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Official Opinion 96-24

Official Opinion 96-24

December 24, 1996
To: 

District Attorney
Eastern Judicial Circuit

Re: 

Seizure and disposition by law enforcement agencies of stolen property acquired by pawn shops.

You have requested my opinion with respect to three issues arising from the seizure, holding, and disposition by law enforcement agencies of stolen property acquired by pawn shops. Initially, please note that this opinion is limited to issues of state law. Official Code of Georgia Annotated §§ 44-12-135 and 44-12-136 specifically authorize the municipal supervision and regulation of pawnbrokers, and the analysis of individual municipal regulations is not undertaken here.

You have inquired as to whether stolen property pawned at or purchased by a pawnbroker becomes the property of the pawn shop as a bona fide purchaser. Official Code of Georgia Annotated § 44-14-403(a) provides that a pawnbroker has a lien on goods pawned and may retain possession of the pledged goods until the lien is satisfied. However, this provision does not apply to a pawnbroker who acquires stolen property.

Official Code of Georgia Annotated § 16-8-7(a) states that:

A person commits the offense of theft by receiving stolen property when he receives, disposes of, or retains stolen property which he knows or should know was stolen unless the property is received, disposed of, or retained with intent to restore it to the owner. "Receiving" means acquiring possession or control or lending on the security of the property.

In Poole v. State, 144 Ga. App. 228, 230 (1977), the court held that "retention of stolen property which a person knows or should know is stolen without intent to restore it to the owner will sustain [a] conviction [for receiving stolen property] even where guilty knowledge at the time of the acquisition of the stolen property is not shown." See also Johnson v. State, 135 Ga. App. 768, 769 (1975) (holding that "after the fact knowledge" tends to show guilty retention and will sustain conviction). If a pawnbroker does not know at the time of acquiring an item that it is stolen property, but later discovers that the item has been stolen and retains it, the pawnbroker has committed the offense of theft by receiving stolen property.

Additionally, in Gordon v. Gulf Am. Fire and Casualty Co., 113 Ga. App. 755, 759 (1966), the court stated that "one who purchases stolen property, though in good faith, can acquire no title - hence no lawful interest." The court went on to note that "'the bona fide possession of stolen property does not give the holder any sort of title whatever.'" Id. at 757 (quoting Giles v. Citizens Ins. Co., 32 Ga. App. 207 (1924)). In Lovinger v. Hix Green Buick Co., 110 Ga. App. 698, 699 (1964) (citations omitted), the court found that good faith in the acquisition of stolen property was immaterial because:

"Whoever meddles with another's property . . . does so at his peril, and it makes no difference that in doing so he acts in good faith. . ." It is thus established that "[t]he fact that possession of stolen property, unlawful as against the true owner, may have been acquired in good faith will not prevent such possession from operating as a conversion against the true owner."

For these reasons, it is my opinion that stolen property acquired by a pawn shop remains the property of the original owner.

You have also inquired as to what action a law enforcement officer should take in relation to stolen property in a pawn shop "in plain view (on pawn shop records and on public display)." Official Code of Georgia Annotated § 44-12-137(a)(4) authorizes a law enforcement officer to inspect the permanent record book and goods in the possession of a pawnbroker at any reasonable time and makes it a misdemeanor for a pawnbroker to refuse such an inspection. This Code Section has been judicially construed as authorizing the warrantless inspection of pawn shop records. Howell v. Roberts, 656 F. Supp. 1150, 1153-54 (N.D. Ga. 1987) (citing Peterman v. Coleman, 764 F.2d 1416, 1421 (11th Cir. 1985) to support holding that inspection of the record book does not intrude on constitutionally protected privacy interest and is not Fourth Amendment search).

Under certain circumstances, a law enforcement officer may seize an object in plain view if the officer has a right to be in the position from which the object is seen. Dennis v. State, 166 Ga. App. 715, 717 (1983). The officer must have had a prior justification for being in a position to view the object and the "incriminating character [of the object] must also be 'immediately apparent.'" Horton v. California, 496 U.S. 128, 136 (1990). Additionally, "the officer . . . must have a lawful right of access to the object itself." Id. at 137.

If a law enforcement officer enters a pawn shop pursuant to O.C.G.A. § 44-12-137(a)(4) to inspect the record book and happens to observe an item whose incriminating character is "immediately apparent" on display or otherwise visible, the officer may seize the item under the plain view doctrine. Because inadvertence is not a necessary condition for a legitimate plain view seizure, a law enforcement officer may even seize such stolen property in plain view if the officer had reason to think the property would be found on display when the officer entered the pawn shop to look through the record book. See Nichols v. State, 210 Ga. App. 134, 136 (1993).

A different situation is presented when a law enforcement officer inspects the record book of a pawn shop, discovers information about a particular item of suspected stolen property, and finds that the item is not in plain view. Although O.C.G.A. § 44-12-137(a)(4) authorizes the inspection of any goods in the pawnbroker's possession, the court in Howell addressed "only the issue of whether the statute may properly authorize [a] warrantless search of the [record] book." 656 F. Supp. at 1154 n.3. However, the clear wording of O.C.G.A. § 44-12-137(a)(4) indicates that a law enforcement officer has the right to inspect any goods in the pawnbroker's possession. {1} Pursuant to such an inspection, an item of suspected stolen property may be seized if probable cause exists that the item is tangible evidence of the commission of a crime. See Nichols, 210 Ga. App. at 137.

In the alternative, a law enforcement officer may seek the consent of the pawnbroker or may obtain a search warrant before actually seizing suspected stolen property from a pawn shop. Instead of seizing an item, a law enforcement officer may also make photographs or other identification of the property. Under O.C.G.A. § 17-5-50(c), such identification or analysis of the property is admissible at trial in lieu of the original item.

Finally, you have inquired as to the disposition of suspected stolen property seized by a law enforcement officer. If the suspected stolen property is used as evidence in the criminal prosecution, and an adjudication of guilt is obtained, O.C.G.A. § 17-5-54 states that the property should be returned to the rightful owner. As discussed above, I have concluded that the rightful owner is the original owner and not the pawnbroker. In any event, any item of personal property seized by a law enforcement officer is ultimately subject, pursuant to O.C.G.A. § 17-5-54, to being retained, sold, or discarded unless the item is claimed or unless the item is needed for investigatory or evidentiary purposes. By way of information, O.C.G.A. § 17-5-50 outlines the procedure for a person, including the party from whom the property was seized, to claim ownership of suspected stolen property. That Code Section also details the circumstances under which a law enforcement agency can release the property to a person asserting an ownership claim.

Prepared by:

KYLE A. PEARSON
Assistant Attorney General


{1} The constitutionality of that portion of O.C.G.A. § 44-12-137(a)(4) authorizing the inspection of any goods in the possession of a pawnbroker is beyond the scope of this opinion and is not addressed herein.