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What rights do I Have?

Discussion in 'Lost & Stolen Gear' started by SubNoizeRat3691, Mar 15, 2012.


  1. funkcicle

    funkcicle

    Jan 9, 2004
    Asheville, NC
    Any updates? I just re-read the OP and I see that the original owner did indeed file a police report. Is he in a position to "buy" the bass back from you for what you paid for it? That is the easiest route to make everybody happy, as he stands the best chance of winning a case against the person who sold the bass to the pawn the shop. It also avoids having to tie the bass up as "evidence" for months, which is what could happen if he chooses to go through the courts to get the bass back... this is an unlikely scenario (cops are more likely to bully you into handing the bass over to him- they don't want the hassle of having to do it legally), but it's not impossible.

    Neither the pawn shop nor the friend who sold it to you have any culpability in the matter (presuming that the pawn shop is in compliance with your local transaction-reporting ordinances). It may be worth consulting an attorney on how to proceed- for all intents and purposes, the bass is legally yours at this juncture. I'm not saying you need to try to keep it, but by simply handing it over to the cops (which is what they will pressure you to do) or the original owner you could also be giving away any chance you have at getting your money back. The police will only be looking at this in terms of closing the original case, and unless you are in a VERY small town it is not likely that they will be at all interested in helping you get your money back. The fact that it was sold to a pawn shop and the police did not find it despite there having been a police report filed points to potential negligence on their part- I wouldn't expect them to put much more attention into this case.

    In the few years I worked in pawn shops, anytime the police came after an item that the shop had already sold they more or less called it "too late" as the item now legally had a new owner. Their only recourse in that scenario was to go after the original thief for punitive damages. The laws vary from state to state, but most pawn shops are required to hold all inventory for a period of time (anywhere from 7 to 90 days, in some instances a full year) before they are allowed to sell it. This is to give law enforcement an opportunity to locate stolen merchandise. Once that waiting period passes though, and an item in their possession hits the sales floor, it is legally theirs to sell.

    Good luck to you and everybody involved, I hope you are able to work out a fair resolution for everybody!
     
  2. SubNoizeRat3691

    SubNoizeRat3691 Lovin' the lows Gold Supporting Member

    Feb 1, 2010
    Davenport, IA
    WAIT!!!
    So I am the legal owner of the instrument???? I was told by the Chief of the Sheriffs office that I was required to return the bass to the original owner and I was out my money too...

    now I'm confused... :help:
     
  3. Stumbo

    Stumbo Guest

    Feb 11, 2008
    Your buddy sold you stolen merchandise. He can't profit from it either, just like you have to give the bass back, he has to give your money back.

    Ask the Chief if they can tell your buddy to give your money back.

    Otherwise you gotta take your buddy to court. See the link below for free legal advice.
     
  4. funkcicle

    funkcicle

    Jan 9, 2004
    Asheville, NC
    Untrue. Police do NOT have the authority to transfer property from one individual to another, only a court can do that. This is a perfect example of how, even though he has nothing to hide, OP does have something to lose by co-operating with law enforcement. They are only going to do what will most easily serve their interests. If they can bully OP into just handing over the bass, and convince OP that he has no rights and his money is "gone", then their job is DONE in their eyes.

    I have dealt with this literally hundreds of times and I've seen virtually every possible outcome from this scenario. SubNoizeRat3691: consult an attorney. If the chief of the Sheriff's office contacts you again, very politely tell him that you don't yet understand your rights and are not comfortable talking about the case without first consulting an attorney. Don't be confrontational about it, just be honest.

    I don't know how different the laws might be in Iowa, but if you were in North Carolina you would be considered the de facto owner of that instrument. The police would very likely still attempt to bully you into handing it over because that makes their job easier, but in the end their job is to catch the thief who sold it to the pawn shop in the first place, and bring him or her before the court so it can determine restitution to the original victim.

    Best case scenario in this situation is what I described above: a lawyer properly counsels you, police see that you won't be bullied so they follow up on their other leads (Pawn Shop records). Thief is caught, court awards original victim the cost of the instrument, original victim buys bass off of you: everybody wins.

    Worst case scenario: you assert your rights without consulting a lawyer. Police step up their bullying, possibly even arresting you even though they know you haven't committed a crime, but they charge with something trivial and offer to drop the charges if you hand over the bass (this is a common tactic). Bass is confiscated as evidence. Ideally nothing comes of it because no prosecutor will mount a case against you, but there's no guarantee. bass sits in limbo indefinitely while neither you nor the victim has access to it.

    This is why you need to consult an attorney. Everything I've told you is from extensive experience dealing with law enforcement on stolen or potential stolen property, but I am not a lawyer. It is very important that you consult an actual attorney and find out what your rights are. Good luck!
     
  5. funkcicle

    funkcicle

    Jan 9, 2004
    Asheville, NC
    incidentally, this this thread is what prompted me to post this thread. This is a perfect example of an instance where one should not talk to the police, even though they have nothing to hide. Nothing to hide != nothing to lose.
     
  6. Bassamatic

    Bassamatic keepin' the beat since the 60's

    I know that the laws may vary from state to state - but I managed a pawn shop here in L.A. We were REQUIRED to fill out a form for EVERY item pawned or purchased and turn them into the police, who picked them up at least twice a week. We were REQUIRED to list serial numbers and identifying marks and wait 3 weeks for it to clear before we could sell it.

    If the pawn shop in your area was required to do the same (likely) and didn't he can be in deep doo doo for receiving stolen property. He may want to settle BEFORE you go to the cops.
     
  7. funkcicle

    funkcicle

    Jan 9, 2004
    Asheville, NC
    ^^^ true. Everything I posted is on the assumption that the pawn shop was operating in good faith. If that is the case then OPs posts point to negligence on the part of the police agency investigating the theft, which is why he needs to consult a lawyer. I just looked up the law in Iowa and it looks like pawnbrokers are required to upload daily reports of all of their transactions... if they use the same system I used to use then it works passively to match pawn transactions to police reports that are fed into the same system. In my experience, it was not uncommon for detectives to neglect to check the database and then look for an "easy way out" (in this case: bullying the OP rather than working the case legally)... but I have heard of shady pawn shops that 'cut corners' in their transaction reporting, it's not impossible.
     
  8. SubNoizeRat3691

    SubNoizeRat3691 Lovin' the lows Gold Supporting Member

    Feb 1, 2010
    Davenport, IA
    I forgot to mention that the pawn shop was in Illinois... The bass was bought in Rock Island Illinois, by my buddy that lives in Bettendorf Iowa. I live in Davenport Iowa, idk if that makes a difference having been brought into another state.
     
  9. Stumbo

    Stumbo Guest

    Feb 11, 2008
    Check the Free Legal Advice in my sig. below. Maybe they can help you. Or possibly there is a free/low cost Legal Aid organization near you.
     
  10. Darnell Jones

    Darnell Jones Inactive

    Aug 29, 2011
    Oh dear lord, please do not call the police and tell them you are in possession of stolen property and make a full confession. This is a crime. Cops love busting people for crimes, it makes them look good. You would be handing them one for free and they're likely not going to be interested in the crime you're a victim of.

    Morally you should give it back, the police in most cases will just make your life miserable and may file criminal charges against you. The chance of them doing anything to get your money back is miniscule. They're going to tell you to go to small claims court, which is cop talk for F off.
     
  11. The bad news is the bass has to go back to the rightfull owner, and the good news is that you probably won't face any charges for possession of stolen property.

    You can never have legal title to stolen property - there are some real horror stories in the collector car hobby about valuable vehicles going through six-figure restorations only to be later determined to have been reported stolen years back, and the vehicle has to go back to the legal owner - great news for them, and the poor guy that dumped 100K + into it takes it in the shorts.

    You may have legal recourse against the individual who sold you the bass.
     
  12. Not where I worked for 15 years and retired from.

    The local LEA isn't a collection agency for individuals - the claim for the op's purchase money would be a civil case, not criminal.
     
  13. Incorrect:

    Nemo dat quod non habet - Wikipedia, the free encyclopedia

    http://rile.brinkster.net/Thesis/Ohvall.pdf

    The sale of stolen property, even in full compliance of state statute at time of sale, does not automaticlly transfer legal title of that property to the buyer.

    California law on the subject:

    Quoting People v. Hernandez (2009) 172 Cal. App. 4th 715
    --------------------------------------------------------------------------------

    Under California law, a person pawning property pledges it, transferring temporary possession of the property and a security interest in it to the pawnbroker. (Fin. Code, § 21000 [a pawnbroker receives goods "in pledge as security for a loan"]; People v. MacArthur (2006) 142 Cal.App.4th 275, 281 [47 Cal.Rptr.3d 736].) If the pledgor fails to redeem the "pledged property" by repaying the loan and any applicable charges within the specified loan period, title to the property passes to the pawnbroker and the property becomes "vested property." (Fin. Code, §§ 21002, 21201.)

    Here, the record does not reflect the status of the property when the court issued its ex parte order. At a minimum, however, the pawnbrokers had a possessory interest in the pawned property entitling them to due process protection. (Fuentes, supra, 407 U.S. at p. 86, quoting Boddie v. Connecticut (1971) 401 U.S. 371, 379 [28 L.Ed.2d 113, 91 S.Ct. 780] [right to due process extends to "any significant property interest"]; G & G Jewelry, Inc. v. City of Oakland (9th Cir. 1993) 989 F.2d 1093, 1098 (G & G Jewelry) ["[P]awnbroker, as pledgee, has a legitimate possessory interest in the property as against the rest of the world except the person having title to the property."].)

    (7) We reject the People's contention that the pawnbrokers lost any right to claim ownership of the property when defendants admitted stealing the property. While it is generally true that a thief cannot pass title to stolen property and that the true owner can reclaim the property from whoever has possession (Suburban Motors, Inc. v. State Farm Mut. Auto. Ins. Co. (1990) 218 Cal.App.3d 1354, 1359-1361 [268 Cal.Rptr. 16]), the People's argument improperly assumes that the individuals claiming ownership were the lawful owners of the property. However, a crime victim claiming to be the true owner of stolen property might be mistaken or there could be multiple crime victims claiming to be the lawful owner of the same piece of property. Until there is a judicial determination of any competing claims, a pawnbroker's possessory interest in the property constitutes a sufficient property interest warranting due process protection.

    In any event, "[t]he right to be heard does not depend upon an advance showing that one will surely prevail at the hearing." (Fuentes, supra, 407 U.S. at p. 87; Wolfenbarger v. Williams (10th Cir. 1985) 774 F.2d 358, 361 [issue of whether pawnbroker will lose rights in stolen property is irrelevant to due process claim].) Stated differently, the fact that a pawnbroker's claim to the property is disputed does not negate the pawnbroker's property interest or the pawnbroker's right to procedural safeguards mandated by the due process clauses of the federal and state Constitutions. (U.S. Const., 5th & 14th Amends.; Cal. Const., art. I, § 7.)

    (8) Accordingly, the ex parte order giving the police or the previously identified crime victims the property must be reversed because it violated the pawnbrokers' procedural due process right to notice and an opportunity to be heard.

    Finally, the ex parte order completely disregarded the statutory scheme pertaining to property in possession of a pawnbroker placed on hold by law enforcement. Where, as here, property reported as stolen is no longer needed for a criminal investigation, section 21647 requires the law enforcement agency that placed the hold on the property to inform the person who reported the stolen property that she must take "action to recover the property from the pawnbroker" within 60 days of the mailing of the notice and if this is not done the pawnbroker can treat the property as other property received in the ordinary course of business. (§ 21647, subd. (c)(3).) Nothing in section 21647 authorizes a court, the People or law enforcement to take the property from the pawnbroker and give it to the person claiming ownership. Rather, the statute expressly indicates that the person who reported the property as stolen must take some action to recover the property from the pawnbroker after receiving the required notice. (G & G Jewelry, supra, 989 F.2d at p. 1096 ["The statutory procedures do not purport to resolve ownership of the property; they only dictate which party is entitled to possess the property until ownership is resolved by negotiation, agreement, or by some sort of civil litigation."].)

    With this said, we see no reason why the criminal court cannot provide a venue for the resolution of this issue or why law enforcement cannot lend assistance to crime victims in the recovery of their property. One possible way to settle the matter would be for law enforcement to seize the property that it placed on hold (Fin. Code, § 21206.8), thereby allowing the issue to be resolved via the existing statutory procedures that specifically provide for the return of stolen property to its victim-owner by the court having jurisdiction over the criminal matter (Pen. Code, §§ 1407 et seq. & 679.02, subd. (a)(9) [crime victims have a statutory right to "expeditious return of his or her property which has allegedly been stolen or embezzled, when it is no longer needed as evidence, as provided by Chapter 12 (commencing with Section 1407) and Chapter 13 (commencing with Section 1417) of Title 10 of Part 2"])
     
  14. Darnell Jones

    Darnell Jones Inactive

    Aug 29, 2011
    You're answer confused me, it seems to be contrary but makes the same point :)
     
  15. SubNoizeRat3691

    SubNoizeRat3691 Lovin' the lows Gold Supporting Member

    Feb 1, 2010
    Davenport, IA
    Now I'm lost, That is the law in California??? What about Iowa/Illinois? So I currently have the bass, giving it to the police (not my first option) would be a confession, arguing with them when the come to seize it is ill-advised?

    Do they have the power to take it from me if they come for it? Many have said no, they would need a court order. I'd rather not be arrested though.

    Is all this trouble worth $400????
     
  16. Darnell Jones

    Darnell Jones Inactive

    Aug 29, 2011
    Find a local free legal help group and talk to them. Almost all expert advice on the internet is wrong.

    Morally there is no question. If one accepts reselling stolen goods makes them legal then I could steal all your stuff, sell it to my brother and he would own it legally.
     
  17. Stumbo

    Stumbo Guest

    Feb 11, 2008
    I suggest you tell that to your buddy who will only "legally" return you money.

    He ended up with your money and backed out of the situation with his doubtful legal theory.

    +1 to finding a legal aid group in your area for help. Unless you get a consultation, reading all this stuff in TB won't really help you because it doesn't inform you of what your specific rights are in this case.

    Otherwise, I suggest you give the bass back to the original owner and stop spending all this time trying to figure things out on your own. You're not an experience lawyer and most likely come to the wrong course of action causing you more trouble, trouble that may cost you more than $400 in the long run.

    Btw, returning the bass is the right thing to do just as much as your buddy returning your money.

    Good luck.
     
  18. funkcicle

    funkcicle

    Jan 9, 2004
    Asheville, NC
    any updates? I'm curious as to how this turned out.
     
  19. SubNoizeRat3691

    SubNoizeRat3691 Lovin' the lows Gold Supporting Member

    Feb 1, 2010
    Davenport, IA
    Ok, so thus far, I am still waiting for the detective to contact me. The bass is still in my possession. What I've heard from my friend is that the detective would like to work this out so I do not experience a loss, he determined it was the Pawn Shop's fault and I should not be out $400.

    I do not actually know what will happen yet, because no one has contacted me.
     
  20. Eric Swaim

    Eric Swaim GOD, U.S. MIlitary, Country Supporting Member

    Sep 21, 2004
    Murfreesboro, TN
    This happened to me back in 1995, I bought a bass from a pawn shop here is Nashville it was a Kubicki and it ended up being stolen. I returned the bass to the owner and the police helped me get my money back from the pawn shop. The pawn shop put all the right number from the serial number except one. Long story short, I got my money back, the owner got his bass back, and everyone could sleep well at night. No matter how much you paid for it, it's better to do the right thing than have a guilty feeling about the experience.
     
  21. Primary

    Primary TB Assistant

    Here are some related products that TB members are talking about. Clicking on a product will take you to TB’s partner, Primary, where you can find links to TB discussions about these products.

     
    Apr 15, 2021

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