U.S. v. Kitowski, 83-8479

• Citation: 729 F.2d 1418
• Decision Date: 16 April 1984
• Docket Number: No. 83-8479,83-8479
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Peter KITOWSKI, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1418

729 F.2d 1418

UNITED STATES of America, Plaintiff-Appellee, v. Peter KITOWSKI, Defendant-Appellant.

No. 83-8479.

United States Court of Appeals, Eleventh Circuit.

April 16, 1984.

Steven H. Sadow, Donald F. Samuel, Atlanta, Ga., for defendant-appellant.

Richard H. Dean, Atlanta, Ga., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before HILL, VANCE and ANDERSON, Circuit Judges.

JAMES C. HILL, Circuit Judge:

In this case, we are asked to resolve an issue that a panel of this court previously reserved: what is the appropriate unit of prosecution under 18 U.S.C. Sec. 2312, which prohibits interstate auto theft? See Ward v. United States, 694 F.2d 654, 660 n. 9 (11th Cir.1983). A similar issue is presented under 18 U.S.C. Sec. 2315, which prohibits concealing and disposing of stolen securities. Following the path of other circuit court decisions passing on these issues, we hold that 18 U.S.C. Sec. 2312 allows for the imposition of multiple sentences where an accused is proven to have transported more than one stolen auto across state lines at distinct times. We also hold that 18 U.S.C. Sec. 2315 provides for multiple sentences where an accused is proven to have disposed of stolen securities in different places at distinct times. The district court correctly resolved these issues. However, because appellant committed only one offense by transporting a group of forged securities across state lines in a single trip, he was improperly sentenced for multiple violations of 18 U.S.C. Sec. 2314 and we must remand to the district court for resentencing under that statute.

We review the facts at some length in order to explain the rather difficult legal issues presented. Appellant Kitowski planned to take three cars that had been stolen in Chicago to Georgia in order to acquire new titles. To this end, he enlisted the aid of two other drivers and, with Kitowski driving one of the cars, the three drove south in a convoy. Kitowski also carried a briefcase containing counterfeit Michigan titles, papers that were essential to his plan to secure new titles in Georgia.

Kitowski and his cohorts drove the stolen cars into Atlanta and discussed plans for getting Georgia titles. Kitowski then gave to each of the other drivers a counterfeit Michigan title and instructed each to go to a specified county and acquire a Georgia title and license plate. One driver was sent to Rockdale County, where she obtained Georgia tags. The next day, another went to Covington County and registered the second of the three stolen autos. Finally, Kitowski drove to Henry County and registered the third stolen auto.

After completing their business, Kitowski and his fellow conspirators left Georgia headed north. However, the car driven by Kitowski, a red Corvette, overheated in Newton, Iowa, and he was forced to stay overnight while repairs were made. Local police, for reasons we will set forth more fully below, suspected that the Corvette was stolen and arrested Kitowski. After he was returned to Georgia, Kitowski was charged with three counts of interstate transportation of stolen motor vehicles, in violation of 18 U.S.C. Sec. 2312, with three counts of interstate transportation of counterfeit auto titles, in violation of 18 U.S.C. Sec. 2314, with three counts of concealing, storing and disposing of stolen motor vehicles, in violation of 18 U.S.C. Sec. 2313, and with three counts of concealing, storing and disposing of counterfeit titles, in violation of 18 U.S.C. Sec. 2315. The jury found him guilty on all twelve counts, and the district court gave him a forty-five year sentence.

Kitowski appeals and raises two questions: (1) Did the Newton, Iowa, police lawfully arrest him; and (2) Did the district court properly sentence him. We answer the first question in the affirmative, but we agree with both parties that Kitowski was improperly sentenced on the section 2314 counts.

I. THE ARREST

Kitowski initially challenges the lawfulness of his arrest and the subsequent seizure of evidence from the red Corvette by local police officers in Newton, Iowa. He argues that the evidence supporting his arrest and conviction was obtained in violation of the fourth amendment. Alternatively, Kitowski contends that the information known to the officers at the time of the arrest was insufficient to establish probable cause.

When the car Kitowski was driving overheated, he drove into Barney's Service Station and asked a mechanic to make any necessary repairs. The mechanic told Kitowski that the car could not be repaired before morning and suggested to Kitowski that he might get a room for the night. Kitowski agreed, left the car and its keys with the mechanic, and then checked into a local motel.

Early the next morning, the mechanic determined that the car needed a new radiator but decided to consult Kitowski before installing one. The mechanic, however, could not remember Kitowski's name, so he called the local police department and asked those in charge to run a computer check on the car's license plates to determine the name of the owner. The computer check failed to provide the requested information, but the officers asked the mechanic for the car's vehicle identification number (VIN) so they might run a second check through the computer. The mechanic looked for but could not locate the VIN for the Corvette.

Sometime later in the morning, two patrol officers stopped by the service station where Kitowski had left the car for repairs. They helped the station owner search for the car's VIN and finally found it on the outside of the door post on the driver's side of the car. ¹ The officers became suspicious after locating the VIN for several reasons. First, the plate carrying the VIN was an obvious replacement because the area around the plate was discolored, indicating that a larger plate had been replaced with the present one. Second, the plate contained new rivets and the plate's numbers were misaligned. At this point, the officers called in a department auto theft investigator, who later confirmed their suspicions that the plate had been altered. A registration check of the VIN indicated that the number was issued to a car with an engine larger than the one in the Corvette; that it was issued to a green car, not a red one like the Corvette; and that the license plate on the Corvette was issued to Robert Katrone, not Kitowski.

On the basis of this information, the officers located and arrested Kitowski. ² After receiving Miranda warnings, Kitowski made certain incriminating statements and consented to a search of the Corvette. The officers who searched the car found counterfeit auto titles in Kitowski's briefcase together with tools that might be used to alter a car's VIN plate. Kitowski moved to suppress this evidence, but the district court ruled that the officers' initial search for the Corvette's VIN did not violate Kitowski's fourth amendment expectations of privacy and, therefore, denied the suppression motion.

In assessing Kitowski's challenge to the police officers' search for the Corvette's VIN, we repeat the rule long ago adopted by this court:

[I]nspections of motor vehicles performed by police officers, who were entitled to be on the property where the vehicles were located, which in no way damaged the vehicles and were limited to determining the correct identification numbers thereof [are] not searches within the meaning of the Fourth Amendment; ... alternatively, if ... such inspections constituted a Fourth Amendment search, then no search warrant was necessary because such inspections [are] reasonable and [do] not violate the right of the people to be secure in their persons, houses, papers or effects.

United States v. Johnson, 431 F.2d 441 (5th Cir.1970) (en banc), see also United States v. Williams, 434 F.2d 681, 683-84 (5th Cir.1970), cert. denied, 401 U.S. 1011, 91 S.Ct. 1262, 28 L.Ed.2d 547 (1971).

The Newton, Iowa, police officers were entitled to be on the property where they viewed the stolen Corvette's VIN since the manager of the service station asked for their assistance. The fact that the officers were required to open the car's door in order to locate the VIN does not make the viewing an unreasonable search under the fourth amendment. See United States v. Duckett, 583 F.2d 1309, 1312-13 (5th Cir.1978) (officer may open door of vehicle to view VIN without running afoul of fourth amendment proscriptions against unreasonable searches); United States v. Forrest, 620 F.2d 446, 455 (5th Cir.1980) (to same effect).

In the course of viewing the Corvette's VIN plate, the officers became suspicious when they noticed signs of alteration. The plate appeared to be a replacement for the original VIN plate and the new plate's numbers were misaligned. An auto theft expert examined the VIN plate and confirmed that the Corvette might have been stolen. The expert's opinion was reinforced by the results of a registration check of the car's VIN which showed that the VIN was issued to a car of a different engine size, color and owner. ³ At this point, the officers had done no more than view the car's VIN, as they were permitted to do, and check the VIN through their computer files. Nothing in the fourth amendment prohibits such an inspection or the investigatory registration check which followed. Therefore, we reject Kitowski's argument that any evidence seized as a result of the officers' viewing the car's VIN should have been suppressed.

We also reject Kitowski's argument that probable cause did not support his arrest. To determine whether probable cause supported a warrantless arrest, we employ the following test:

[P]robable cause exists if facts and circumstances within the knowledge of an arresting officer and of which he has reasonably trustworthy information are sufficient to warrant a man of reasonable caution in the belief that an individual has committed a...