State v. Larocco

742 P.2d 89, 64 Utah Adv. Rep. 49, 1987 Utah App. LEXIS 527

• Court: Court of Appeals of Utah
• Decided: August 27, 1987
• Docket: 860172-CA
• Status: Published

Opinions

OPINION

GREENWOOD, Judge:

Defendant seeks reversal of his jury conviction of theft and possession of a stolen vehicle. Defendant contends the trial court erred in: (1) admitting evidence obtained without a search warrant; (2) refusing to grant a mistrial after a conversation between a juror and a prosecution witness; and (3) instructing the jury it could convict defendant of both theft and possession of the same stolen vehicle.

In June of 1981, a distinctive 1973 Ford Mustang was reported stolen from State Auto Sales. The theft allegedly occurred when a man who had twice previously visited the car lot was allowed by a salesman to take the car for an unaccompanied test drive. The man failed to return the car or pay for it.

In May of 1985, the same salesman saw defendant at another car sales showroom. He obtained defendant’s name and address and relayed that information to the owner of the lot from which the Mustang had been stolen in 1981, a Mr. Padilla. Mr. Padilla could not locate the exact street address, but did observe the Mustang parked on the street within a couple of blocks of the address. Mr. Padilla noted the license number and called the police.

Shortly thereafter Deputy Robison, in response to Mr. Padilla’s call, observed the Mustang parked in front of what proved to be defendant’s home and ascertained through state licensing records that the Mustang was registered in defendant’s name. Deputy Robison also checked the Vehicle Identification Number (VIN) listed with the state for the vehicle’s registration, and was informed that the VIN came from a 1973 Mustang registered to a Mr. Neil Hailes.

About a week later Deputy Robison and two other officers returned to the neighborhood where the Mustang was parked. They looked through the front window at the VIN tag on the dashboard. That VIN matched the VIN identified as being that of Mr. Hailes’ Mustang but did not match the VIN of the vehicle stolen from Mr. Padilla’s car lot. The officers then opened the unlocked door and observed the VIN on the safety standard sticker on the inside edge of the door. This VIN differed from that on the dashboard, but matched that of the Mustang stolen in 1981 from State Auto Sales. Tlie officers then went to defendant’s home, read him his Miranda rights, and arrested him. Defendant consistently claimed he had purchased the Mustang. Subsequent investigation revealed that Neil Hailes’ Mustang was totally destroyed in a car accident in December of 1975.

I.

SEARCH AND SEIZURE

Prior to trial and at trial defendant moved to suppress the VIN evidence obtained as a result of the warrantless search of the Mustang. The motions were denied. Defendant asserts on appeal that the war-rantless search violated his United States and Utah constitutional rights to be free from unreasonable search and seizure.¹

Two elements must be examined in connection with the search and seizure claim of defendant. First, we must determine if defendant has standing to challenge the legality of the search. Second, if we determine that defendant does have such standing, we must ascertain whether or not the search was legal.

A.

STANDING

The question of standing to protest an alleged unlawful search was discussed by the United States Supreme Court in Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). Petitioners in Rakas were passengers in, not owners of, a car which was searched by police without first obtaining a warrant. The search produced a rifle and shells used as evidence to convict petitioners. In arguing that the evidence should have been suppressed, petitioners urged the Court to adopt the rule that a person has standing to prevent a warrantless search when the search is “directed” against that person or the person is legitimately on the premises at the time of the search. The Court did not agree, finding that fourth amendment rights are personal and do not extend to the search of another’s premises or property. Id. 439 U.S. at 133, 99 S.Ct. at 425. The Court refused to expand the exclusionary rule to vicarious use and stated the standard as being “whether the person who claims protection of the Amendment has a legitimate expectation of privacy in the invaded place.” Id. at 143, 99 S.Ct. at 430. The “legitimate expectation of privacy” test continues to be the usual measure utilized in federal and state search and seizure proceedings.

Federal circuit courts have also examined standing to object to search and seizure in fact situations somewhat similar to the case herein. In Simpson v. United States, 346 F.2d 291 (10th Cir.1965), the police, suspecting defendant had stolen a vehicle, arrested him for vagrancy and investigation of car theft and jailed him. While defendant was in jail, the police conducted a warrantless search of the vehicle, which produced evidence of violation of the Dyer Act. Based on that evidence, defendant was convicted under the Dyer Act of interstate transportation of a stolen vehicle. In reversing the trial court’s denial of the motion to suppress the evidence, the court rejected the notion that defendant could not protest the search because the car was stolen, as such reasoning would mean that police could conduct searches at will. The result would be that

of all defendants prosecuted for automobile theft, only those who actually owned the automobiles could raise Fourth Amendment objections successfully. Moreover, the proof of ownership would be sufficient to quash the prosecution for theft of the automobile. These constitutional rights belong to the guilty as well as the innocent, (citation omitted). The sole prerequisite to a defendant’s raising the Fourth Amendment issue is that he claims a proprietary or possessory interest in the searched or seized property.

Id. at 294.

The Ninth Circuit also discussed standing of one accused of auto theft to object to search of the alleged stolen vehicle. The court stated that “a person accused of a Dyer Act violation as the defendant was here has automatic standing to contest the validity of search or seizure of a vehicle or its contents where possession of the vehicle forms the basis of the charge.” United States v. Jamerson, 549 F.2d 1263, 1269 (9th Cir.1977).

The Tenth Circuit later reached a different result in United States v. Erickson, 732 F.2d 788 (10th Cir.1984). In Erickson, evidence obtained from a warrantless search of an airplane was deemed admissible. The court stated that “no testimony showed that the defendant had anything to do with Emery Air Freight or that he was authorized by Emery to possess, use, or fly the aircraft. Thus, defendant failed to show lawful possession of the plane giving rise to a legitimate expectation of privacy.” Id. at 790. Erickson was subsequently cited in United States v. Obregon, 748 F.2d 1371,1375 (10th Cir.1984), where defendant was in sole possession and control of a car rented by another. The court found defendant had no standing to object to a search of a car which was rented by someone else.

The Utah Supreme Court has also examined standing to object to a warrantless search and seizure. In State v. Montayne, 18 Utah2d 38, 414 P.2d 958 (1966), defendant rented a car under a false name and failed to return it when due. Defendant was stopped by a police officer who knew he was a parolee, After determining that the car was rented under a name other than that of defendant and that it was overdue for return, the police officer arrested defendant for car theft. He then searched the car and found evidence which defendant sought to have suppressed. The Court held that because defendant’s lack of ownership of the car was established prior to the search, defendant had no standing to object to the search. The fourth amendment can be invoked only by one who can establish that he was a victim of an invasion of privacy. Id. 414 P.2d at 960. Similarly in State v. Purcell, 586 P.2d 441 (Utah 1978), the searched vehicle was known to have been stolen prior to its search. The Court stated that “[d]efen-dant simply lacks standing in court to attack the warrant as to the search of the stolen automobile, since on the facts before us, defendant had absolutely no possessory or proprietary interest therein that could have been invaded.” Id. at 443.

In State v. Valdez, 689 P.2d 1334 (Utah 1984), use of evidence obtained from a vehicle which the defendant was driving was challenged under both the Utah and United States Constitutions. The search was upheld because defendant stated he did not own the car and demonstrated no expectation of privacy in the effects searched. Most recently, in State v. Constantino, 732 P.2d 125 (Utah 1987), police officers saw defendant and another person in a car. Police knew that defendant had a suspended driver’s license and that the other occupant was wanted on an arrest warrant. They arrested both occupants and impounded the car, which belonged to a third person. An inventory search revealed marijuana. The Court held that the evidence was admissible as defendant had no right to possession of the car, it was registered to another and there was no indication that defendant had been given permission to drive the vehicle. The Court stated: “Absent claimed right to possession, he could not assert any expectation of privacy in the items seized and had no standing to object to the search.” Id. at 127.

These Utah cases have been decided under both the United States and the Utah Constitutions’ search and seizure provisions. In each Utah case where the search was upheld it was clearly established and not disputed prior to the search that defendant did not own or did not have an interest in the property searched. These cases are distinguishable from those where defendant asserts ownership of the property, or otherwise an interest giving rise to a “legitimate expectation of privacy.” We agree with the reasoning in State v. Constantino, that there must be at least a claimed right to possession in the property. In addition, consistent with the reasoning of Simpson v. United States,- we believe that the fourth amendment and its Utah counterpart would be rendered farcical if police officials were allowed to engage in warrantless searches of property for the ultimate purpose of proving that property stolen.

In this case, prior to the search, police knew that the car was registered in defendant’s name and that it was parked in front of defendant’s home. Only the search itself corroborated other information indicating that it was the stolen vehicle. Under these circumstances where defendant has not declared beforehand that he has no interest in the vehicle, and where proving that the car was stolen is one of the critical facts to be established at trial, we hold that the defendant has standing to challenge the legality of the search.

B.

LEGALITY OF SEARCH

We now turn to the question of whether the search, as actually conducted, violated defendant’s constitutional rights. The parties stipulated that two officers first looked through the windshield of the vehicle and noted a VIN which did not match that of the stolen car. They then opened the unlocked driver’s door and noted a VIN on the safety sticker which did match that of the stolen car. No further search of the car’s interior was conducted.

The legality of the search of a VIN has been addressed in several cases. In Glis-son v. United States, 406 F.2d 428 (5th Cir.1969), defendant was in jail on another matter when police officers first searched a truck suspected to have been stolen by defendant. The officers opened the front door of the truck and noted the VIN on the inside of the door. They tried to locate an identification number in other locations on the truck, but were unable to do so. The court observed that “[mjanufaeturers place confidential numbers in several hidden locations and they correspond with the more obvious, identification number placed just inside the door on the drivers side of the vehicle.” Glisson, 406 F.2d at 424. After discussing the issue of whether or not the defendant had standing to move for exclusion of evidence obtained in this initial search of the vehicle, the court found the search illegal for the following reasons: (1) the vehicle was in a truck park while the defendant was in jail; (2) opening the door of the truck was not incidental to an arrest; (3) no emergency existed; (4) there was no danger that evidence would be removed or destroyed; and (5) the identification number was not needed for police bookkeeping records. Id. at 428.

United States v. Polk, 433 F.2d 644 (5th Cir.1970) also involved testimony from a police officer as to a VIN on a stolen vehicle. In Polk, the evidence was ruled admissible because: (1) the car door was not locked; (2) no damage occurred as a result of the police inspection; (3) there was no search of private areas of the vehicle, such as the glove compartment; (4) there was no seizure of the vehicle; (5) there was no infringement of other property rights as the car was in a repair garage; (6) the owner of the garage consented to the inspection; and (7) there was no infringement of free movement as the car was not stopped in transit. Id. at 646-47. The court discussed the purposes of VINs, including aiding law enforcement personnel in tracing vehicles. The court then found that

[tjhere can therefore be no reasonable expectation of privacy with respect to the identity of the VIN. Opening the car door, looking under the hood, or crawling under the car to inspect the rear axle does not independently bring an inspection of the VIN within the scope of the Fourth Amendment.

Polk, 433 F.2d at 647. The court further observed that a car is not like a home. Much of the interior and all of the exterior is in view of the public and not protected. “Although opening the [unlocked] door of the car may involve a technical trespass, such action does not invade any expectation of privacy.” Id. at 647-48.

The United States Supreme Court considered the legality of a warrantless search for a VIN in New York v. Class, 475 U.S. 106, 106 S.Ct. 960, 89 L.Ed.2d 81 (1986).² Police stopped a speeding car with a cracked windshield. The officer opened the car door to look for the VIN on the doorjamb, as he could not see the dashboard VIN through the cracked windshield. When the officer did not find the VIN on the doorjamb, he moved papers aside on the dashboard which obscured the VIN. In this process he observed a gun in the car protruding from underneath the driver’s seat. The state used the gun as evidence in convicting defendant of illegal possession of a weapon. Appeal was based on denial of defendant’s motion to suppress. The Court discussed at length the purposes served by VINs and the federal statute requiring that all automobiles have a YIN in plain view of someone outside the car. 49 C.F.R. § 571.115 (1984). Justice O’Connor, speaking for the majority, observed that “the State’s intrusion into a particular area, whether in an automobile or elsewhere, cannot result in a Fourth Amendment violation unless the area is one in which there is a ‘constitutionally protected reasonable expectation of privacy.’ ” Id., 106 S.Ct. at 965 (quoting Katz v. United States, 389 U.S. 347, 360, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (1967)). The Court found a lesser legitimate expectation of privacy in automobiles than other locations because of the physical characteristics of automobiles. Their function is transportation, not as a repository of personal effects. Consequently, the Court found no reasonable expectation of privacy in the YIN on the dashboard. Id. 106 S.Ct. at 965-66. Covering the VIN with papers could not change the result, as an attempt to hide what was not subject to privacy would not render it private.³ The Court did say, however, that the remainder of the car’s interi- or was subject to fourth amendment protection, and an intrusion therein would be a “search.” Id. at 966. The Court held that the search for the VIN is not a “search” within the meaning of the fourth amendment because of the lack of reasonable expectation of privacy, but then explained that the subsequent seizure of the gun, which was in plain view, was justified by the safety factor. Id. at 967- 68.

The, Court noted that VINs are, by law, either inside the door or on the dashboard. “Neither of those locations is subject to a reasonable expectation of privacy. The officer here checked both those locations, and only those two locations_ He [the officer] did not even intrude into the interior at all until after he had checked the door jamb for the VIN.” Id. at 968. The Court clearly stated that VINs, whether on the dashboard or the car door, may be inspected by police without a warrant, so long as the intrusion is for that limited purpose, because there is no legitimate expectation of privacy in a VIN.⁴ Id. at 968-69.

In the case before us, the officers could have easily obtained a warrant for the search of the car. There was no indication that the car would not be available, as defendant had no idea that officers had been checking the car or investigating the possibility that it was a stolen vehicle. Indeed, he apparently had contentedly used the automobile as his own for years. No other factors existed which would have otherwise justified a warrantless search. However, we are bound by Class to conclude that the search was valid.⁵ The record indicates that the intrusion was minimal. Officers only opened the door and recorded the VIN. They did not search the interior of the car. The inspection was much less intrusive than that allowed in Class, which involved entry into the car. Although ordinarily the mere existence of probable cause would not justify a warrant-less search, Class finds that the existence of probable cause coupled with a nonintru-sive examination of a VIN legalizes such examination.⁶ Therefore, we hold that the search was legal and that denial of defendant’s motion to suppress was proper.⁷

II.

JUROR MISCONDUCT

Defendant contends that mistrial should have been declared when it was discovered that a juror had a conversation with a witness during the trial. The record indicates that after jury selection and just prior to the commencement of trial, a juror and Mr. Hailes, a prosecution witness, had a brief, casual conversation. Mr. Hailes told the juror he planned to go to Eureka, Utah and hoped the trial would not last too long. He also said he was surprised that none of the jurors had indicated, when asked, that they felt police officers were more believable than other people. Mr. Hailes told the juror he probably would have responded affirmatively to that question. When questioned in chambers by the trial court judge about the conversation, the juror declared that the conversation had not produced any bias and that she could fairly assess the evidence without regard to the conversation. The judge denied defendant’s motion for a mistrial.

The problem of juror/witness contact was examined in an early Utah case in which a prosecuting witness had driven a juror to and from the court throughout the two week trial. State v. Anderson, 65 Utah 415, 237 P. 941, 942 (1925). Affidavits of both stated they had not discussed the trial and that the juror had not been influenced in any way. The Utah Supreme Court noted that the Utah Constitution, art. I, § 12, guarantees trial by an impartial jury. The witness in Anderson was one whose testimony was critical to the prosecution. The Court remanded for a new trial, stating that

any conduct or relationship between a juror and a party to an action during trial that would or might, consciously or unconsciously, tend to influence the judgment of the juror authorizes and requires the granting of a new trial, unless it is made to appear affirmatively that the judgment of the juror was in no way affected by such relationship or that the parties by their conduct waived their right to make objection to such conduct.

Id. 237 P. at 943.

In State v. Durand, 569 P.2d 1107 (Utah 1977), three jurors had coffee in a sheriff’s office on two occasions when officers who were witnesses in the case were present. Both the jurors and the officers testified that there had been no conversation about anything pertaining to the case. The Utah Supreme Court stated that they strongly disapproved of the conduct, as even the appearance of misconduct should be avoided. The Court nevertheless held that “notwithstanding a showing of minor impropriety or irregularity there should be no reversal of a conviction unless it appears that a party has been prejudiced in that in the absence of such impropriety there is a reasonable likelihood that the verdict would have been different.” Id. at 1109. The Court found that the trial court had thoroughly examined the incidents and determined that no prejudice against defendant resulted. That determination was given deference and affirmed by the Court.

A different conclusion was reached in State v. Pike, 712 P.2d 277 (Utah 1985). There the Court found that a mistrial should have been granted where a juror talked to a witness. The Pike Court explained that “[ajnything more than the most incidental contact during the trial between witnesses and jurors casts doubt upon the impartiality of the jury and at best gives the appearance of the absence of impartiality.” Id. at 279-80. The Court stated that Utah has adopted a stringent rule that “prejudice may well exist even though it is not provable and even though a person who has been tainted may not, himself, be able to recognize that fact.” Id. at 280. The Court stated that in Utah the rule is that any improper contact between a juror and a witness creates a rebuttable presumption of prejudice. This presumption arises after any contact “which goes beyond a mere incidental, unintended, and brief contact.” Id. at 280. In applying the presumption, the Court found that, even though there was no conversation about the trial between the witness, who was the arresting officer, and the juror, the effect of the contact was “breeding a sense of familiarity” which could affect the credibility of that witness with that juror. The Court held the juror’s denial of prejudice or influence was, therefore, insufficient to overcome the presumption, and the mistrial should have been granted.

In the present case, the witness, Mr. Hailes, who talked to the juror, was admittedly a minor witness whose testimony was uncontroverted. He testified that he had owned a Ford Mustang with the same VIN as was on the dashboard of the subject Mustang, and that his Mustang had been destroyed in an accident. The critical issue, therefore, appears to be the content of the conversation, which involved the credibility of police officers as compared with others. Based on Pike, we must examine whether or not the state successfully rebutted the presumption of prejudice created by the contact. The state argues that the presumption was successfully rebutted for three reasons: (1) the juror stated she was not influenced by the contact; (2) Mr. Hailes was not a key witness nor in such a respected position that he would likely be influential; and most importantly, (3) the testimony presented at trial by police officers was uncontroverted, so that their credibility was not an issue.⁸ The trial judge listened to the testimony and arguments regarding possible prejudice. We find that he reasonably determined that the state had sustained its burden of demonstrating that no prejudice against defendant resulted from the contact.

III.

LESSER INCLUDED OFFENSES

Defendant also argues that the trial court improperly allowed the jury to convict him of both theft of an operable motor vehicle and possession of a stolen vehicle because the possession charge is a lesser included offense of the theft charge. Theft of an operable motor vehicle is a second degree felony under Utah Code Ann. § 76-6-404 (1978) and possession of a stolen vehicle is a third degree felony under Utah Code Ann. § 41-1-112 (1982). Defendant contends that under § 76-1-402 (1978) he should not have been convicted of both offenses. That section states:

(3) A defendant may be convicted of an offense included in the offense charged but may not be convicted of. both the offense charged and the included offense. An offense is so included when:

(a) It is established by proof of the same or less than all the facts required to establish the commission of the offense charged_

Defendant was charged with theft which occurred in 1981, and possession of a stolen vehicle occurring in 1985. A “single criminal episode” is defined as “all conduct which is closely related in time and is incident to an attempt or an accomplishment of a single criminal objective.” Utah Code Ann. § 76-1-401 (1978). Because of the remoteness in time of the two offenses, section 76-1-402(3) cannot bar the multiple convictions, as that section is limited to and defined by “separate offenses arising out of a single criminal episode.” Defendant also argues that the offenses should have been alternative pursuant to the reasoning advanced in State v. Hill, 674 P.2d 96 (Utah 1983). In Hill, the Utah Supreme Court considered whether or not defendant should have been convicted of both aggravated robbery and theft. The Court stated that “the greater-lesser relationship must be determined by comparing the statutory elements of the two crimes as a theoretical matter and, where necessary, by reference to the facts proved at trial.” Id. at 97. If it appears that the greater crime could not have been committed without necessarily committing the lesser there can be only one conviction.

If the facts were that the possession charge arose from possession of stolen goods immediately after or close in time to the theft of those same goods, we might be persuaded by defendant’s arguments and the applicability of Hill. However, where the events occurred four years apart and where there were intervening circumstances and perhaps intervening possessors of the stolen goods, the argument fails. The crime of theft by no means includes retention and possession of the stolen goods for a period in excess of four years. Therefore, we find that it was proper to allow the jury to convict defendant on both charges.

The judgment of the trial court is affirmed.

1 . Language in article I section 14 of the Utah Constitution is substantially identical to that in the fourth amendment of the United States Constitution: “The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue but upon probable cause supported by oath or affirmation, particularly describing the place to be searched, and the person or thing to be seized." Utah Const, art. I, § 14.

2 . The Court's main opinion was joined by a narrow majority. J. O’Connor delivered the opinion of the Court joined by C.J. Burger, J. Blackmun, J. Powell and J. Rehnquist. J. Powell concurred, joined by C.J. Burger. J. Brennan filed a dissent joined by J. Marshall and J. Stevens, and J. White dissented joined by J. Stevens.

3 . We note that the legitimate governmental purposes served by readily visible VINs would be defeated if persons were able to insulate them from inspection by obscuring them.

4 . The Supreme Court in Class stated that the doorplate VIN as well as the dashboard VIN is "ordinarily in plain view of someone outside the automobile.” 106 S.Ct. at 968. This is of course true only if the door is sufficiently ajar to permit the doorplate to be viewed. It seems clear that the Supreme Court would find no distinction of constitutional significance in moving obstructions so a dashboard VIN could be seen and moving the car door so a doorplate VIN could be seen. Indeed, if anything, the latter is less intrusive as the plane defining the interior of the car is not crossed and the interior, therefore, not physically penetrated. Nor must the officer make an election as to which VIN source he will view. In Class, as here, the officer "checked both those locations, and only those locations.” Id. at 968.

5 .It is perhaps true, as the dissent suggests, that the same result would be reached if the instant case were analyzed under the standards articulated in California v. Carney, 471 U.S. 386, 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985). However, because this case is factually closer to Class and because Class is more narrowly drawn and thus presents a less drastic departure from previously decided fourth amendment cases, we are more comfortable premising our decision on Class.

6 . Justice Brennan’s dissent in Class focuses on a perceived lack of probable cause to search for the VIN. The record here has no comparable lack. The officers knew, prior to their second visit to the subject car, that the VIN on the state’s registration records for the vehicle belonged to a 1973 Mustang registered in the name of Neil Hailes, not defendant. Additionally, the vehicle had distinctive markings identical to those of the stolen vehicle.

7 . The Utah Supreme Court has, to date, decided search and seizure cases argued under a Utah constitutional theory consonant with decisions under the United States Constitution’s fourth amendment, eschewing a different standard. See State v. Hygh, 711 P.2d 264 (Utah 1985); State v. Valdez, 689 P.2d 1334 (Utah 1984). We agree with the dissent that any departure from this approach should be announced by our state’s supreme court, not this Court. We further agree that it is in the context of vehicular searches, which the federal courts have treated with inconsistency, or worse, where consideration of some departure from the course set by the federal courts in interpreting the federal constitution would be most appropriate. We do not agree that adherence to federal doctrines in this case works a result so egregious as to make this case the one where plenary consideration is given to whether our state's constitution requires something more, or different, than the fourth amendment to the federal constitution.

8 . Police officers offered testimony and evidence to establish that the car was stolen. Defendant did not dispute that the car was stolen and the jury was not asked to decide that issue. Defendant denied he was the person who stole the car. The question to be decided by the jury, therefore, was whether or not defendant had stolen the car, which issue did not hinge on the credibility of the police officers' testimony.