Horner v. State

836 P.2d 679, 1992 WL 190410
CourtCourt of Criminal Appeals of Oklahoma
DecidedAugust 4, 1992
DocketF-90-0052
StatusPublished
Cited by6 cases

This text of 836 P.2d 679 (Horner v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Horner v. State, 836 P.2d 679, 1992 WL 190410 (Okla. Ct. App. 1992).

Opinions

OPINION

BRETT, Judge:

Appellant, Larry A. Horner, was tried by a jury for six (6) counts of the crime of Possession of a Stolen Vehicle, in violation of 21 O.S.1981, § 151, in Case No. CRF-88-77, in the District Court of Osage County. The jury returned verdicts of guilty and assessed punishment at two (2) years imprisonment and a one thousand (1,000) dollar fine on each count. The trial court sentenced the appellant accordingly. From this Judgment and Sentence, the appellant has perfected his appeal to this Court.

On May 6, 1988, four Tulsa police officers, two deputies from the Osage County Sheriffs Department, and a staff member from the Oklahoma Used Motor Vehicle & Parts Commission arrived at appellant's automobile salvage business. The group conducted a warrantless administrative investigation under the authority of 47 O.S.Supp.1988, § 591.6. Pursuant to this statute, the group investigated the business’ records and a number of vehicles and automobile parts.

On May 13, 1988, several officers and deputies returned to the same premises to execute a search warrant which had been obtained based upon information gained during the initial inspection. Once again, several items including stolen vehicles and automobile parts were found.

Two days later, on May 15, 1988, two deputies of Osage County conducted a war-rantless search of land upon which appellant had an oil production lease. This land was located approximately two miles from the salvage yard. This search revealed additional stolen vehicles which were subsequently seized.

In his first proposition of error, the appellant contends that the initial inspection was nothing more than an invalid search conducted in violation of his fourth amendment rights under the United States Constitution. He specifically claims that the statute which authorizes such administrative inspections, 47 O.S.Supp.1988, § 591.6, is unconstitutional. In support of this argument, appellant cites several Supreme Court cases which deal with varying aspects of fourth amendment protections against unreasonable searches and seizures: Camera v. Municipal Court of the City and County of San Francisco, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967), See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967), and Marshall v. Barlow’s Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978).

In Camera, the United States Supreme Court found that an ordinance authorizing building inspectors to inspect a private residential area of an apartment building without a warrant was unconstitutional on its face. The Court in See then determined that the fourth amendment protections addressed in Camera applied to similar inspections of commercial structures not used as private residences. In Marshall, the Supreme Court upheld a District Court’s ruling that the fourth amendment required a warrant for the search of a business premises’ work area for safety hazards and regulatory violations.

Although the Supreme Court found in each of these cases that the warrantless administrative search was unconstitutional, the Court noted that there is a “carefully defined class of cases” wherein warrant-[681]*681less searches of private property will not be deemed unreasonable. Camera, 387 U.S. at 528-29, 87 S.Ct. at 1731. One such exception to the search warrant requirement was recognized in Colonnade Catering Corp. v. United States, 397 U.S. 72, 90 S.Ct. 774, 25 L.Ed.2d 60 (1970). In Colonnade, the Court found that a business licensed to deal in liquor could be fined for refusal to submit to an administrative search conducted without a warrant pursuant to liquor regulatory laws. In departing from the general rule set forth in Camera and See, the Court found it significant that the liquor industry has been “closely regulated” and “long subject to close supervision and inspection.” Colonnade, 397 U.S. at 74, 77, 90 S.Ct. at 776, 777. The import of this was noted again in Marshall wherein the Supreme Court found that “[t]he element that distinguishes ... [closely regulated businesses] ... from ordinary businesses is a long tradition of close government supervision, of which any person who chooses to enter such a business must already be aware.” Marshall, 436 U.S. at 313, 98 S.Ct. at 1821.

In a more recent case very factually similar to the one at bar, New York v. Burger, 482 U.S. 691, 107 S.Ct. 2636, 96 L.Ed.2d 601 (1987)1, the Supreme Court further explained this exception to the search warrant requirement. The Court in Burger found that to be reasonable, war-rantless inspections of pervasively regulated businesses must meet a three part test:

First, there must be a “substantial” government interest that informs the regulatory scheme pursuant to which the inspection is made.
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Second, the warrantless inspections must be “necessary to further [the] regulatory scheme.”
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Finally, “the statute’s inspection program, in terms of the certainty and regularity of its application, [must] provid[e] a constitutionally adequate substitute for a warrant.” In other words, the regulatory statute must perform the two basic functions of a warrant: it 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 must limit the discretion of the inspecting officers. To perform this first function, the statute must be ‘sufficiently comprehensive and defined that the owner of commercial property cannot help but be aware that his property will be subject to periodic inspections undertaken for specific purposes.’ In addition, in defining how a statute limits the discretion of the inspectors, ... it must be ‘carefully limited in time, place, and scope’ (citations omitted).

Burger, 482 U.S. at 702-03, 107 S.Ct. at 2644.

In order to apply the Burger test to the present case, we must first determine whether the appellant was engaged in a closely regulated business. The Oklahoma Automotive Dismantlers and Parts Recy-cler Act, 47 O.S.1981, § 591.1 et seq., requires that automotive dismantlers obtain a license and pay a fee for such license. They must also keep a register of all purchases and sales. These records must be made available for inspection. Further, there is a criminal penalty for failure to comply with these requirements. Because the requirements to which the automotive dismantlers are subject in Oklahoma are equally intrusive as those noted by the Supreme Court in Burger, 482 U.S. at 704-05, 107 S.Ct. at 2644-45, we find that the nature of Oklahoma’s regulatory statute indicates that the operation of an auto salvage yard is a “closely regulated” business in Oklahoma.

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Horner v. State
836 P.2d 679 (Court of Criminal Appeals of Oklahoma, 1992)

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Bluebook (online)
836 P.2d 679, 1992 WL 190410, Counsel Stack Legal Research, https://law.counselstack.com/opinion/horner-v-state-oklacrimapp-1992.