united-states search-and-seizure fourth-amendment arizona
Do pawn shops have third-party consent authority for pawned items?
<p>In Phoenix, Arizona, Leslie Merritt Jr. has been arrested and charged in relation to a series of shootings that <a href="http://www.fox10phoenix.com/arizona-news/18732678-gallery">occurred along the I-10 corridor in Phoenix</a>.</p>

<p>In court filings, the Arizona Department of Safety (DPS) <a href="http://www.kpho.com/story/30072978/new-court-document-offers-1st-look-into-initial-freeway-shootings">alleges that a firearm pawned by Mr. Merritt</a> was forensically linked to the shootings.</p>

<p>When taking property to a pawn shop one can either sell the item to the pawn shop or pawn it. Pawning (also known as hocking) an item creates a relationship between the owner of the item and the shop. The owner of the item is giving the item to the shop to be used as collateral for a loan.</p>

<p>Pawn shops in the state of Arizona are required to report to police on a daily basis all property that is delivered to their custody. It was based on these reports that Arizona DPS visited the pawn shop, took control of the gun pawned by Mr. Merritt and conducted forensic tests.</p>

<p>In <a href="http://caselaw.findlaw.com/us-supreme-court/415/164.html">United States v. Matlock</a>, a case involving joint access to a home, the U.S. Supreme Court stated that someone with "common authority" had the ability to provide consent for a search. In a footnote, the Court stated that common authority meant</p>

<blockquote>
  <p>mutual use of the property by persons generally having joint access
  or control for most purposes, so that it is reasonable to recognize
  that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched</p>
</blockquote>

<p>It seems that a pawn shop does not have the "use of the property" as they are holding the property as collateral for a loan. Nor does it seem that Mr. Merritt would recognize that the pawn shop would be turning his property over to the police.</p>

<p>Assuming that Arizona DPS did not have a warrant to examine the firearm, does the relationship between Mr. Merritt and the pawn shop satisfy the requirements of third-party consent as outlined in <em>United States v. Matlock</em>?</p>

<p>Is there any case law that would seem to allow the pawn shop to grant consent for a forensic examination of property they hold as collateral?</p>

<p>What if that forensic examination resulted in the destruction of or damage to pawned property as it seems that the pawn shop has a fiduciary responsibility to safeguard the owner's property?</p>

<p><strong>EDITED TO PROVIDE FURTHER CLARIFICATION:</strong></p>

<p>The transactional records of a pawn shop have long been available to the government. There is no expectation of privacy for the customer of the pawn shop for any information related to the transaction. The transaction record is a record owned by the business and, as an industry with a history of government oversight, those records can be inspected by the government.</p>

<p>Those inspection powers only go so far. The United States District Court of the Southern District of New York held in <a href="http://lawofpawn.com/pages/searches-and-seizures">5 Borough Pawn, LLC v. City of New York</a> that there are limits to the intrusion:</p>

<blockquote>
  <p>Must advise the owner of the commercial premises that the search is being made pursuant to the law and has a properly defined scope, and it <strong>must limit the discretion of the inspecting officers</strong>.</p>
</blockquote>

<p>There is no doubt that Mr. Merritt has no expectation of privacy regarding the record of his pawning his gun.</p>

<p>This question, though, is whether or not Mr. Merritt has an expectation of privacy concerning what remains his property that happens to be in the possession of the pawn shop.</p>

<p>In <a href="http://www.gpo.gov/fdsys/pkg/USCOURTS-tned-3_13-cr-00110/pdf/USCOURTS-tned-3_13-cr-00110-0.pdf">United States v. Timothy Sanders</a>, the United States District Court in the Eastern District of Tennessee found that a defendant, Timothy Sanders, did not have an expectation of privacy regarding firearms he had <strong>sold</strong> to a pawnshop. In that case the testimony highlights the issue of sold v. pawn:</p>

<blockquote>
  <p>He stated the purchase receipts show that the guns were sold, not pawned, to the pawn shop.</p>
</blockquote>

<p>In the case of Mr. Merritt, he reportedly pawned his property. The gun was pledged as collateral for a loan and the pawn shop possessed that collateral though, until Mr. Merritt defaulted on the loan, ownership of the property remained with Mr. Merritt.</p>

<p>The pawn shop has a duty to protect that property. If that property becomes damaged, lost or stolen then the pawn shop will owe damages to the owner. The pawn shop acts as a bailee of the property and Mr. Merritt is the bailor.</p>

<p>Are there other situations where a bailor has sufficient authority to consent to a search of property they don't own, e.g. an automobile located in a private for-pay parking lot?</p>

<p>What about pawn shops would allow the government to <em>extend their examination beyond the records of the pawn shop</em> without probable cause that a particular item was used in the commission of a crime?</p>

<p>The pawn shop has the "use of property" of their own premises. The pawn shop has obviously the right to examine the gun to determine its value, for example, or to clean it if it needs cleaning to avoid damage, or to show it to a potential customer. And the pawn shop is allowed to let the police onto their own premises, even without a search warrant. </p>

<p>From US v Sumlin 567 F.2d 684 at 688 (6th Cir. 1977)</p>

<blockquote>
  <p>The holding of <em>Matlock</em> focused on whether or not the "permission to
  search was obtained from a third party who possessed common authority
  over or <strong>other sufficient relationship to the premises or effects
  sought to be inspected.</strong>"</p>
</blockquote>

<p>I'd hang my argument on this last part - sufficient relationship to the effects. If you came back arguing that the relationship does not establish sufficient authority I'd move on to expectation of privacy. </p>

<p>The court continues</p>

<blockquote>
  <p>There is no reasonable expectation of privacy to be protected under
  such circumstances.</p>
</blockquote>

<p>They are not saying the expectation of privacy is decreased. They say there is <strong>no</strong> expectation of privacy. Now, the facts are different from the pawn shop as <em>Sumlin</em> is about co-occupants, but there is room to argue that there is less expectation of privacy in the pawned gun because at least as a co-occupant you have equal access, 24/7 and equal to your co-occupant. But I'll stop here until I find a pawn shop case. </p>

<p>I agree that as far as the gun is concerned the pawn shop does not have use of the property but I'd say they do have sufficient relationship to the effects to consent.</p>

<p>EDIT: to address edits to the question.  </p>

<p>I terms of the bailment parking lot analogy: would it matter if the parking lot was one where they take your keys and move your car around? What if it was a parking lot where they detail your car while you are gone? I say, yes it matters and the pawn shop is more like the detailer. </p>

<hr>

<p>As an afterthought, what gets me is the forensics. Based on the bullets and fragments, forensics determined that they were fired from a particular range of serial numbers. I had no idea it worked that way. And then when the gun was found it matched the bullets. I curious to know how accurate these matches are.</p>

<p>But if the search in this case is allowed, then I foresee a mobile forensics lab that visits pawn shops and fires every gun matching based on caliber alone, arresting people who have a barrel match. You can't knock on the homeowner's door and get the guns, but you can get them at the pawn shop. So yeah, it's problematic. Moral to the story is don't pawn your guns if you don't want them searched i.e. fired. </p>
