Pasterchik v. United States

• Decision Date: 23 December 1968
• Docket Number: No. 21645-A,21645-A
• Parties: Michael PASTERCHIK, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

400 F.2d 696 (1968)

Michael PASTERCHIK, Appellant, v. UNITED STATES of America, Appellee.

Nos. 21645-A, 21645-B.

United States Court of Appeals Ninth Circuit.

September 20, 1968.

Rehearing Denied December 23, 1968.

Richard E. Weger (argued), San Jose, Cal., for appellant.

Michael L. Morehouse (argued), Asst. U. S. Atty., Sidney I. Lezak, U. S. Atty., Portland, Or., for appellee.

Before HAMLIN, DUNIWAY and ELY, Circuit Judges.

ELY, Circuit Judge:

This is a consolidated appeal. In No. 21645-A, appellant Michael Pasterchik was convicted of violating 18 U.S.C. § 2312, which proscribes the transportation of a stolen motor vehicle in interstate commerce. In No. 21645-B, the indictment charged two offenses, and Pasterchik was convicted of both. Count I alleged the violation of 15 U.S.C. § 902 (e), the transportation of a firearm in interstate commerce by a person previously convicted of a crime punishable by imprisonment for a term exceeding one year. Count II charged Pasterchik with having transported a stolen firearm in interstate commerce, a violation of 15 U.S.C. § 902(g). He received identical, concurrent sentences for his conviction under counts I and II of the indictment in No. 21645-B.

Here Pasterchik first contends that his conviction for transportation of the stolen motor vehicle cannot stand because it was obtained by use of the fruits of an unlawful search. Secondly, he urges that there is insufficient evidence to support the firearm convictions.

THE INTERSTATE TRANSPORTATION OF THE STOLEN CAR — No. 21645-A

In the latter part of April 1966, Pasterchik registered as "Dr. Michael Pasterchik" at a motor hotel in Portland, Oregon. After staying at the hotel for several weeks, he moved into the home of a Mrs. Fortney in Lake Oswego, Oregon. There, Pasterchik slept in an attic room, but he kept most of his personal belongings in a downstairs bedroom occupied by Mrs. Fortney's daughter.

When, and after, Pasterchik arrived at the hotel, he drove a 1966 Thunderbird convertible automobile. Both during and after his stay at the hotel, Pasterchik conversed frequently with a bartender in the hotel lounge. The bartender had observed that the vehicle had carried the "Water Wonderland" license plates of the State of Michigan, but that soon thereafter, those plates had been replaced with plates from the State of Illinois. When the bartender questioned Pasterchik about this change, Pasterchik explained that there was a tax lien on the car, that he had shipped the car back East, apparently in order to discharge the lien, that several days later his attorney had returned the car to him, and that when the car was thus returned to him, it bore the Illinois plates.

Suspicious of Pasterchik's explanation, the bartender called the F.B.I. on June 4, 1966, expressing to an Agent Taylor his belief that the car might be stolen. The bartender furnished Agent Taylor with what he believed to be the numbers of both the Michigan and Illinois plates, and Taylor undertook a check on those numbers. In fact, however, the bartender had transposed numbers in the Illinois plate number, and the information as to that number was therefore mistaken. The Detroit office of the F.B.I. reported that the identified Michigan plates had been stolen from an automobile dealer in that state, and the Springfield office reported that the Illinois license number supplied them had been issued to a man of good reputation and had not been reported stolen. On June 5th, the Denver office of the F.B.I. advised that Pasterchik was wanted in Phoenix, Arizona, for the theft of a 1966 Ford Mustang, and on the following day, Agent Taylor obtained from the District of Arizona a warrant for Pasterchik's arrest for unlawful flight to avoid prosecution on the Phoenix auto-theft charge.

Armed with this warrant, F.B.I. agents Taylor and Himmelsbach went to the Fortney residence in Lake Oswego at about 3 p. m. on June 6th. Pasterchik answered the agents' knock on the door and was immediately placed under arrest on the Arizona process. The agents permitted Pasterchik to dress in the downstairs bedroom where he kept his personal effects, but the agents made no effort to conduct a search at that time. When Pasterchik had finished dressing, the agents escorted him to the United States Court House where he was arraigned and incarcerated.

At 7 p. m. that evening, approximately four hours after the arrest, Taylor and Himmelsbach returned to the Fortney residence and began a search of Pasterchik's car and of his belongings in the house. They obtained no search warrant; rather, they sought and obtained Mrs. Fortney's written consent to both searches. Their search of the downstairs bedroom disclosed the following: (1) A Michigan license plate registration for a 1966 Thunderbird, No. 368D19, assigned to Dr. Joseph Roach; (2) an automobile dealer purchase order for a 1966 Thunderbird made out to Dr. Joseph Roach, bearing the license number 368D19 and the automobile serial number 6Y85Z130427; (3) an Ohio driver's license bearing the name of Dr. Joseph Roach; (4) five blank Michigan license registration cards; (5) a blank Michigan certificate of registration; and (6) a Shell Oil Company credit card in the name of Kregar Pickwick. Each of these items was introduced into evidence over Pasterchik's objection.

Following the search of the bedroom, Mrs. Fortney took the keys to the Thunderbird off a dresser in the bedroom, where Pasterchik had left them, and she proceeded, accompanied by the agents, to the garage where the vehicle was parked. She opened the trunk of the car for the agents, and the agents found in the trunk two Michigan license plates with the number 368D19.¹ These license plates, which were the ones stolen from the Michigan auto dealer, were also introduced into evidence. The agents ascertained the engine and serial² numbers of the automobile by lifting the hood of the car and by opening and looking inside the left front door, which, at that time, was not locked.³ Finally, the agents recorded the number of the Illinois license plate which was then openly attached to the car. It was established that the automobile belonged to the Hertz Rent-A-Car Corporation, Chicago, Illinois.

Agent Taylor testified that when he and Agent Himmelsbach returned to the Fortney home to conduct the searches, he had no knowledge that the Thunderbird had been stolen but that he suspected that it was. Similarly, Himmelsbach at that time had no knowledge that the automobile was stolen.

At trial the Government took the position that the searches of both the house and the car were incident to the valid arrest which had occurred four hours earlier. Under the facts of this case, that position is manifestly untenable,⁴ and the Government has now abandoned it. The ground upon which the searches are now sought to be justified is that Mrs. Fortney, the owner of the premises, consented to them.

We agree with the Government that Pasterchik may not properly complain of the search of the downstairs bedroom in Mrs. Fortney's home. He did not dwell there, and Mrs. Fortney, as the owner, was fully empowered to consent to the search of that portion of her home. "The rights of the owner of personal property are not violated where the property is observed during a search made with the consent of another who has an equal and independent right of access to the place searched." Corngold v. United States, 367 F.2d 1, 7 (9th Cir. 1966) (dicta); accord, Nelson v. People of State of California, 346 F.2d 73, 77 (9th Cir.), cert. denied, 382 U.S. 964, 86 S.Ct. 452, 15 L.Ed.2d 367 (1965), and cases cited therein.

The search of the automobile is on another footing. It is clear that Mrs. Fortney did not have a right of access to the automobile that was either equal to or independent of appellant's. Nor did he give her "such complete and unrestricted freedom over his property that he will be held to have accepted the risk that the person will consent to a search * * *." Corngold v. United States, 367 F.2d at 7. We conclude, therefore, that the agents' search of the automobile was improper.

Under the facts of this case, however, we hold that the error in the introduction of the Michigan license plates was harmless beyond a reasonable doubt. Chapman v. State of California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Appellant was convicted for transporting a stolen motor vehicle in interstate commerce. In order to establish the elements of that offense, the prosecution had the burden of proving that the vehicle was taken without the consent of the owner and that Pasterchik transported the vehicle in interstate commerce with knowledge that it was stolen. The Government's proof in these respects was abundant, and the fact that the trunk of the car contained Michigan license plates registered to another vehicle had little, if any, bearing on the elements of the particular offense in question.

As noted previously the agents also obtained the engine and serial numbers of the Thunderbird by raising the hood of the car and by opening the left front door. Under similar circumstances, our court has previously held that "even if the mere opening of the door to look at the number was a search, it was a reasonable one." Cotton v. United States, 371 F.2d 385, 393 (9th Cir. 1967). Furthermore, we wrote that "when a policeman or a federal agent having jurisdiction has reasonable cause to believe that a car has been stolen, or has any other legitimate reason to identify a car, he may open a door to check the serial number, or open the hood to check the motor number, and * * * he need not obtain a warrant before doing so in a case where the car is already otherwise lawfully available to him."⁵ Cotton v. United States, 371 F.2d at 394. In view of the various documents apparently relating to the Thunderbird which the agents had lawfully obtained in the search of the Fortney home, it is beyond doubt that the agents had ...