{"id":522,"date":"2006-10-30T07:48:15","date_gmt":"2006-10-26T23:34:40","guid":{"rendered":""},"modified":"2017-09-17T13:44:00","modified_gmt":"2017-09-17T18:44:00","slug":"en-us-235","status":"publish","type":"post","link":"https:\/\/fourthamendment.com\/?p=522","title":{"rendered":"Pawnshops are “closely regulated industries” and inspection of records for crime detection rather than a purely administrative purpose is not unreasonable; the fact state law may provide more rights provides no federal remedy"},"content":{"rendered":"

(At NACDL meeting in Boston. Been busy. Also, Wednesday passed the 1,000 daily visits mark for the first time. We reached 887 in one day earlier in October. Thank you for your support.)<\/em><\/p>\n

The Southern District of New York dealt with a civil case by a pawnshop that lost a $500 gold bracelet when the police came, inspected the records, and took the bracelet as potentially stolen property. It was clear that the police had an investigative motive. While the amount in controversy was not much, the court finds the issue significant, and it holds that the motive is irrelevant in a closely regulated industry. We Buy, Inc. v. Town of Clarkstown, New York, 2006 U.S. Dist. LEXIS 76792 (S.D. N.Y. October 20, 2006):<\/p>\n

We Buy does not quarrel with the constitutionality of the administrative scheme, nor does plaintiff claim that pawnshops are not a “closely regulated industry.” Plaintiff merely claims that its constitutional rights were violated when the police performed what would constitute a valid administrative inspection, with the true motive of investigating a crime, not simply ensuring compliance with the administrative scheme. Relying on Supreme Court cases like Horton v. California,<\/em> 496 U.S. 128 (1990) (“plain view” seizures need not be inadvertent; officer’s subjective hope to find evidence is irrelevant) and Whren v. United States,<\/em> 517 U.S. 806, 813 (1996) (constitutional reasonableness of traffic stop does not depend on subjective motivations of individual officer), the Ninth Circuit has noted that “if the scheme under which the administrative search is conducted is constitutional, the subjective motivation of the individual conducting the search will not invalidate the search.” United States v. Bulacan,<\/em> 156 F.3d 963, 976 (9th Cir. 1998) (reaching question of constitutionality of scheme even though officer admitted having criminal investigatory purpose); see also United States v. Bowhay,<\/em> 992 F.2d 229, 231 (9th Cir. 1993) (“When the police conduct [of an inventory search] would have been the same regardless of officer’s subjective state of mind, no purpose is served by attempting to tease out the officer’s ‘true’ motivation.”). In Burger,<\/em> the Court relied on the substantial overlap between the purposes of the administrative scheme and the penal law to validate the administrative search. Just as regulation of the business of automobile junkyards was intended to prevent traffic in stolen cars, regulation of the second-hand industry is intended to prevent traffic in stolen property. See Burger,<\/em> 482 U.S. at 706-07 & nn. 17-18 (noting similarities between regulation of automobile junkyards and second-hand dealers).<\/p>\n

This Court is of the opinion that We Buy’s case is more closely analogous to the situation in Burger<\/em> than in Johnson<\/em>. The actions of the police on Friday were even more restrained than the police in Burger<\/em>. They obtained consent (even if, as we assume, it was merely acquiescence to a claim of lawful authority) to review We Buy’s records. Unlike the federal agent in Johnson<\/em>, they were entitled to access to the records under the administrative scheme regulating the second hand dealer industry. When they discovered evidence of criminality, they obtained consent to investigate further under no claim of administrative authority. As in Burger the investigation they were pursuing was directly related to the goals of the administrative scheme. See<\/em> 482 U.S. at 713-14. The only Fourth Amendment violation that We Buy alleges is that the police examined its records. It is, however, difficult to see how We Buy could have a reasonable expectation of privacy in those records protected by the Fourth Amendment when they were subject to inspection by the police at any time under the administrative scheme. Cf. Katz v. United States,<\/em> 389 U.S. 347, 361 (1967) (Harlan, J., concurring) (Fourth Amendment applies when an individual has an actual expectation of privacy “that society is prepared to recognize as ‘reasonable'”). Therefore, even if Santiago’s consent was not valid, We Buy’s federally protected rights were not violated when the police reviewed the records.<\/p>\n

Plaintiff also relies on People v. Keta,<\/em> 79 N.Y.2d 474, 491 (1992), in which the New York Court of Appeals revisited the statute upheld in Burger as a matter of state constitutional law. The court in Keta<\/em> struck down the statute holding that, under article I, \u00a7 12 of the New York State Constitution, there is no exception to the warrant and probable cause requirements where an administrative search is “undertaken solely to uncover evidence of criminality and the underlying regulatory scheme is in reality, designed simply to give the police an expedient means of enforcing penal sanctions.” Id.<\/em> at 498 (internal quotation marks omitted). We Buy does not raise any claims under state law in the complaint, but instead appears to argue that because New York state law precludes pretextual use of administrative searches, plaintiff’s Fourth Amendment rights were violated when the police examined the records.<\/p>\n

This argument presents an interesting question of whether state law that is more protective of privacy rights than federal law creates a reasonable expectation of privacy under the Fourth Amendment that is expanded to match the state standard. In other words, can a citizen of New York reasonably rely on law enforcement officers following the more protective New York law, and thus reasonably expect a higher level of privacy under the conception of the Fourth Amendment that the Supreme Court set forth in Katz<\/em>? Though the question was not presented in these exact terms, it appears that the Second Circuit has answered in the negative.<\/p>\n

In a line of cases starting with United States v. Pforzheimer,<\/em> 826 F.2d 200 (2d Cir. 1987), the Second Circuit has consistently held that federal courts must apply the exclusionary rule under federal law in federal prosecutions, even if evidence was gathered by state officials in violation of state constitutional law and would be excluded in a state prosecution. Id.<\/em> at 203-04; accord, e.g., United States v. Workman,<\/em> 80 F.3d 688, 694-95 (2d Cir. 1996); United States v. Brown,<\/em> 52 F.3d 415, 420 (2d Cir. 1995), cert. denied,<\/em> 516 U.S. 1068 (1996); United States v. Smith,<\/em> 9 F.3d 1007, 1014 (2d Cir. 1993); see also United States v. Hogan,<\/em> 122 F.Supp.2d 358 (E.D.N.Y. 2000). n5 The court in Pforzheimer decided that federal law applied in a federal prosecution, rejecting arguments, based on principles of comity and a desire to avoid forum shopping, that evidence obtained solely by state agents in violation of state law should be excluded. 826 F.2d at 203-04. The court did not address the argument that the substantive protections of the Fourth Amendment are expanded because more protective state law creates a reasonable expectation of greater privacy, however the consistent holdings of the Second Circuit since that case seem to undermine plaintiff’s line of reasoning. Because evidence obtained in searches that violate state constitutional law has been regularly admitted in federal prosecutions, We Buy cannot reasonably claim an expanded expectation of privacy based on state law. Even if We Buy could show that the Pforzheimer<\/em> line of cases were wrongly decided, their consistent application precludes this Court from recognizing an expanded expectation of privacy under the Fourth Amendment based on more protective state law. This Court, therefore, need not decide whether the inspection of We Buy’s records was a violation of New York state constitutional law under Keta<\/em>.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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