Kipperman v. State

• Decision Date: 24 June 1981
• Docket Number: No. 60363,60363
• Citation: 626 S.W.2d 507
• Parties: Ted KIPPERMAN, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 507

626 S.W.2d 507

Ted KIPPERMAN, Appellant, v. The STATE of Texas, Appellee.

No. 60363.

Court of Criminal Appeals of Texas, En Banc.

June 24, 1981.

Rehearing Denied Sept. 23, 1981.

Lloyd Lunsford, South Houston, for appellant.

Carol S. Vance, Dist. Atty., William W. Burge and William Camp, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

DALLY, Judge.

This is an appeal from a conviction for refusal to allow a peace officer to examine and make copies of the books, accounts, papers, correspondence and records of a licensed pawnshop in violation of Art. 5069-51.08, V.A.C.S. (Supp.1978) of the Texas Pawnshop Act. Punishment, as provided in Art. 5069-51.17(d), V.A.C.S. (Supp.1978), is a fine of $500.00.

The appellant argues that: Art. 5069-51.08, supra, is unconstitutional; his motion to quash the indictment should have been granted; the trial court erred in admitting certain documentary evidence.

The appellant is the proprietor of Ted Kipperman's Pawnshop in Houston. He was convicted for refusing to allow Houston police officer T. T. Grubbs to inspect his pawnshop records. Officer Allen Rockwell of the burglary and theft division of the Houston Police Department testified that he and Officer W. H. Elliott went to appellant's pawnshop at approximately 1:00 p.m. on March 23, 1977. Rockwell identified himself to appellant as a Houston police officer and requested to examine the records. When the appellant refused him permission to do so without a search warrant, Officer Elliott telephoned other police officers, including Officer T. T. Grubbs, who arrived approximately thirty minutes later. Officer Grubbs testified that he identified himself to the appellant, and that he was also refused permission to inspect the pawnshop records without a warrant. The appellant was then arrested for violation of the Pawnshop Act, and the officers inspected the shop's records with the cooperation of an employee of the shop. Officer Elliott, who also testified to these events, explained that he wanted to examine appellant's records in order to "confirm who had either sold or pawned different pieces of property that the fence detail was working with."

The appellant testified that it was his practice to keep copies of all his pawnshop tickets for the police; that Officer Ira Holmes was the Houston police officer who customarily collected these copies of the pawn tickets every Tuesday; the appellant had found the procedure "a very satisfactory method." He explained that when Officer Grubbs entered his pawnshop, he was dressed in blue jeans, had long hair, and did not appear to be a police officer nor did he show appellant he was. He stated that he had never refused to show the police his records.

Art. 5069-51.08, supra, under which the appellant was convicted, provides:

"At such times as the (Consumer Credit) Commissioner may deem necessary, the Commissioner, or his duly authorized representative, may make an examination of the place and business of each licensee and may inquire into and examine the transactions, books, accounts, papers, correspondence and records of such licensee insofar as they pertain to the business regulated by this Act. Such books, accounts, papers, correspondence and records shall also be open for inspection at any reasonable time by any peace officer, without need of judicial writ or other process. In the course of an examination, the Commissioner or his duly authorized representative shall have free access to the official place of business, files, safes, and vaults of such licensee, and shall have the right to make copies of any books, accounts, papers, correspondence and records. The Commissioner or his duly authorized representative may, during the course of such examination, administer oaths and examine any person under oath upon any subject pertinent to any matter about which the Commissioner is authorized or required by this Act to consider, investigate, or secure information. Any licensee who fails or refuses to let the Commissioner or his duly authorized representative or any peace officer examine or make copies of such books, or other relevant documents, shall thereby be deemed in violation of this Act ..."

The appellant contends that the emphasized portions of the statute, which authorize warrantless inspections by "any peace officer" and make it an offense to refuse such inspections, contravene the Fourth Amendment to the United States Constitution, and Art. I, Sec. 9 of the Texas Constitution.

Appellant relies on the United States Supreme Court decision See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967), where it was stated that:

"administrative entry, without consent, upon the portions of commercial premises which are not open to the public may only be compelled through prosecution or physical force within the framework of the warrant procedure."

387 U.S. at 545, 87 S.Ct. at 1740, 18 L.Ed.2d 943.

However, this general holding has since been modified by the Court's decisions in Colonnade Catering Corp. v. United States, 397 U.S. 72, 90 S.Ct. 774, 25 L.Ed.2d 60 (1970) and United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972), which held that administrative searches of certain closely regulated businesses are excepted from the warrant procedure.

In Colonnade Catering Corp. v. United States, supra, the Court addressed a federal statute authorizing warrantless inspection of federally licensed dealers in alcoholic beverages. There the petitioner disputed the validity of the warrantless seizure of liquor by federal inspectors who had forcibly entered his locked storeroom without his consent. The Court found that Congress had the power to provide statutory authority for warrantless inspections, emphasizing the historically broad power wielded by the federal government in the liquor industry "long subject to close supervision and inspection." The Court held that the general rule in See did not apply in these circumstances, but found the search invalid absent express Congressional provision for forcible entry without a warrant. The Court determined that the enforcement remedy provided by Congress was simply to make refusal to admit an inspector a criminal offense.

In United States v. Biswell, supra, the Court dealt with the Gun Control Act of 1968, which authorized warrantless inspections of federally licensed firearms dealers. Biswell, a pawnshop operator who was federally licensed to deal in sporting weapons, permitted a Federal treasury agent to conduct a warrantless inspection of his premises after being informed of the agent's statutory authority to do so. Based on the agent's discoveries in this inspection, Biswell was convicted of dealing in firearms without having paid a required tax. The Court held that, as in Colonnade, Congress had the power to authorize warrantless inspection. The Court stated that although federal regulation of the interstate traffic of firearms is not as deeply rooted in history as regulation of the liquor industry, close scrutiny of this traffic is central to federal efforts to prevent violent crime and to assist the States to regulate firearms traffic within their borders. Inspection is crucial; it assures traceable distribution of weapons and facilitates prevention of sales to certain persons. The Court stated that if the law is to be properly enforced and inspection made effective, warrantless inspections must be deemed reasonable official conduct under the Fourth Amendment. Furthermore, the Court found that warrantless inspections would pose only limited threats to the dealer's justifiable expectation of privacy, since:

"When a dealer chooses to engage in this pervasively regulated business and to accept a federal license, he does so with the knowledge that his business records, firearms, and ammunition will be subject to effective inspection."

406 U.S. at 316, 92 S.Ct. at 1596, 32 L.Ed.2d 87.

The holdings in Colonnade and Biswell were further clarified by the decision in Marshall v. Barlow's, Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978). There the Court found the Occupational Health and Safety Act of 1970 was unconstitutional insofar as it purported to authorize warrantless inspections of any employment facility of a business involved in interstate commerce. The Court distinguished Colonnade and Biswell, stating:

"Certain industries have such a history of government oversight that no reasonable expectation of privacy ... could exist for a proprietor over the stock of such an enterprise. Liquor (Colonnade) and firearms (Biswell) are industries of this type; when an entrepreneur embarks upon such a business, he has voluntarily chosen to subject himself to a full arsenal of governmental regulation.

"... The element that distinguishes these enterprises from ordinary businesses is a long tradition of close governmental supervision of which any person who chooses to enter such a business must already be aware '... The businessman in a regulated industry in effect consents to the restrictions placed upon him.' Almeida-Sanchez v. United States, 413 U.S. 266, 271, 93 S.Ct. 2535, 2538, 37 L.Ed.2d 569 (1973)."

436 U.S. at 313, 98 S.Ct. at 1821, 56 L.Ed.2d 305.

In Texas, pawnshops have long been the subject of close governmental supervision. See Tex.Laws 1874, Ch. CVII, Sec. 1, et seq., at 153, 8 H. Gammell, Laws of Texas 155 (1898); Tex.Rev.Civ.Stat. art. 3494, et seq. (1879); Tex.Rev.Civ.Stat. art. 3636 et seq. (1895); Tex.Civ.Stat. art 6155, et seq. (1914); Tex.Rev.Civ.Stat.Ann. art. 6146 et seq. (1962). See also Juhan v. State, 216 S.W. 873 (Tex.Cr.App.1919). Aspects of this regulation, now embodied in the Texas Pawnshop Act, are designed to address the consumer credit issues of the pawnbrokerage business, and the Consumer Credit Commissioner is given the statutory authority to promulgate regulations in this area, issue and...