People v. Smith

162 Mich. App. 534 (1987)

PEOPLE
v.
SMITH

Docket No. 92349.

Michigan Court of Appeals.

Decided June 18, 1987.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, William F. Delhey, Prosecuting Attorney, and Kirk K. Nissley, Assistant Prosecuting Attorney, for the people.

McLain & Winters (by Wm. Douglas Winters), for defendant.

Before: M.J. KELLY, P.J., and SULLIVAN and D.R. CARNOVALE,^[*] JJ.

PER CURIAM.

Defendant was charged with and bound over for receiving and concealing stolen property with a value in excess of $100, MCL 750.535; MSA 28.803. Subsequently, defendant filed a motion in the Washtenaw Circuit Court to quash the information and suppress the evidence, in particular, a stolen engine and transmission, as being the fruit of an alleged unlawful search and seizure of his 1974 Monte Carlo. Following the circuit court's denial of the motion, defendant appeals by leave granted.

The primary issue is whether the impoundment of defendant's vehicle and inspection of the vehicle identification numbers (VINS) stamped on the engine and transmission without a warrant were violative of defendant's rights against unreasonable searches and seizures under US Const, Am IV, and Const 1963, art 1, § 11. To facilitate review of this issue, recitation of the following relevant facts is necessary.

On Saturday, February 16, 1985, Detective William Gilless of the Washtenaw County Sheriff's Department responded to a domestic disturbance between defendant and his father, Pete Smith, at Smith's residence. Gilless was requested to come to the residence by a uniformed deputy who, while handling the disturbance, overheard a conversation between defendant and his father concerning stolen engine and body parts.

Detective Gilless had known both defendant and Pete Smith for several years, as Smith was an owner of, and defendant an employee of, the Ypsilanti Towing Company, which had a contract with the sheriff's department to provide towing and impoundment services.

Defendant departed from the residence prior to Detective Gilless' arrival. Upon arriving, Gilless spoke with Pete Smith for forty-five minutes. Smith informed Gilless that defendant was using Ypsilanti Towing as a "chop shop" operation, where he would strip down late-model vehicles to sell the parts and, also, purchase and disassemble old-model vehicles and reassemble them with stolen parts. Smith also indicated that defendant possessed a 1974 Monte Carlo, which contained a stolen transmission and engine from a 1982 Corvette, and that other stolen parts were kept at defendant's personal residence.

After the conversation, and in an attempt to find defendant, Gilless and Pete Smith drove past defendant's residence. Although defendant was not there, the Monte Carlo was parked in the driveway. Smith identified that vehicle as the one containing the stolen engine and transmission. Gilless was already familiar with the vehicle, as he had previously learned from defendant himself that it was completely rebuilt from the frame up and had a selling price of $5,000.

Gilless and Smith then proceeded to Ypsilanti Towing, where they encountered defendant. Gilless informed defendant of his father's allegations, advised him of his Miranda rights, Miranda v Arizona, 384 U.S. 436; 86 S. Ct. 1602; 16 L. Ed. 2d 694 (1966), and requested permission to inspect company-owned vehicles and the Monte Carlo. Defendant declined to give his consent and advised Gilless to obtain a search warrant.

Gilless immediately arranged to have Officer Michael Rae of the Ypsilanti Police Department keep the Monte Carlo in defendant's driveway under surveillance while Gilless went to obtain the necessary search warrants. Defendant thereafter returned to his residence and encountered Rae, who explained to defendant his presence and purpose. Defendant initially went into his house, but returned outside within ten minutes and began to drive away. After driving half a block, defendant was stopped by Rae, who then requested Gilless to return to the location.

Gilless returned to the scene before having an opportunity to obtain the warrants and requested defendant to allow him to inspect the vehicle identification numbers. Defendant responded that Gilless could only inspect the VIN engraved on the dashboard and then walked away with the keys, leaving the car locked. Gilless did not arrest defendant at that time. Instead, he took steps to impound the vehicle.

The car was then impounded and was ultimately towed that day to the county sheriff's department for overnight storage. Having finally spoken with an assistant prosecutor, Gilless was advised that he would not need a search warrant to inspect the VIN'S mounted on the engine and transmission.

The next day, February 17, 1985, the vehicle was towed to Sakstrups Towing, where an inspection was conducted with the technical assistance of Frank Visconi, a special agent for the National Automobile Theft Bureau (NATB), and Deputy Roger Hill of the county sheriff's department. The officers pried open a door of the vehicle with a tool known as a slim jim in order to gain access to the hood latch. Neither the vehicle's interior nor the trunk was inspected.

The VIN on the dashboard was identified as belonging to the Monte Carlo. The engine VIN was inspected from above after the hood was opened. Visconi opined that the original engine VIN had been ground away and restamped with the VIN of a 1979 Chevrolet truck. However, the engine itself had an outward appearance similar to that of a Corvette engine. By comparison, the transmission VIN was unaltered and corresponded with the VIN from the transmission of a stolen 1982 Corvette, as was learned by Visconi through a NATB records check on Monday, February 18.

A more in-depth inspection was conducted on February 28, 1985, during which the engine and transmission were fully removed from the Monte Carlo and a heat restoration process was utilized to remove the existing truck engine VIN and to "raise shadows" of the original VIN stamped underneath. In the opinion of Visconi, the engine was from the stolen 1982 Corvette. Defendant was thereafter arrested and charged as stated.

In denying defendant's motion, the circuit court judge adopted the reasoning of the examining magistrate who, in issuing an opinion on the admissibility of the VINS, determined that no warrant was necessary to impound the car and inspect the VINS because defendant had no expectation of privacy in the VINS and that, nonetheless, the actions of the officers were supported by probable cause.

A trial court's ruling at a suppression hearing will not be disturbed unless it is clearly erroneous. People v Burrell, 417 Mich. 439, 448; 339 NW2d 403 (1983). A finding is clearly erroneous where the reviewing court is firmly convinced that a mistake has been made. People v United States Currency, 148 Mich. App. 326, 329; 383 NW2d 633 (1986).

The first issue is whether the inspection of defendant's vehicle to determine the relevant VINS was a search within the meaning of US Const, Am IV, and Const 1963, art 1, § 11, thereby necessitating a warrant or a situation in which an exception to the warrant requirement applies. The test is whether the defendant had a reasonable expectation of privacy in the object or area of the intrusion. Katz v United States, 389 U.S. 347; 88 S. Ct. 507; 19 L. Ed. 2d 576 (1967); People v Nash, 418 Mich. 196, 205; 341 NW2d 439 (1983).

In New York v Class, ___ US ___; 106 S. Ct. 960; 89 L. Ed. 2d 81 (1986), the United States Supreme Court recently held that there was no legitimate expectation of privacy in an automobile VIN which was affixed to the dashboard of the vehicle, subject to the plain view of the public. Nothing the role played by VINS in "the pervasive regulation by the government of the automobile," as well as the lesser expectation of privacy an individual has in a motor vehicle, the Court concluded:

It is unreasonable to have an expectation of privacy in an object required by law to be located in a place ordinarily in plain view from the exterior of the automobile. The VIN'S mandated visibility makes it more similar to the exterior of the car than to the trunk or glove compartment. The exterior of a car, of course, is thrust into the public eye, and thus to examine it does not constitute a "search." See Cardwell v Lewis [417 U.S. 583, 588-589; 94 S. Ct. 2464, 2468-2469; 41 L. Ed. 2d 325, 333-334 (1974)]. In sum, ... we hold that there was no reasonable expectation of privacy in the VIN. [106 S Ct at 966.]

Prior to Class, Michigan case law also refused to recognize a reasonable expectation of privacy in VINS. In People v Brooks, 405 Mich. 225; 274 NW2d 430 (1979), our Supreme Court held that no "search" was conducted when a police officer checked a hidden VIN by crawling under the vehicle. Similarly, in People v Brewer, 112 Mich. App. 670; 317 NW2d 218 (1981), a panel of this Court stated that the opening of a motor vehicle door by a police officer to view the VIN on the door post does not constitute a search where the officer has a valid reason to check the VIN.

We thus conclude that the inspection of the VINS on the transmission and the engine did not constitute a search. Based upon the detailed information which Detective Gilless obtained from defendant's father, as well as defendant's refusal to cooperate with the officer, Gilless had probable cause to believe the car might contain a stolen engine and transmission and, thus, he had a valid reason to check the VINS. Although the inspections conducted in the cited authority are arguably distinguishable from the instant inspection of the engine, which was not in plain view and required the opening of the locked hood, we nonetheless are not persuaded that the inspection invaded a reasonable expectation of privacy belonging to defendant. See United States v Polk, 433 F2d 644, 647-648 (CA 5, 1970).

In light of our finding that Officer Gilless had probable cause to believe defendant's automobile contained stolen parts, we also summarily reject defendant's other argument that the stop and seizure of the automobile itself without a warrant was unreasonable. Chambers v Maroney, 399 U.S. 42; 90 S. Ct. 1975; 26 L. Ed. 2d 419 (1970).

Affirmed.

NOTES

[*] Recorder's Court judge, sitting on the Court of Appeals by assignment.