in early November, 1974, at defendant's pawnshop and received a pawn ticket therefor; that officers of the St. Louis police department assigned to the pawnshop squad, without a search warrant but with consent of the person in charge thereof, made a routine examination of defendant's books and records in the private area of defendant's place of business on November 18, 1974, during which they found listed the saxophone pawned by Mr. Isaac bearing a serial number identical to one listed with the police department as lost or stolen; that defendant did not make a photograph of Mr. Isaac or the pawn ticket given him as required by § 700.130, supra; that the pawn register book contained the name and address of Mr. Isaac and a notation of the transaction with him, but did not contain information as to his age or social security number or his motor vehicle operator or chauffeur's license number (and, of course, did not show a photograph number) as required by § 700.061, supra. The evidence is sufficient to sustain conviction of violation of these sections of the ordinance. There is also evidence that the officers took the saxophone, gave defendant a receipt therefor, and that one of them marked the pawn register book that it had been "seized" by the police department on the date of this inspection.

The first point briefed by defendant is that his conviction should be reversed because his right under the federal and state constitutions ³ to be secure against unreasonable searches and seizures was violated by "the warrantless search of the nonpublic business area of the pawnshop without consent, the seizure of the saxophone, and the demand for photographs and film."

The evidence does not support the assertion in this point that the officers made a search of the nonpublic business "area" of the pawnshop or any other area thereof. ⁴ Defendant does not point to any evidence of such search and we have found none in our examination of the record. What the officers did do was examine defendant's books and records as required by the ordinance, and this examination was made while they were in the private or nonpublic business area with the tacit permission of the person then in charge of the business.

The substance of this point is stated in his argument to be that the ordinance is unconstitutional on its face, because it requires him to submit to demands to inspect his books and to demands to surrender photographs and property, all without a search warrant or his voluntary consent.

In Liberman v. Cervantes, supra (511 S.W.2d at 837, 838) the court said:

"Requiring pawnbrokers to take photographs of customers and make them available to law enforcement officers upon request does not violate search and seizure guarantees. It has long been established that the state may validly regulate the business of pawnbrokers, which is a privilege, not a right, 'and he who avails himself of it, and derives its benefits, must bear its burdens, and conform to the laws in force regulating the occupation, if not illegal. * * *' City of St. Joseph v. Levin, 128 Mo. 588, 31 S.W. 101, 102-103 (1895). This business is one of a class where the strictest police regulation may be imposed. 54 Am.Jur.2d Moneylenders and Pawnbrokers § 3, p. 597. The requirement of photographs is reasonably connected with the object and purpose of the ordinance as a whole, which is 'to keep the pawnbrokers' business free from great abuse by thieves disposing of stolen goods in their shops. They are all made in the interest of the public, and are intended for the detection and prevention of crime.' Idem., 31 S.W. l. c. 103; 54 Am.Jur.2d Moneylenders and Pawnbrokers § 5, p. 600. This requirement is akin to the requirement that pawnbrokers' records be kept, produced and opened for inspection by designated public officials, upheld because it has a direct relation to the prevention of crime and the detection and apprehension of criminals, 54 Am.Jur.2d Moneylenders and Pawnbrokers § 5, p. 600 (see also 79 C.J.S. Searches and Seizures § 36, p. 803), and compares with the requirement of fingerprinting of persons from whom pawnbrokers receive goods, which has been upheld as not improperly interfering with personal liberty. Idem."

The requirements of the ordinance that pawnbrokers' records be kept and available for examination by police officers of the city, and that photographs of his customers be taken and made available to such officers, are a valid and proper exercise of the police power and do not infringe the constitutional guaranty against unreasonable searches and seizures or defendant's right to privacy.

Other points briefed by defendant in this case which were decided against him in Liberman v. Cervantes, supra, are:

1. That the ordinance is vague and uncertain because it fails to state or define with particularity such terms as "proper camera," "law enforcement officers," and "full description of all such property" and therefore violates Mo.Const. Art. I, § 10 and the due process clause of the Fourteenth Amendment. 511 S.W.2d at 838(3-7).

2. That the regulatory requirements of the ordinance are confiscatory and result in a "taking" of defendant's property without compensation or prior notice and therefore violate Mo.Const. Art. I, § 26 and the due process clause of the Fifth and Fourteenth Amendments. 511 S.W.2d at 838-839(8, 9).

3. That the warrantless inspection of defendant's pawn register book and the seizure of photographs of his customers without consent violates his and his customers' right to privacy guaranteed by the Fourth, Fifth and Fourteenth Amendments of the United States Constitution. 511 S.W.2d at 837(1) and 839(10).

4. That § 700.031 of the ordinance is unconstitutional on its face because it unlawfully delegates to the police commissioners authority to pass upon the moral character of applicants for a pawnbroker's license without specifying what standards they are to employ in determining whether an applicant is of good moral character. 511 S.W.2d 839-840(12).

This section of the ordinance does not unlawfully delegate to the license collector authority to designate identifying insignia to be required for identification of the twenty items named in this section of the ordinance. In the first place, the ordinance does not require, authorize or permit the collector to designate such identifying insignia. Subsection c of § 700.031 provides that before issuance of a license by the collector the applicant shall have agreed that he will not accept for pawn or purchase any one of twenty named items (e. g., camera, radio, tape recorder or player, dictating machine, television set) "unless such item shall have plainly visible thereon the manufacturer's serial number or other identifying insignia." The requirement that the item have other identifying insignia plainly visible thereon where there is no manufacturer's serial number is reasonably connected with the general purpose and object of the ordinance as expressed in Liberman, supra, at 837, and is made in the interest of the public to facilitate the detection and prevention of crime. The words "other identifying insignia" in the context of this ordinance are sufficiently explicit and so well understood by the average person that they require no further designation or definition.

We have considered the additional authorities cited by defendant on the above points and are not persuaded that our decision in Liberman v. Cervantes, supra, should be abandoned. We adhere to that decision.

Two additional points briefed by defendant in this case, not presented in Liberman v. Cervantes, supra, are that the ordinance is unconstitutional on its face, because:

(1) it subjects him to involuntary servitude in violation of the Thirteenth Amendment of the U.S. Constitution by compelling him to aid the...