United States v. Ware

• Decision Date: 29 March 1972
• Docket Number: No. 71-1380.,71-1380.
• Citation: 457 F.2d 828
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. L. C. WARE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

457 F.2d 828 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. L. C. WARE, Defendant-Appellant.

No. 71-1380.

United States Court of Appeals, Seventh Circuit.

March 29, 1972.

LeRoy Dakich, Gary, Ind., for defendant-appellant.

William C. Lee, U. S. Atty., John R. Wilks, Asst. U. S. Atty., Fort Wayne, Ind., for plaintiff-appellee.

Before KNOCH, Senior Circuit Judge, and KILEY and STEVENS, Circuit Judges.

KNOCH, Senior Circuit Judge.

Defendant-appellant, L. C. Ware, was convicted in a jury trial on a two-count Information, charging violations of Title 18, U.S.C. §§ 2312, 2313, transport of a known stolen vehicle from Blue Island, Illinois, to Gary, Indiana, and receipt or concealment of a known stolen motor vehicle moving in interstate commerce. He was sentenced to a term of five years on each count, to run concurrently. This appeal followed. We affirm.

It is defendant's contention on appeal that the Trial Judge improperly denied his motion to suppress the confidential vehicle inspection number which Gary police officers ascertained from inspection of the frame of the motor vehicle described in the Information.

Transcript of the testimony and evidence heard by the Trial Judge prior to his denial of the motion is a part of the record before us.

It is defendant's position that the officers seized the automobile without warrant, and unreasonably searched it without probable cause to believe that it was contraband, stolen, used, or possessed with intent to be used, in committing a crime, or itself evidence of an offense, and that defendant himself was subjected to a sham arrest solely as a pretext to search the automobile in a further warrantless search carried out in the police garage at a time when defendant was in custody and no personal danger or risk of loss of the automobile existed.

This Court will not, of course, weigh the evidence and findings concerning credibility. United States v. Iacullo, 7 Cir., 1955, 226 F.2d 788, 795, cert. den. 350 U.S. 966, 76 S.Ct. 435, 100 L.Ed. 839.

The evidence would support a finding of the following set of facts. Patrolman Anthony William Green, of the Gary, Indiana, Police Department, received an anonymous telephone communication that a 1963 white over gold Cadillac, parked at 16th and Pierce, in Gary, was possibly a car stolen from Illinois. Officer Green did find an automobile of that description at that location. With Detectives Allen and Gibson, he maintained surveillance, remaining in contact via "walkie-talkie" radio communication. Officer Green saw the defendant, whom he knew by name, get into and drive away in the suspected automobile, and he followed.

While en route, Officer Green checked the license plate numbers by radio and learned they were registered to an Arthur Berry. He stopped the automobile defendant was driving by pulling up alongside it, introduced himself to defendant as a police officer, displaying his badge through the car window. One of the conflicts in the evidence concerned this aspect of the case. Defendant and his companion testified that they already parked the automobile and left it when Officer Green drove up. Detective William J. Allen, who had followed Officer Green in a police car arrived immediately, within 30 to 45 seconds. Detective Allen had observed the defendant driving the suspected automobile. He knew that defendant's driving privileges had been suspended and that defendant had previously been given a traffic ticket for unlawful operation of a motor vehicle. He told Officer Green that defendant had no driver's license.

Officer Green asked defendant for his license and registration and checked the identification plate on the car door. Defendant produced a driver's license in the name of Larry Ellington and a registration in the name of Arthur Berry, neither of which, the officers knew, was defendant's own name. Defendant was placed under arrest for unlawful operation of a motor vehicle. The vehicle was towed directly to the police garage, where Officer Green and Detective Allen immediately checked the confidential vehicle identification number stamped on the frame of the motor vehicle, check of which would not have been practicable while the suspected automobile was blocking a moving lane of traffic on the road.

The number was run through the National Crime Information Center and proved to be that of a vehicle stolen in Blue Island, Illinois.

Checking the serial number of an automobile by opening a door or lifting the hood over the motor has been held not to be a search. Cotton v. United States, 9 Cir., 1967, 371 F.2d 385, 392; Pasterchik v. United States, 9 Cir., 1968, 400 F.2d 696, 700, cert. den., 395 U.S. 982, 89 S.Ct. 2142, 23 L.Ed.2d 770, where the officer has a legitimate reason to identify the automobile. The Ninth Circuit adds a caution (footnote 5) against breaking into a locked car without a warrant, but that is not the case here.

In United States v. Nikrasch, 7 Cir., 1966, 367 F.2d 740, on which defendant relies, the facts were quite different. Defendant there was arrested for disorderly conduct pursuant to a Village Code provision prohibiting driving about the streets by persons who were not able to give a satisfactory account of themselves. A similar statute was held to be unconstitutionally vague in United States v. Margeson, E.D.Pa.1966, 259 F. Supp. 256, 268. At least eight hours after the arrest, the police checked the automobile in which defendant had been driving, from which a number of items, including money bags, hacksaw and screw driver, had been found in an earlier search at the scene of the arrest. The defendant had awakened suspicion because he had inquired whether there were any laundromats open at that hour (1:00 A.M.) and the police had been alerted to watch for burglars who were robbing laundromats in the area.

The motion to suppress in Nikrasch was directed to the automobile itself and all the items found therein. The later discovery of a false serial plate number and the true identification number of the automobile triggered a confession of theft by the defendant. He was convicted of stealing the automobile in a bench trial.

This Court reversed the conviction in Nikrasch which was based on evidence which included the false and true serial numbers, which the Trial Judge held to be the fruit of a search incidental to a lawful arrest. No objection was made to the receipt of these numbers and the then recent decision in Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777, was not brought to the Trial Judge's attention (367 F.2d 744). Again, that is not the case before us.

Indiana Statutes require display of license and registration on request of a police officer. Burns, Indiana Statutes Annotated, 47-2714, 47-2605, IC 1971, 9-1-4-40, 9-1-4-5. Such a request constitutes a routine investigation and not an arrest. United States v. Carter, D.D.C.1967, 275 F.Supp. 769, 770. The government does not contend that the confidential vehicle identification number was secured in a search incidental to a lawful arrest.

When defendant presented a driver's license and a registration which the officers knew did not belong to him, in the light of the information already available to them, they had good reason to suspect that the automobile also did not belong to the defendant. Having received some corroboration of the anonymous caller's statements, the police officers would have been remiss in their duty had they failed fully to identify the automobile. Unlike the police in Amador-Gonzalez v. United States, 5 Cir., 1968, 391 F.2d 308, 313 (also cited by defendant) the officers here were not searching for narcotics or other contraband, possibly hidden in a vehicle, after arresting the driver on a minor traffic violation, where there was no probable cause to believe the vehicle was transporting narcotics.

The Trial Judge in denying the motion to suppress held that the totality of the circumstances was sufficient to give the officers the right to search, if, indeed, this was a search. We agree.

However, we are satisfied that this was not actually a search, but a mere check on the identification of an automobile which could not be practicably accomplished at the scene in the street, blocking traffic. There was no delay. Officer Green testified that the check was made as soon as they got to the police garage.

The judgment of the District Court is affirmed.

Affirmed.

KILEY, Circuit Judge (dissenting).

I respectfully dissent.

I disagree that the police action was a mere inspection and not a search. "A search implies an examination...