United States v. Zemke

• Decision Date: 22 May 1972
• Docket Number: No. 71-1199,71-1200.,71-1199
• Citation: 457 F.2d 110
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jerome Alvin ZEMKE, Charles Joseph Canesi, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

457 F.2d 110 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. Jerome Alvin ZEMKE, Charles Joseph Canesi, Defendants-Appellants.

Nos. 71-1199, 71-1200.

United States Court of Appeals, Seventh Circuit.

February 7, 1972.

Certiorari Denied May 22, 1972.

COPYRIGHT MATERIAL OMITTED

Robert E. Poynter, Lafayette, Ind., for defendants-appellants.

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

Before DUFFY, Senior Circuit Judge, KERNER¹ and PELL, Circuit Judges.

Certiorari Denied May 22, 1972. See 92 S.Ct. 2051.

PELL, Circuit Judge.

Zemke and Canesi, defendants, have appealed from their jury trial conviction of violating 18 U.S.C. § 2312,² interstate transportation of motor vehicles, in this case motorcycles. The defendants raise search and seizure questions and challenge one instruction given by the district court.

On June 17, 1970, while on routine patrol Indiana State Police Officer Stout observed the defendants and the motorcycles in question by bridge pillars on an interstate highway in northern Indiana. The officer stopped to determine if the defendants needed assistance.

They responded negatively; however, Stout requested some identification such as a driver's license. He noted that both had Minnesota operator licenses but the two motorcycles bore Massachusetts tags. At about this point Officer Stout glanced at the serial number of one of the vehicles and it appeared to him that at least one of the visible numbers had been altered. He then looked at the serial number of the other motorcycle and it also appeared to him to have been changed from that which the manufacturer had placed thereon.

Officer Stout advised the cyclists that it was a violation of Indiana law to be in possession of a motor vehicle with an altered serial number. He also told them he "would like to look into it a little more carefully." They "agreed to proceed, approximately six miles or so down the road to a service station where we could be off the road in a little safer area."

Upon arrival at the station, the officer checked the manufacturer's confidential number concealed under the crank case. By way of contrast, the number at which Stout had first looked while on the roadside was apparently clearly visible "just above the pedals a few inches on the left side of the vehicle."

Upon ascertaining the numbers on the two locations were not mutually consonant, Stout arrested both defendants for violation of the Indiana statute concerning possession of motor vehicles with altered serial numbers.

Following the arrest, the officer looked into the saddle bag area and found a propane torch and solder. Stout testified that serial numbers could be altered temporarily by the use of a soldering process but that it could not be done with a soldering iron as a torch would be required to heat the entire area. Subsequently it was determined that the motorcycles in fact had been stolen in Tonawanda, New York and Zemke and Canesi were thereupon indicted for the federal offense upon which they were tried.

The defendants now contend that their convictions should be reversed because viewing the facts from the position of the police officer on the scene, he did not have probable cause to search their vehicles without their consent and he did not have probable cause to arrest them until he had conducted his allegedly unlawful search. However, the record is wholly devoid of any showing that this contention was brought to the attention of the district court by motion to suppress prior to the trial, objections to testimony or exhibits during trial, or by any post-conviction motion.

Unless this argument of the defendants sets forth a plain error or defect affecting substantial rights we need give it no further attention. Rule 52(a), Fed.R.Crim.P. However, we need not reach a decision on this phase of the matter as we find that the contention would have been meritless even if it had been raised in the district court.

In giving consideration to this matter we have difficulty discerning whether the challenge is directed at the visual observation of the serial number at the roadside, the more searching examination for the confidential number, the search of the saddle bag area following the arrest, or all three. Proceeding on the assumption that the defendants are willing to rely on any one which might be the basis of a reversal, we will look at all of the possibilities.

Beginning with the premise of greater liberality of the applicable search and seizure law in the case of a vehicle because of its mobility, Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949), Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), we find nothing unreasonable nor any improper invasion of the defendants' rights by virtue of the officer noting at the bridge situs that one of the numbers failed to carry a badge of apparent authenticity. We cannot conceive that when confronted with this plain and open evidence of a violation of the state law, whose enforcement was his duty, the officer pursued other than a proper course of action.

Defendants place undue significance on the word "appeared" in the officer's testimony. However, that which is visible to the perception of the viewer is that which appears to him. Even if the officer's glance had brought merely the suggestion of an alteration to his mind it should not in our opinion be a basis for him just to drop the matter there subject to checking through records back at the post while the cyclists proceeded merrily toward unknown destinations.

While we do not consider the police activity at the roadside spot as being a search, to the extent, if any, that it might be called such it would bring into play the application of the "plain view" doctrine, "where a police officer is not searching for evidence . . . but nonetheless inadvertently comes across an incriminating object." Coolidge v. New Hampshire, 403 U.S. 443, 466, 91 S.Ct. 2022, 2038, 29 L.Ed.2d 564 (1971).

The officer having a legitimate ground for checking the serial number, United States v. Powers, 439 F.2d 373, 376 (4th Cir.), cert. denied, 402 U.S. 1011, 91 S.Ct. 2198, 29 L.Ed.2d 434 (1971), he could have proceeded to do so at that juncture with adequate probable cause. This, of course, would have involved the cross check with the hidden number which in turn would have brought about the arrest at the first point of contact. Rather than doing so along the edge of a busy interstate highway it was agreed to proceed to a safer place. This was consistent with the innocence of wrongdoing claimed by the defendants. In fact, Stout testified that Canesi seemed "quite surprised" when the matter of possible numerical alteration was brought to the attention of the defendants.

We do not find an invasion of protected rights in the deferral to a place of safety of the check of the quasi-public identification numbers. Under the circumstances, proceeding down the highway to an appropriate place for the inspection was not an unlawful detention nor harassment of the cyclists.

Since the completion of the inspection was permissible at the point of first contact it did not become less so when and where actually conducted.

The third possible search and seizure did, of course, come closer to that status by the invasion of the saddle bag area, comparable to the glove compartment of an automobile, generally considered an area of increased privacy. See: United States v. Powers, supra, 439 F.2d at p. 375.

Here, however, the search was incident to a lawful arrest and its scope was within proper limits. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969).

Zemke and Canesi also complain, however, that their rights were violated in that they were not advised that they need not consent to a search and therefore their agreeing to accompany the officer to the service station area was compulsively induced.

The theory here seems to be that Officer Stout at the roadside did not have...