State v. Larocco ( 1990 )

HOWE, Associate Chief Justice

(dissenting):

I dissent. I would affirm both convictions for the reasons expressed by the court of appeals in its opinion, State v. Larocco, 742 P.2d 89 (Utah Ct.App.1987). A majority of that court, relying on New York v. Class, 475 U.S. 106, 106 S.Ct. 960, 89 L.Ed.2d 81 (1986), held that the opening of the car door to cheek the VIN on the doorjamb in the instant case was not an unreasonable search. Judge Billings, relying on California v. Carney, 471 U.S. 386, 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985), came to the same conclusion.

In Class, the Court emphasized the many purposes served by the VIN:

The VIN is a significant thread in the web of regulation of the automobile. See generally 43 Fed.Reg. 2189 (1978). The ease with which the VIN allows identification of a particular vehicle assists the various levels of government in many ways. For the federal government, the VIN improves the efficacy of recall campaigns, and assists researchers in determining the risks of driving various makes and models of automobiles. In combination with state insurance laws, the VIN reduces the number of those injured in accidents who go uncompensated for lack of insurance. In conjunction with the State’s registration requirements and safety inspections, the VIN helps to ensure that automobile operators are driving safe vehicles. By making'automobile theft more difficult, the VIN safeguards not only property but also life and limb. See 33 Fed.Reg. 10207 (1968) (noting that stolen vehicles are disproportionately likely to be involved in automobile accidents).

Class, 475 U.S. at 111, 106 S.Ct. at 964, 89 L.Ed.2d at 88-89. The Court pointed out that one has a lesser expectation of privacy in a motor vehicle on the public highway than one does in his or her home. “[I]ts function is transportation and it seldom serves as one’s residence or as the repository of personal effects.” 475 U.S. at 112-13, 106 S.Ct. at 965, 89 L.Ed.2d at 89 (quoting Cardwell v. Lewis, 417 U.S. 583, 590, 94 S.Ct. 2464, 2469, 41 L.Ed.2d 325, 335 (1974) (plurality opinion)). The Court then noted that the factors which generally diminish the reasonable expectation of privacy in automobiles are applicable a fortiori to the VIN. “A motorist must surely expect that such regulation will on occasion require the State to determine the VIN of his or her vehicle, and the individual’s reasonable expectation of privacy in the VIN is thereby diminished.” 475 U.S. at 113, 106 S.Ct. at 965, 89 L.Ed.2d at 90.

In Class, after an automobile had been stopped for a traffic violation and the driver had exited, an officer opened the door to examine the VIN on the doorjamb. When he did not find it there, he reached into the interior of the car to move some papers obscuring the area of the dashboard where the VIN is located in later-model automobiles. In doing so, he saw the handle of a gun protruding from underneath the driver’s seat. The driver was charged with criminal possession of a weapon, and the issue arose whether the intrusion into the car which turned up the weapon was legal. The Court held that it was legal under the fourth amendment.

In the instant case, a majority of our court of appeals followed Class to conclude that the search was valid. The automobile was parked unlocked on a public street, which militates against any expectation of privacy in the VIN. The court pointed out that the intrusion was minimal; officers only opened the door and recorded the VIN. They did not search the interior of the car, and the inspection was much less intrusive than that allowed in Class, which permitted entry into the interior. The opening of the car door here did not lead to the discovery of an illegal article as in Class; nothing was found which served to incriminate defendant other than the VIN. The officer had probable cause to believe that the automobile was stolen — a fact not present in Class, which was the primary basis of the dissenting opinions in that case. This most minimal intrusion to inspect the VIN on the doorjamb (and not elsewhere) for perhaps its most important purpose, i.e., to assist in the detection of stolen automobiles, does not offend the fourth amendment under either the majority opinion or the dissenting opinions in Class or the opinion in California v. Carney.

I similarly believe that the opening of the car door here did not violate article I, section 14 of the Utah Constitution. One important purpose of the VIN is defeated if it is clothed with constitutional protection under the facts of this case. To do so creates bad law and hampers the necessary regulation, control, and policing of nearly one million cars which traverse the public highways of this state every day.

HALL, C.J., concurs in the dissenting opinion of HOWE, Associate C.J.