BILL ANALYSIS �
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|SENATE RULES COMMITTEE | SB 762|
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UNFINISHED BUSINESS
Bill No: SB 762
Author: Hill (D)
Amended: 8/21/13
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE : 7-0, 4/23/13
AYES: Hancock, Anderson, Block, De Le�n, Knight, Liu, Steinberg
SENATE JUDICIARY COMMITTEE : 6-1, 4/30/13
AYES: Evans, Walters, Corbett, Jackson, Leno, Monning
NOES: Anderson
SENATE APPROPRIATIONS COMMITTEE : Senate Rule 28.8
SENATE FLOOR : 31-2, 5/20/13
AYES: Beall, Berryhill, Block, Calderon, Cannella, Corbett,
Correa, De Le�n, DeSaulnier, Evans, Fuller, Galgiani, Hancock,
Hernandez, Hill, Hueso, Huff, Jackson, Knight, Leno, Lieu,
Liu, Monning, Padilla, Steinberg, Torres, Walters, Wolk,
Wright, Wyland, Yee
NOES: Anderson, Gaines
NO VOTE RECORDED: Emmerson, Lara, Nielsen, Pavley, Price, Roth,
Vacancy
ASSEMBLY FLOOR : 68-1, 9/4/13 - See last page for vote
SUBJECT : Secondhand goods: lost, stolen, or embezzled items
SOURCE : California Pawnbrokers Association
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DIGEST : This bill clarifies the interests of licensed
pawnbrokers and secondhand dealers relating to the seizure and
disposition of property during a criminal investigation or
criminal case.
Assembly Amendments revise and recast the bill with a similar
intent as it left the Senate.
ANALYSIS :
Existing law:
1. Includes criminal profiteering asset forfeiture that applies
where the defendant is convicted of a specified offense and
the defendant has engaged in a pattern of criminal
profiteering activity, as specified.
2. Provides that pawnbrokers and coin dealers shall report
daily on forms approved or provided by the Department of
Justice (DOJ), or electronically, as specified, all personal
property purchased, taken in trade, taken in pawn, etc., to
local law enforcement.
3. Provides that when a peace officer has probable cause to
believe that property, other than coins and precious metal
ingots, in the possession of a pawnbroker, secondhand dealer
or coin dealer is stolen, the officer may place a hold on the
property for up to 90 days.
4. Provides that where stolen or lost property (as listed in
the DOJ system) is found in the possession of a pawnbroker,
secondhand dealer or coin dealer, and a peace officer places
a hold on the property, the following shall apply:
If 60 days elapses following delivery of the required
notice to the reporting person, or the hold otherwise
elapses, the pawnbroker, secondhand dealer or coin dealer
may send, by certified mail, a request to delete the
property from the DOJ stolen or lost property or firearm
system.
Within 30 days of the mailing of the request, the law
enforcement agency shall have the listing deleted or place
a hold on the property.
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If law enforcement takes no action within 45 days, the
pawnbroker, secondhand dealer or coin dealer, may presume
the listing has been deleted and "deal with the property
accordingly."
1. Provides that where allegedly stolen property has been taken
from a pawnbroker, the officer, magistrate, court clerk or
other holder of the property shall not deliver the property
to a person claiming ownership unless the requirements have
been met, as specified.
2. Provides that where the ownership of stolen or embezzled
property can be ascertained, and where the address of the
owner and security holder can be ascertained, the officer in
custody of the property shall notify by mail the owner and
security holder, as specified.
This bill:
1. Clarifies that if a peace officer has probable cause to
believe that specified property in the possession of a
licensed pawnbroker or secondhand dealer is lost, stolen, or
embezzled, the peace officer may place a hold on the property
not to exceed 90 days.
2. Provides that a 90-day hold is created upon receipt by a
licensed pawnbroker or secondhand dealer of a written notice
from a peace officer that contains the following:
A. An accurate description of the property being placed
on the 90-day hold;
B. An acknowledgment that the property is being placed on
hold as specified, and denoting whether physical
possession will remain with the licensed pawnbroker or
secondhand dealer or will be taken by the law enforcement
agency instituting the 90-day hold;
C. The law enforcement agency's police report or
department record number, if issued, for which the
property is needed as evidence; and,
D. The date the notice was delivered to the licensed
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pawnbroker or secondhand dealer that initiates the
specified notification period.
1. Provides that the hold will not exceed a period of 90
calendar days, but may be renewed as specified.
2. Provides that the hold may be renewed as often as required
for a criminal investigation or criminal proceeding by any
peace officer who is a member of the same law enforcement
agency as the peace office placing the hold on the property.
3. Permits a peace officer to either take physical possession
of the property as evidence, consistent with a peace
officer's right to a plain view seizure for a criminal
investigation or criminal proceeding, or to leave the
property in the possession of the licensed pawnbroker or
secondhand dealer as a custodian on behalf of the law
enforcement agency.
4. Requires the licensed pawnbroker or secondhand dealer to
maintain physical possession of the property placed on hold
and prohibits the property's release or disposal, except
pursuant to the written authorization signed by a peace
officer who is a member of the same law enforcement agency as
the peace officer placing the hold on the property.
5. Specifies that the hold terminates when the property is no
longer needed as evidence in a criminal investigation or
criminal proceeding at which time the property shall be
disposed of as specified.
6. Specifies that the hold shall not be applicable to secure
lost, stolen, or embezzled property found in the possession
of an unlicensed pawnbroker or secondhand dealer that has not
duly and correctly reported the acquisition as specified, and
allows in such circumstance, a peace officer having probably
cause to believe the property found in the possession of an
unlicensed pawnbroker or secondhand dealer is lost, stolen,
or embezzled, may seize the item or items consistent with the
legal authority granted to the peace officer.
7. Specifies that if property placed on hold is physically
surrendered or delivered to a law enforcement agency during
the period of the hold, the hold and the pawnbroker's lien
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against the property shall continue.
8. Clarifies that whenever a law enforcement agency has
knowledge that property in possession of a licensed
pawnbroker or secondhand dealer has been reported lost,
stolen, or embezzled, the law enforcement agency must within
two business days after placing a hold on the property notify
the person in writing who reported the property as lost,
stolen or embezzled.
9. Adds embezzled property to the list of property that may
require a hold.
10.Specifies that when property in possession of a licensed
pawnbroker or secondhand dealer which is subject to a hold is
no longer required for the purpose of an investigation or
criminal proceeding, the law enforcement agency that placed
the hold shall return the property to the licensed pawnbroker
or secondhand dealer from which it was taken if the law
enforcement agency took physical possession of the property.
11.Specifies that a licensed pawnbroker or secondhand dealer
shall not refuse a request to place property in their
possession on hold as specified when a peace officer has
probable cause to believe the property is lost, stolen, or
embezzled. If a licensed pawnbroker or secondhand dealer
refuses a request to place property on hold as specified, the
property may be seized with or without a warrant and the
peace officer shall issue a receipt as specified, left with
the licensed pawnbroker or secondhand dealer and specifies
that that property should be disposed of accordingly.
12.Specifies that if a search warrant is issued for the search
of a business of a licensed pawnbroker or secondhand dealer
to secure lost, stolen or embezzled property that has been
placed on hold, the hold shall continue for the duration that
the property remains subject to the court's jurisdiction and
specifies that when the property seized for a criminal
investigation or criminal proceeding has concluded the
property shall be disposed of as specified.
13.Specifies that if a civil or criminal court is called upon
to adjudicate the competing claims of a licensed pawnbroker
or secondhand dealer and another party claiming ownership or
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an interest in the property that is or was subject to a hold
as specified, the court shall award the possession of the
property only after due consideration is given as specified.
14.Specifies that a licensed pawnbroker or secondhand dealer is
not subject to civil liability for compliance as specified.
15.Specifies that if anyone makes a claim of ownership, the
person shall file a written statement, signed under penalty
of perjury, stating the factual basis upon which they claim
ownership or an interest in the property with person having
custody of the property shall notify the pawnbroker of the
claim by providing a true and correct copy of the claim to
the pawnbroker.
16.Specifies that in adjudicating the competing claims of a
pawnbroker and a person claiming ownership or an interest in
the property seized from a pawnbroker the adjudicating court
shall give due consideration to the specified effect on the
claim.
17.Specifies that at least 30 calendar days before any hearing
adjudicating any competing claims of a pawnbroker and a
person claiming ownership or an interest in the property, the
person having custody of the property shall deliver to the
pawnbroker a true and correct copy of the police report,
redacted as may be required by law and consistent with due
process of law, substantiating the basis of the seizure.
18.Provides that the return of property by a law enforcement
agency required to be made to a person claiming to be
entitled to possession of a lost or stolen vehicle is not
required if the report of the theft or loss of the vehicle
into the automated property system preceded the report of the
acquisition of the property by a licensed pawnbroker.
Comments
The Legislature has enacted various laws to curtail the
dissemination of stolen property and facilitate the recovery of
stolen property, including laws regulating pawnbroker and
secondhand dealer businesses, which may be utilized by
individuals attempting to sell or pawn stolen or embezzled
property.
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With the recent rise in the price of gold, individuals, who are
unlicensed to deal in the resale of secondhand goods, are
availing themselves of this opportunity to purchase gold and
jewelry items for resale. The author's office argues that this
unlicensed activity must be addressed.
In order to limit the potential for criminal transfer of
property, this bill enhances existing laws governing the
practices of unlicensed secondhand goods sales, and provide
additional due process protections to licensed pawnbrokers and
secondhand dealers.
FISCAL EFFECT : Appropriation: Yes Fiscal Com.: Yes
Local: Yes
SUPPORT : (Verified 9/4/13)
California Pawnbrokers' Association (source)
California Coin and Bullion Merchants Association
California Police Chief's Association, Inc.
OPPOSITION : (Verified 9/4/13)
California District Attorneys Association
ARGUMENTS IN SUPPORT : According to the author's office,
licensed secondhand dealers are required to report to local law
enforcement daily all transactions of this type. DOJ must also
be notified daily. Perhaps more importantly these items must be
held for 30 days for the purpose of inspection by law
enforcement. Law enforcement knows exactly where to go to
inspect because the items must be available at the permanent
address of the licensee. This bill describes to manner in which
police may put an unlimited number of 90-day "holds" on
merchandize suspected of being "lost, stolen, or embezzled" and
it should be noted that the police may physically take
possession of such items, but the status of the item is still a
hold, this preserves the property interest of the lender who has
perfected a lien on the property.
ARGUMENTS IN OPPOSITION : The California District Attorneys
Association states:
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[W]e remain concerned with the language in the bill that
governs the issuance of search warrants. Specifically, the
amendments to Business and Professions Code Section 21647
eliminate the authority of a peace officer to make an
immediate, plain view seizure of stolen property as recognized
in Christians v. Chester (1990) 218 Cal.App.3d 273. Before an
officer could make a seizure, the bill would require that he
or she has to give the pawnbroker written notification.
Additionally, we are generally concerned about attempted
statutory search warrant restrictions that are sought to
protect business interests. Law enforcement has a duty to
investigate and prosecute crime. The application for, and the
issuance of, search warrants are topics that are the subject
of much statute and volumes of case law. Jurisprudence
surrounding the lawful issuance of search warrants is a
balance between the right to be free from unlawful searches
and the necessity of law enforcement to enforce the law and
protect the public. The fiscal interests of one particular
industry should not trump this carefully struck balance and
respectfully, we feel this measure unduly restricts the
ability of law enforcement to do its job.
ASSEMBLY FLOOR : 68-1, 9/4/13
AYES: Achadjian, Alejo, Allen, Ammiano, Atkins, Bigelow, Bloom,
Bocanegra, Bradford, Brown, Buchanan, Ian Calderon, Campos,
Chau, Ch�vez, Chesbro, Conway, Cooley, Dahle, Daly, Dickinson,
Eggman, Fong, Frazier, Beth Gaines, Garcia, Gatto, Gomez,
Gonzalez, Gordon, Gorell, Gray, Grove, Hagman, Harkey, Roger
Hern�ndez, Holden, Jones, Levine, Linder, Logue, Lowenthal,
Maienschein, Mitchell, Morrell, Mullin, Nazarian, Nestande,
Olsen, Pan, Patterson, Perea, V. Manuel P�rez, Quirk,
Quirk-Silva, Rendon, Salas, Skinner, Stone, Ting, Wagner,
Waldron, Weber, Wieckowski, Wilk, Williams, Yamada, John A.
P�rez
NOES: Muratsuchi
NO VOTE RECORDED: Bonilla, Bonta, Donnelly, Fox, Hall,
Jones-Sawyer, Mansoor, Medina, Melendez, Vacancy, Vacancy
JG:k 9/5/13 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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