70 Mich. App. 7 | Mich. Ct. App. | 1976
Lead Opinion
On July 31, 1973, defendant was convicted by a jury of receiving stolen property with a value over $100. MCLA 750.535; MSA 28.803. He was sentenced to 40 months to 5 years in prison. Claim of appeal was filed on February 17, 1975.
On March 13, 1972, Michigan State Police officers were investigating a stolen car ring. The surveillance team was observing a 1972 Mark IV automobile, the vehicle identification number (VIN) of which one of the police officers discovered to be bogus. In the same parking lot as the suspect automobile was a 1969 Cadillac and a Ford Maverick, both of which were noticed by the police officers. All three vehicles were driven out of the parking lot at the same time and travelled together. The surveillance team followed the vehicles to a gas station at which all three cars had stopped.
At the gas station, Officer McKee, a Southfield police officer who had joined the surveillance team, approached the Cadillac and asked the driver, defendant herein, for his driver’s license and car registration. The license was in defendant’s name and the registration was in the name of Mr. Benning. A check was made on the documents. The registration checked out with the license plates and the Cadillac’s VIN also matched.
Another member of the surveillance team, Officer George, took defendant and the Cadillac to the Southfield police station. At the police station, defendant was formally placed under arrest and an inventory search was made. The Cadillac was examined and it was discovered that the VIN plate was bogus, that two of the VIN numbers were out of line on the plate, and that the VIN number did not match the identification numbers located on the engine block and frame. It was determined that the car was stolen, and defendant was charged with receiving stolen property.
Defendant challenges the legality of his arrest,
A police officer is authorized to arrest without a warrant when he has reasonable cause to believe that a felony has been committed and reasonable cause to believe that such person has committed it. MCLA 764.15; MSA 28.874. Chief Judge Danhof’s opinion in People v Langston, 57 Mich App 666; 226 NW2d 686 (1975), contains a concise statement of the law relative to determining the validity of a warrantless arrest:
"Reasonable or probable cause stems from some fact, circumstance, or information which creates an honest belief in the mind of a reasonable and prudent man; that is, there must be good reason to believe that the person arrested has committed a felony. People v Napolitano, 2 Mich App 601; 141 NW2d 356 (1966), lv den [sub nom People v Kedzierski], 378 Mich 729 [1966]. The facts upon which the belief is based must exist at the time of the arrest. People v Major, 34 Mich App 405; 191 NW2d 494 (1971). Information subsequently acquired can have no bearing upon this determination. People v Gwinn, 47 Mich App 134; 209 NW2d 297 (1973).
"Actual facts creating an actual belief can alone give rise to probable cause. People v Panknin, 4 Mich App 19; 143 NW2d 806 (1966). An officer may not arrest on mere suspicion. People v Griffin, 33 Mich App 474; 190 NW2d 266 (1971), lv den, 385 Mich 775 [1971], Rather, the officer must entertain an honest, actual belief, based on reasonable grounds, that the arrested individual committed a felony.” 57 Mich App at 672.
There can be little dispute that defendant was under arrest when he accompanied the police officer to the Southfield police station. The initial stop and investigation of defendant at the gas station may well have been justified under Terry v Ohio, 392 US 1; 88 S Ct 1868; 20 L Ed 2d 889
At the time of defendant’s arrest, the police knew that defendant was travelling in a group of cars which included a known stolen vehicle, the Mark IV. One of the officers testified that when he observed the Cadillac at the gas station, it appeared to him that two of the numbers on the VIN plate were out of line with the others. On the other hand, defendant presented proper identification and the car registration matched the plates and the VIN number. There is no indication in the record that the police knew that the Cadillac had been stolen or that the defendant had previously been involved with stolen cars. Under these circumstances it is clear that the police were acting on no more than mere suspicion in arresting the defendant. As such, there was no reasonable or probable cause to validate the warrantless arrest.
Having found defendant’s arrest to have been invalid, we are presented with the difficult question of whether the evidence against defendant emanating from that invalid arrest should have been suppressed by the trial court.
After defendant’s arrest, the Cadillac which he was driving was taken to the police station. There
This search of the automobile obviously cannot be justified as a search incident to a valid arrest. Nor is the "exigent circumstances” doctrine available as the vehicle was removed to the police station.
The prosecutor has offered no acceptable basis upon which the warrantless search of the vehicle and the resulting evidence against the defendant might be justified. The evidence of the correct vehicle identification numbers, that the VIN plate had been tampered with and the resulting evidence that the car had been stolen should have been suppressed. The trial court’s failure to suppress the evidence was reversible error.
Defendant also contends that certain evidence discovered on his person by the police subsequent to his arrest should have been suppressed. At the police station, defendant was taken to the booking area and asked to turn over his possessions including his shoes and socks. While defendant was removing one of his socks, an officer noticed a small piece of paper inside the sock. The folded piece of paper was taken by the officer and opened.
Reversed and remanded to the trial court.
Cf. People v Jones, 66 Mich App 223; 238 NW2d 813 (1975), and People v White, 392 Mich 404; 221 NW2d 357 (1974), cert den, 420 US 912; 95 S Ct 835; 42 L Ed 2d 843 (1975).
See People v Jones, supra, footnote 1.
See People v White, supra, footnote 1.
Dissenting Opinion
(dissenting). I must respectfully dissent from my brother Burns’ opinion.
I do agree with him that the initial stop and investigation of defendant at the gas station was justified. Terry v Ohio, 392 US 1; 88 S Ct 1868; 20 L Ed 2d 889 (1968). Defendant was brought under surveillance and was stopped by police because he was driving a vehicle clearly travelling in tandem with two other automobiles, one of which was known to be stolen. The stolen automobile, a Continental Mark IV, was known to have a false VIN plate. All of the vehicles had been originally observed together at the Telegraph House Motel before leaving the motel in a group. In addition, they all travelled in identical route for several blocks to the gas station. Certainly the police officers acted reasonably in stopping and investigating defendant when the vehicles pulled up at the gas station.
However, my opinion diverges from the majority at this point. Taking into account these highly suspicious circumstances, I find reasonable cause to arrest appeared when, upon checking the VIN
This Court recognizes that an arrest is proper where a misdemeanor is committed in the officer’s presence or if, from personal observations, the officer has reason to believe a misdemeanor was committed in his presence. MCLA 764.15(a); MSA 28.874(a). Gallagher v Secretary of State (On Rehearing), 59 Mich App 269, 272-273; 229 NW2d 410 (1975), People v Dixon, 392 Mich 691, 695; 222 NW2d 749 (1974), People v Davenport, 46 Mich App 579, 582; 208 NW2d 562 (1973).
In this state, altering or replacing vehicle identification numbers is a misdemeanor. MCLA 750.415; MSA 28.647. Consequently, when the numbers in the automobile defendant was driving clearly appeared out of line, the officers could reasonably conclude that they were witnessing the commission of a misdemeanor by defendant.
I cannot agree that any "search” within the meaning of the Fourth Amendment occurred when police searched the automobile defendant was driving subsequent to his arrest. People v Valoppi, 61 Mich App 470, 477-479; 233 NW2d 41 (1975). In Valoppi, police also searched underneath an automobile for the vehicle identification number which led to the defendant’s arrest. I concurred with the Court in that opinion. There, we cited the follow
" 'Our recent decision in United States v Johnson, 413 F2d 1396 (CA 5, 1969), affirmed en banc, August 13, 1970, held that such a limited inspection of a vehicle identification number is not a search within the meaning of the Fourth Amendment. The rationale for this holding is that an automobile owner can have no reasonable expectation of privacy with respect to the car’s VIN. See Mancusi v DeForte, 392 US 364; 88 S Ct 2120; 20 L Ed 2d 1154 (1968). The "reach of [the Fourth] Amendment cannot turn upon the presence or absence of a physical intrusion into any given enclosure”. Katz v United States, 389 US 347, 353; 88 S Ct 507; 19 L Ed 2d 576 (1967).
" 'Vehicle identification numbers are put on automobiles by the manufacturers to aid in identifying the vehicles. There are so many similar cars that individual vehicles can be identified only through the use of such individual numbering. State laws contain many requirements for disclosing and recording such VIN’s, showing a generally accepted mode of disclosure and the lack of any reasonable expectation of privacy with respect to the numbers.
" 'Most states require that automobiles be registered with a state agency to establish a record of car ownership. The registration, which must be carried in the car, identifies the car by its VIN. These requirements proceed from a purpose to keep track of the ownership of potential instruments of personal and property injury, so that drivers in automobile accidents can be traced and so that compulsory insurance requirements can be enforced. Additionally, the state seeks to protect ownership rights in these mobile and expensive assets. License plates are not sufficient for these purposes because of their easy removability.
" 'It is routine practice for policemen stopping cars in traffic control operations to ask for the automobile registration papers in addition to the driver’s license. Viewing registration papers is part of the accepted regulatory scheme.
" 'A car is not a home. An automobile runs and stops on the public roads, where viewers may crawl under it or press their faces against its windows. Its exterior and much of its interior are within the "plain view” of the casual or purposeful onlooker, and thus are not protected by the Fourth Amendment from searching eyes. See, e.g., Marshall v United States, 422 F2d 185 (CA 5, 1970); Wright, Federal Practice and Procedure § 668 (1969).
" 'Thus the VIN on the rear axle or on the car frame are outside any reasonable expectations of privacy. Those that may be seen only by opening the car door or hood are no more private: doors and hoods are continually opened to the eyes of observers.’ ” 61 Mich App 470, 478-479.
I am constrained to follow that prior opinion in this matter. Consequently, regardless of whether the arrest was illegal or not and I feel it was not, the search for the proper VIN was not an illegal "search” and the results were admissible at trial.
Neither can I find defendant’s final allegation of error regarding the temporary license able to withstand analysis. I have stated that grounds for a valid arrest occurred when officers discovered the vehicle identification numbers out of line. Certainly defendant was properly placed in custody after the automobile was confirmed as stolen upon finding the correct VIN.
Only following formal, valid arrest was qn in
Having examined all the errors defendant alleges, I would affirm the conviction.
Nevertheless, I would note this Court has ruled that, even were the arrest illegal, subsequent proceedings are not void where the illegal arrest was followed by a complaint and warrant on which defendant was held for trial, or, where defendant was legally bound over to the circuit court for trial. People v Henry Robinson, 37 Mich App 115, 118; 194 NW2d 537 (1971), People v Nawrocki, 6 Mich App 46, 53-54; 148 NW2d 211 (1967). This point becomes relevant given my finding that no other error occurred prior to defendant’s formal arrest, shortly after the search of the VIN indicated the vehicle was stolen.