Wolfenbarger v. Williams
| Decision Date | 26 September 1985 |
| Docket Number | No. 83-2331,83-2331 |
| Citation | 774 F.2d 358 |
| Parties | Margaret A. WOLFENBARGER d/b/a Shady Sam's Pawn Shop, Plaintiff-Appellant, v. Clancy WILLIAMS, Loy Bean, Robert L. Gillian, Dick Tannery, Robert Perrine, the City of Lawton, Oklahoma, a Municipal Corporation, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Warren H. Crane, Lawton, Okl., for plaintiff-appellant.
Gerald S. Rakes, Asst. City Atty., City of Lawton, Okl., for defendants-appellees Clancy Williams, Loy Bean, Robert Gillian and the City of Lawton, Okl.
Michael C. Turpen, Atty. Gen., and Robert A. Nance, Asst. Atty. Gen., State of Okl., Oklahoma City, Okl., for defendant-appellee Robert Perrine.
Before SEYMOUR, BREITENSTEIN, and SETH, Circuit Judges.
After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed.R.App.P. 34(a); Tenth Cir.R. 10(e). The cause is therefore ordered submitted without oral argument.
Margaret Wolfenbarger brought this action under 42 U.S.C. Sec. 1983 (1982) against the City of Lawton, City police officers Clancy Williams and Loy Bean, Chief of Police Robert Gillian, Comanche County District Attorney Dick Tannery, and Comanche County Assistant District Attorney Robert Perrine. Wolfenbarger, a licensed Oklahoma pawnbroker, alleges that defendants violated her constitutional right to due process when they seized certain property from her pawnshop and turned it over to a third party. The district court held that Wolfenbarger did not have a protected property interest in the items, and granted summary judgment in favor of defendants. We reverse.
Wolfenbarger owns and operates Shady Sam's Pawn Shop in Lawton, Oklahoma. On August 15, 1980, Williams entered Shady Sam's while investigating a report of stolen property. The property, a stereo receiver and cassette player, had been reported as stolen 1 by the owner, a Mr. Logens, on August 13, 1980. In the course of his investigation of the pawnshop, Williams discovered that the serial numbers listed on two pawn tickets matched the numbers of the stolen stereo equipment. Williams did not confiscate the two items at that time but instead issued the pawnshop a ticket, placing the property on "hold". A "hold" was an official police request that a pawnshop not sell or otherwise dispose of items needed as evidence in a criminal investigation On October 30, 1980, District Attorney Tannery wrote a letter to Chief Gillian informing him of a change in the procedure Lawton police were to follow when they discovered suspected stolen property in pawnshops. The letter stated:
or prosecution. This was the Lawton police department practice in effect when Williams first discovered the property in Shady Sam's.
"Dear Chief Gillian:
After reviewing the applicable law, I would advise the use of the procedure used by Oklahoma and Tulsa Counties regarding stolen property recovered in pawn shops, to-wit:
1. Under the authority of 21 OS Sec. 1092 the officer and or true owner of merchandise should inspect the pawn shops for the stolen merchandise.
2. All stolen property found should be treated as if recovered from other parties. That means that the officers should seize the property and place it on property receipt in the custody of the police department.
3. Under 22 OS Sec. 1321 et seq. the magistrate will determine the disposition of the property.
Okla.Stat. tit. 21 Sec. 1092 (1981) requires a pawnbroker to permit a police officer to inspect the premises for stolen goods during usual business hours. 3 Okla.Stat. tit. 22 Secs. 1321 et seq. (1981) provides procedures to be followed when a police officer comes into possession of property allegedly stolen. Sections 1321 and 1322 provide that a magistrate must determine the true owner of any such property before the police may release it from their custody. 4 Coleman v. Faulkner, 697 F.2d 1347, 1348 (10th Cir.1982).
Gillian promulgated Tannery's letter to all members of the Lawton police department. On November 10, Williams and Bean returned to Shady Sam's and seized the two items Williams had previously identified and placed on hold. After giving Wolfenbarger a receipt for the items, Williams placed them in the Lawton police station property vault. Acting on District Attorney Tannery's behalf, Perrine sent a memorandum on November 13 to Williams directing him to release the two items to Logens. Williams complied the next day and gave the items to Logens. 5 Wolfenbarger was not notified of the property's release nor was there any judicial determination of the property's ownership before Perrine ordered it released.
Immediately after Williams seized the two items, Wolfenbarger brought a replevin action against him in state court. After Williams gave the items to Logens, the court declared the replevin action moot because
Williams no longer had possession. Thereafter, Wolfenbarger brought this action in federal court alleging that defendants' conduct had deprived her of her right to due process under the United States Constitution. The district court held that Wolfenbarger, as a holder of stolen goods, had no constitutionally protected property right in the items and thus could not claim a due process violation. The court granted summary judgment in favor of defendants.
In evaluating Wolfenbarger's due process claim we look to Oklahoma law to determine the nature and extent, if any, of her property interest in the stereo items. 6 See Bishop v. Wood, 426 U.S. 341, 344, 96 S.Ct. 2074, 2077, 48 L.Ed.2d 684 (1976); Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972). A pawnbroker, as the pledgee of pledged property, does not hold title to the property under Oklahoma law. Miller v. Horton, 69 Okl. 147, 170 P. 509, 511 (1917). Legal title remains in the pledgor and possession only passes to the pawnbroker, who has a special property interest in the item pledged until the obligation secured by the pledged property is satisfied. Id. The district court concluded, and defendants argue on appeal, that because Wolfenbarger had no title to the stereo items and could not prevail in a suit against the true owner, she therefore had no constitutionally protected property rights. We disagree.
It is true that under Oklahoma law, no one can confer a better title than he has. Wolfe v. Faulkner, 628 P.2d 700, 702 (Okla.1981); Al's Auto Sales v. Moskowtiz, 203 Okl. 611, 224 P.2d 588, 591 (1950); see also Okla.Stat. tit. 12A, Sec. 2-403(1) (1981) (). Since the true owner of the property cannot be divested of his ownership by a thief without his consent, even an honest pawnbroker cannot hold stolen property as against the true owner. Adkisson v. Waitman, 202 Okl. 309, 213 P.2d 465, 466 (1949). However, Wolfenbarger's lack of title is irrelevant to the existence of her rights in the property as against defendants. Under Oklahoma law, one who possesses property without having title to it nonetheless has a recognized property interest.
First, a pawnbroker's special property interest will support an action for replevin. See Williams v. Williams, 274 P.2d 359, 362 (Okla.1954); cf. Riesinger's Jewelers, Inc. v. Roberson, 582 P.2d 409, 411 (Okla.App.1978). In such an action the question of ownership and the right to possession is for the trier of fact. Henderson v. Lacy, 347 P.2d 1020, 1021 (Okla.1959). In addition, possession is prima facie proof of ownership. Al's Auto Sales, 224 P.2d at 591. Because there had been no judicial determination of either the property's ownership or the right to possess it, Wolfenbarger's possession was prima facie proof that she was entitled to retain the stereo equipment at the time defendants confiscated and turned it over to Logens.
More importantly, the Oklahoma Supreme Court has held that even one who acquires stolen property from a thief has a lawful and enforceable property interest in such property. In Snethen v. Oklahoma State Union of the Farmers Educational & Cooperative Union, 664 P.2d 377 (Okla.1983), the court was faced with deciding the property rights of a good-faith purchaser of stolen property. While acknowledging that a purchaser under defective title could not hold against the true owner, the court noted that the purchaser has a "qualified possessory interest" and has "lawful possession against all the rest of the world." Id. at 381. The court distinguished
between "legal" and "lawful" property interests, and stated:
Id. (emphasis added).
Although the ultimate issue in Snethen was whether one could have an insurable interest in stolen property, its reasoning and holding also apply to this case and refute the argument that Wolfenbarger had no legally protected property interest in the stereo equipment. The record does not indicate, nor do defendants allege, that Wolfenbarger was anything but an innocent pawnbroker who gave value for a pledge of stolen property. Like a good-faith purchaser for value, an innocent pledgee's lack of title does not defeat the lawfulness of her possession, nor does it diminish her rights against the rest of the world, including defendants in this case.
Finally, the relevant Oklahoma statute itself demonstrates that the holder of stolen property has some protected interest, because the state has provided for a judicial determination of ownership or possession prior to the return or release of seized property. See ...
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