PEOPLE OF MI V DONALD L WILSON
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STATE OF MICHIGAN
COURT OF APPEALS
FOR PUBLICATION
July 1, 2003
9:00 a.m.
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v
No. 232495
Oakland Circuit Court
LC No. 1999-168791-FH
DONALD L. WILSON,
Defendant-Appellant.
Updated Copy
August 15, 2003
Before: Markey, P.J., and Cavanagh and Hoekstra, JJ.
HOEKSTRA, J.
Defendant Donald L. Wilson appeals as of right his jury-trial convictions of two counts
of receiving or concealing stolen property, MCL 750.535(3)(a), two counts of altering a vehicle
identification number (VIN) with the intent to mislead another regarding the identity of the
vehicle, MCL 750.415(2), and one count each of obtaining money by false pretenses, MCL
750.218, and insurance fraud, MCL 500.4511(1). The trial court later vacated the insurancefraud conviction, which was charged as an alternative to the false-pretenses charge, and
sentenced defendant to two years' probation, with the first nine months to be served in the county
jail. Subsequently, the trial court reduced defendant's sentence to ninety days in jail with the
remainder of the sentence to be spent on a tether. Defendant was required to pay $78,621 in
restitution. We affirm.
I. Basic Facts
This case arose as a result of the Western Wayne Automobile Theft Unit's investigation
of the involvement of Miami Motors, an automobile dealership, in a crime ring that stole
automobiles and automotive parts. During the course of the investigation, officers from this unit
discovered that defendant possessed two vehicles, a red 1994 Mercedes 600 SL, and a gray 1997
Jeep Grand Cherokee, both of which contained numerous replacement parts taken from stolen
vehicles, specifically, a white 1995 Mercedes 500 SL, and a blue 1998 Jeep Grand Cherokee.
The 1994 Mercedes and the 1997 Jeep also contained parts that were missing their identification
labels. Defendant had financial and business dealings with Miami Motors and, according to a
police officer, had represented himself as an agent of Miami Motors.
II. Analysis
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A. The Motion to Quash
On appeal, defendant first asserts that the trial court erred in denying his motion to quash
one of the charges of receiving or concealing stolen property and both charges of altering a VIN.
We disagree.
We review de novo a circuit court's decision to grant or deny a motion to quash charges
to determine if the district court abused its discretion in binding over the defendant for trial.
People v Libbett, 251 Mich App 353, 357; 650 NW2d 407 (2002). A district court must bind a
defendant over for trial when the prosecutor presents competent evidence constituting probable
cause to believe that a felony was committed and that the defendant committed that felony.
MCL 766.13; MCR 6.110(E); People v Northey, 231 Mich App 568, 574; 591 NW2d 227
(1998). "Probable cause requires a quantum of evidence 'sufficient to cause a person of ordinary
prudence and caution to conscientiously entertain a reasonable belief ' of the accused's guilt."
People v Yost, 468 Mich 122, 126; 659 NW2d 604 (2003), quoting People v Justice (After
Remand), 454 Mich 334, 344; 562 NW2d 652 (1997). To bind a defendant over, the magistrate
must find that there is evidence regarding each element of the crime charged or evidence from
which the elements may be inferred. People v Hudson, 241 Mich App 268, 278; 615 NW2d 784
(2000).
1. Receiving or Concealing Stolen Property
With respect to the charge of receiving or concealing stolen property involving the 1998
Jeep parts, defendant argues that this count should have been quashed because the evidence did
not establish that he knew that the parts taken from the 1998 Jeep and installed in the 1997 Jeep
were stolen, embezzled, or converted. Defendant asserts that there was no evidence regarding
the whereabouts of the 1997 Jeep between August 11, 1998 (the day Elite Motors bought it at
auction and Miami Motors bought it from Elite Motors), and December 8, 1998 (the day the
defendant was seen driving it during Automobile Theft Unit surveillance), or the whereabouts of
the 1998 Jeep between September 29, 1998, the day it was stolen, and October 5, 1998, the day it
was recovered. Consequently, there was no evidence regarding how the parts from the 1998
Jeep came to be installed in the 1997 Jeep, or that defendant knew the replacement parts were
stolen.
MCL 750.535(1) provides that "[a] person shall not buy, receive, possess, conceal, or aid
in the concealment of stolen, embezzled, or converted money, goods, or property knowing the
money, goods, or property is stolen, embezzled, or converted." Defendant was convicted under
MCL 750.535(3)(a), receiving or concealing stolen property with a value of $1,000 or more but
less than $20,000. The elements of this offense are: "(1) the property was stolen; (2) the value
of the property met the statutory requirement; (3) defendant received, possessed, or concealed
the property with knowledge that the property was stolen; (4) the identity of the property as
being that previously stolen; and (5) the guilty actual or constructive knowledge of the defendant
that the property received or concealed was stolen." People v Pratt, 254 Mich App 425, 427;
656 NW2d 866 (2002).
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Despite the lack of evidence tracing the whereabouts of the 1998 Jeep parts between the
theft of the 1998 Jeep and their appearance on defendant's 1997 Jeep, there was sufficient
evidence for the district court to find probable cause to bind over defendant on the charge of
receiving or concealing. Defendant bought the 1997 Jeep as a salvage vehicle, knowing that it
was missing numerous essential parts; he therefore knew it was rebuilt with replacement parts.
Defendant owned another car, the 1994 Mercedes, that came from Miami Motors and had been
rebuilt with parts from another Mercedes that defendant, himself, had once owned and reported
as stolen, but which later ended up at Miami Motors. Further, defendant never went through
proper channels to acquire normal title and registration for the 1997 Jeep, presumably because
the stolen parts would be discovered during the inspection and recertification process. Instead,
he kept the vehicle under the insurance salvage title and drove it with a dealer plate, although this
practice violated subsection 217c(7) of the Michigan Vehicle Code, MCL 257.217c(7), now
subsection 217c(6), MCL 257.217c(6). Because this evidence established probable cause that
defendant knew his 1997 Jeep contained stolen parts, the district court did not abuse its
discretion in binding over defendant, and the trial court did not err in denying defendant's motion
to quash. Libbett, supra.
2. Altering a VIN
With respect to the two counts of altering a VIN, defendant argues that the evidence at
the preliminary examination did not establish probable cause to bind him over under the felony
provision of this statute, MCL 750.415(2), and thus the trial court should have quashed these
counts because the magistrate abused its discretion in binding defendant over on these counts.
According to defendant, at most, there was probable cause that he violated the misdemeanor
provision of this statute, MCL 750.415(1). In a three-part argument, defendant asserts that the
evidence did not establish probable cause for a felony violation because there was no evidence
that he intended to mislead anyone regarding the identity of the vehicle, since the statute
prohibits misidentification of vehicles, not parts, and because the evidence established that there
was a legitimate reason why the labels for the parts were missing.
Defendant's assertion that the prosecution must present evidence that he intended to
mislead someone regarding the identity of the vehicle contradicts our Supreme Court's decision
in People v Venticinque, 459 Mich 90; 586 NW2d 732 (1998). In Venticinque, our Supreme
Court stated that a plain reading of MCL 750.415 "illustrates that possession of the contraband is
prima facie evidence of a violation of either subsection 415(1) or 415(2)," id. at 99, and thus held
"that possession of the contraband is a prima facie showing of either the felony or the
misdemeanor offense," id. at 102. The Court further commented that selection of a felony or
misdemeanor charge is a matter of prosecutorial discretion. Id. at 100-101. In light of
Venticinque, supra, defendant's argument that the trial court should have quashed the two counts
regarding altering a VIN on grounds of insufficient evidence of intent to mislead is without
merit.
Next, defendant argues that the fenders, bumpers, and hood from the 1998 Jeep, and an
air bag from the 1995 Mercedes, do not constitute vehicles and that his possession of the parts
cannot constitute prima facie evidence of a misidentification of a vehicle. This issue raises a
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question of statutory construction, which is reviewed de novo. People v Callon, 256 Mich App
312, 315; 662 NW2d 501 (2003).
"The fundamental rule of statutory construction is to discern and give effect to the intent
of the Legislature." Venticinque, supra at 99. If the statute's language is clear and unambiguous,
this Court must enforce the language as written. Id. at 99-100. "Unless defined in the statute,
every word or phrase of the statute should be accorded its plain and ordinary meaning, taking
into account the context in which the words are used." People v McDaniel, 256 Mich App 165,
172; 662 NW2d 101 (2003). Recently, in Houghton Lake Area Tourism & Convention Bureau v
Wood, 255 Mich App 127; 662 NW2d 758 (2003), this Court explained:
This Court must not determine whether there is a "more proper way" the
Legislature should have chosen, but rather we must determine what the
Legislature actually intended. This Court must not consider the wisdom of the
Legislature's decisions regarding statutory provisions. Further, this Court should
generally not speculate about the Legislature's intent beyond the words actually
used in the statute. Specifically, this Court should assume that an omission was
intentional. However, judicial construction is appropriate when reasonable
persons could interpret a statute differently. This Court must determine the
reasonable construction that best effects the Legislature's intent. [Id. at 134-135
(citations omitted).]
Further, "application of the absurd result rule is appropriate only when attempting to determine
the Legislature's intent regarding an ambiguous statute; it cannot defeat a statute's clear
meaning." Id. at 143.
Here, the subsection in question, MCL 750.415(2), states:
A person who, with the intent to mislead another as to the identity of a
vehicle, conceals or misrepresents the identity of a motor vehicle or of a
mechanical device by removing or defacing the manufacturer's serial number or
the engine or motor number on the motor vehicle, or by replacing a part of the
motor vehicle or mechanical device bearing the serial number or engine or motor
number of the vehicle with a new part upon which the proper serial number or
engine or motor number has not been stamped, is guilty of a felony, and if the
person is a licensed dealer, the dealer's license shall be revoked.
The phrase "conceals or misrepresents the identity of a motor vehicle or of a mechanical
device" states the primary offense prohibited by the statute. Notably, this phrase proscribes
misrepresentation of the identity of mechanical devices as well as entire vehicles. However, the
following phrases set forth the two specific acts that constitute violations. The first act,
"removing or defacing the manufacturer's serial number or the engine or motor number on the
motor vehicle" (emphasis supplied), clearly does not apply to the removal or defacement of the
identification number on a part of the motor vehicle, other than the engine. The second act,
"replacing a part of the motor vehicle or mechanical device bearing the serial number or engine
or motor number of the vehicle with a new part, upon which the proper serial number or engine
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or motor number has not been stamped" (emphasis supplied), also does not apply here. The
prosecutor did not show that the air bag, bumpers, hood, or fenders were not stamped with the
proper number, but rather that the labels were missing from the bumpers, hood, and fenders, and
that the label was partly scraped-off the air bag. Moreover, the statute specifically refers to parts
"on which the proper number has not been stamped," as opposed to parts on which the proper
number is not stamped. This use of the past tense limits the statute's application to parts that
were not stamped with the correct number, and excludes parts that were originally stamped with
the correct number, but do not currently bear the stamp. Thus, strictly construed, subsection
415(2) leaves a loophole where the accused removes or defaces the identification number on a
part of a motor vehicle or mechanical device. Further, there is no apparent ambiguity in this
subsection.
However, our analysis does not end here because when subsection 415(2) is read in
conjunction with subsection 415(3), the description of what constitutes an offense in subsection
415(2) becomes ambiguous. Subsection 415(3) provides:
In all prosecutions under this section, possession by a person of a motor
vehicle or of a mechanical device with the manufacturer's serial number or the
engine or motor number removed, defaced, destroyed or altered or with a part
bearing the number or numbers replaced by one on which the proper number does
not appear, shall be prima facie evidence of violation of this section.
Under this subsection, the inclusive phrase "removed, defaced, destroyed or altered" applies to
the identification number on both motor vehicles and mechanical devices. It does not assign
different classifications to motor vehicles and parts, or to defaced or removed numbers and
numbers that were never stamped. Furthermore, the phrase "with a part bearing the number or
numbers replaced by one on which the proper number does not appear" also refers to both motor
vehicles and mechanical devices. Finally, the phrase "on which the proper number does not
appear" makes no distinction on the basis of whether the absent number was removed, altered,
defaced, or never imprinted. Thus, subsection 415(3) comprehensively proscribes any and all
methods of misrepresenting identification numbers on the motor vehicle itself or any constituent
part.
Technically, subsection 415(3) does not define the offense, but rather provides what
circumstances constitute prima facie evidence of a violation. However, these circumstances are
broader than the strictly defined offense in subsection 415(2), and this discrepancy creates an
ambiguity. Therefore, it is permissible to interpret the statute to determine a reasonable
construction that best effects legislative intent, and to avoid an unjust and absurd result.
Houghton Lake, supra at 134-135, 142-143.
We believe that legislative intent would best be fulfilled by interpreting subsection 415(3)
as a clarification of the definition of the offense. Subsection 415(3) sets forth a comprehensive
set of circumstances that constitute a violation under the statute. It closes the seemingly absurd
and unjust loophole left by subsection 415(2). Further, this interpretation advances the
ostensible objective of MCL 750.415. In Venticinque, supra, the Supreme Court, interpreting the
phrase "identity of the vehicle," as used in subsections 415(1) and (2), held that the phrase could
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refer to either the vehicle from which the parts were stolen, or the vehicle in which they were
installed. Id. at 102. The Court's discussion of the policy underlying this conclusion clearly
supports our interpretation of subsection 415(3) as a clarified definition of the offense:
To read the statute otherwise would mean that there is no penalty for
replacing proper parts with improper parts as long as the appearance of the
vehicle remains the same. If such a view were adopted, then the evident
legislative purpose to deter "chop shop" operations would be undermined because
the felony offense could be made out only if so many parts were replaced that the
vehicle in question was no longer recognizable. Further, it would impermissibly
read out of the statute the language penalizing as a felony "replacing a part of the
motor vehicle or mechanical device."
The identity of the vehicle is thus the sum of its parts, not just its serial
number or its appearance. In short, the defendant may have intended to mislead
another regarding the identity of the vehicle in question or the identity of the
vehicle from which the part was taken. The statute prohibits the installation of
improper parts that lead a third party to believe that a legitimate vehicle with
legitimate parts is being delivered, which is exactly what occurred here.
[Venticinque, supra at 102-103.]
Rebuilding a stripped car with stolen replacement parts that have missing or defaced
identification numbers is obviously an "installation of improper parts" meant to mislead someone
into believing that an automobile is "a legitimate vehicle with legitimate parts," and is the sort of
conduct that the Legislature meant to penalize when it enacted the statute.1 Consequently,
possession of an air bag, bumpers, hood, and fenders with removed or altered identification
labels does constitute a violation of MCL 750.415.2 Accordingly, the trial court properly denied
defendant's motion to quash the two counts of altering a VIN with the intent to mislead others.
Defendant also asserts that repairs performed on the 1998 Jeep after a March 1998
accident provided a legitimate reason for the absence of labels on the hood, fenders, and bumper.
Although there was evidence that the insurer paid for replacement of, or repairs to, the bumper,
1
Before the 1978 amendment of MCL 750.415, the text that is now subsection 415(3) was not a
separate subsection, but the second paragraph following the paragraph that defined the offense.
This composition further supports our conclusion that subsection 415(3) can and should be read
as an extension and clarification of the definition of the offense. Venticinque, supra at 98-99 and
n 3.
2
We note that our analysis applies to both subsections 415(1) and (2) because the only
distinction between these provisions is the qualifying phrase in the latter subsection, "with the
intent to mislead another as to the identity of a vehicle," which, as discussed above, elevates the
offense from a misdemeanor to a felony.
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grill, hood, and fenders on the 1998 Jeep in March 1998, there was no evidence that this work
caused the labels to be removed. This evidence did not defeat probable cause.
B. The Motion to Suppress Evidence
Next, defendant argues that the trial court should have suppressed evidence, including the
vehicles and the vehicle parts, as the fruit of an unconstitutional search. Defendant contends that
the search warrant for financial and tax records that authorized the officers' presence in his home
was a ruse to gain entry and examine the vehicles, and that the officers' examination of the VINs
of various parts of the vehicles in the garage exceeded the scope of the warrant, and that the
plain-view exception is inapplicable.
We review a trial court's findings of fact in a suppression hearing for clear error;
however, we review de novo a trial court's ultimate decision on a motion to suppress. People v
Beuschlein, 245 Mich App 744, 748; 630 NW2d 921 (2001); People v Garvin, 235 Mich App 90,
96; 597 NW2d 194 (1999). The application of the exclusionary rule to an alleged Fourth
Amendment violation is a question of law that is reviewed de novo on appeal. People v Custer,
465 Mich 319, 326 (Markman, J.), 345 (Weaver, J.); 630 NW2d 870 (2001).
The federal and Michigan constitutions protect persons from unreasonable searches and
seizures. People v Champion, 452 Mich 92, 97; 549 NW2d 849 (1996); US Const, Am IV;
Const 1963, art 1, § 11. Generally, a search without a warrant or a seizure without a warrant is
unreasonable per se, "subject to several specifically established and well-delineated exceptions."
Id. at 98; People v Gonzalez, 256 Mich App 212, 232; 663 NW2d 499 (2003). Evidence seized
pursuant to an unconstitutional search must be excluded from trial unless an exception to the
exclusionary rule is applicable. People v Stevens (After Remand), 460 Mich 626, 634, 636; 597
NW2d 53 (1999).
1. Search Warrant As Pretext
In support of his argument that evidence of the vehicles and vehicle parts should have
been suppressed because the search warrant for tax records was a ruse to gain entry into
defendant's home to examine the vehicles, defendant relies on United States v Sanchez, 509 F2d
886 (CA 6, 1975). Defendant suggests that suppression of the challenged evidence was required
because the officers were not authorized to search the vehicles. However, more recent
authorities have reached decisions contrary to Sanchez. Indeed, in light of two decisions by the
United States Supreme Court, Horton v California, 496 US 128; 110 S Ct 2301; 110 L Ed 2d 112
(1990), and Whren v United States, 517 US 806; 116 S Ct 1769; 135 L Ed 2d 89 (1996), we
believe that Sanchez is no longer reliable authority to the extent that it excluded evidence seized
pursuant to a search where the warrant authorizing the search was unrelated to that evidence, and
the officers conducting the search subjectively expected or intended to find that evidence when
they executed the warrant.
In Horton, supra, the Supreme Court considered and rejected the argument that an officer
is precluded from seizing and searching for items not listed in the search warrant if the officer
had an expectation of finding it in the course of the search. Id. at 139-140. The Court stated that
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"evenhanded law enforcement is best achieved by the application of objective standards of
conduct, rather than standards that depend upon the subjective state of mind of the officer." Id.
at 138. The Court further stated:
The fact that an officer is interested in an item of evidence and fully
expects to find it in the course of a search should not invalidate its seizure if the
search is confined in area and duration by the terms of a warrant or a valid
exception to the warrant requirement. If the officer has knowledge approaching
certainty that the item will be found, we see no reason why he or she would
deliberately omit a particular description of the item to be seized from the
application for a search warrant. Specification of the additional item could only
permit the officer to expand the scope of the search. On the other hand, if he or
she has a valid warrant to search for one item and merely a suspicion concerning
the second, whether or not it amounts to probable cause, we fail to see why that
suspicion should immunize the second item from seizure if it is found during a
lawful search for the first. [Id. at 138-139.]
The Court also stated that the inadvertence requirement was not necessary to prevent the police
"from conducting general searches, or from converting specific warrants into general warrants,"
because this interest "is already served by the requirements that no warrant issue unless it
particularly describ[es] the place to be searched and the persons or things to be seized." Id. at
139 (citation and internal quotes omitted). The Court remarked that the particularity
requirements in warrants served the interest of limiting the scope and duration of a search, and
that an inadvertence requirement would not serve any additional Fourth Amendment interest. Id.
at 140.
In United States v Ewain, 88 F3d 689 (CA 9, 1996), the United States Court of Appeals
for the Ninth Circuit applied the Horton decision in circumstances analogous to the search in the
instant case. In Ewain, the defendant's roommate informed a postal inspector that the defendant
was counterfeiting mailbox keys and trading them for methamphetamine. Id. at 691. The postal
inspector informed a state narcotics detective, who arranged a controlled buy and then obtained a
search warrant for evidence of drug dealing. The postal inspector did not believe he had
sufficient probable cause to obtain a search warrant for mail theft, but the narcotics officer asked
him to join the search because he was skilled at detecting evidence of postal crimes. Id. at 691,
694. The officers found at least two plastic bags that appeared to contain methamphetamine, and
a "cornucopia of postal theft evidence," including a special mailbox key. Id. at 691. The
defendant's motion to suppress the evidence of postal theft was denied, and he was convicted.
Id. at 692.
The defendant argued on appeal that the postal-theft evidence was illegally seized
because the warrant authorized only a drug-related search. He contended that the warrant was a
pretext because the narcotics officer brought the postal officer to help detect evidence that the
narcotics officer would not have recognized as relevant to postal crimes. Id. The Ninth Circuit
rejected the argument that the warrant was a pretext because the district court found that the
police really were looking for drug-related evidence. Id. However, the court stated that this was
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not determinative. Id. at 692, 694. The Ninth Circuit reviewed Horton, supra, and other
precedents, and stated that if a police officer has a valid warrant for an item, and fully expects to
find another item, the officer's suspicion or expectation does not defeat the lawfulness of the
seizure. Id. at 693, citing Horton, supra at 138-139. The Ninth Circuit stated that the officers in
Ewain looked only in places where they could reasonably expect to find methamphetamine
evidence, which was proper under the warrant, and that under these circumstances the others did
not violate the defendant's constitutional rights. Id. at 694.
The Ninth Circuit continued its analysis by considering the significance of the fact that
the narcotics officer brought a postal officer to the search for his expertise in spotting evidence of
postal theft. Id. The Ninth Circuit stated that the relevant inquiry was not the officers' subjective
good faith or ulterior motives, but whether they exceeded the scope of the search warrant. Id.
The Ninth Circuit noted that factors such as subjective motivations and inviting along another
officer from another area of investigation could be evidence that the officers went beyond the
scope permitted by the warrant. However, the crucial question was still whether the officers
confined their search to areas relevant to the warrant. Id. at 694-695. The Ninth Circuit
concluded that the district court properly denied the defendant's motion to suppress because the
search was within the scope authorized by the warrant. Id. at 695.
Horton and Ewain significantly erode any relevance that an officer's subjective intent or
expectations might have with regard to seizures of evidence in plain view and discovered during
the execution of an unrelated search warrant. The United States Supreme Court further eroded
the significance of an officer's subjective intent in Whren, supra.
In Whren, the defendant moved to suppress evidence on the grounds that the police did
not have probable cause to stop his car to look for drugs and that the officer's explanation that he
stopped the car for a traffic violation was a pretext. Id. at 809. The federal district court denied
the motion, and the federal appeals court affirmed. Id. On appeal, the Supreme Court, like the
lower courts, rejected the argument that the officer's supposed pretext for stopping the vehicle
invalidated the search:
Not only have we never held, outside the context of inventory search or
administrative inspection . . . that an officer's motive invalidates objectively
justifiable behavior under the Fourth Amendment; but we have repeatedly held
and asserted the contrary. [Id. at 812.]
The Supreme Court then reviewed a line of cases holding that an objectively legal search
remains legal, notwithstanding the officers' subjective ulterior motives. Id. at 812-813. The
Court stated that "[s]ubjective intentions play no role in ordinary, probable-cause Fourth
Amendment analysis." Id. at 813.
In United States v Van Dreel, 155 F3d 902 (CA 7, 1998), the United States Court of
Appeals for the Seventh Circuit found Whren applicable in circumstances comparable to the
instant case. In Van Dreel, while investigating the defendant for drug violations, the police
conducted two authorized searches of his property, but found little evidence of drugs. However,
they did find evidence of possible hunting violations and decided to use that evidence to obtain
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another search warrant. Id. at 903. Officers of the state Department of Natural Resources
obtained the new warrant, which authorized a search for evidence of deer-poaching violations,
including carcasses, documentation of meat sales, weapons, ammunition, and other relevant
items. Id. at 903-904. An officer from a drug task force joined the search, hoping to find
evidence of drug dealing. Id. at 904. While executing the search, the officer from the drug task
force pushed forward the seat of a junked pickup truck and found plastic wrap stained with a
suspicious red grease, which tied the defendant to another suspected drug trafficker, who had a
car with a secret compartment containing the same red grease. Id. The defendant unsuccessfully
moved to suppress the plastic wrap on the ground that the hunting-violation warrant was a
pretext to search for drug evidence, and that the officer exceeded the scope of the warrant by
searching under the truck seat. The trial court denied the motion, and the defendant was
convicted of three counts of drug violations. Id.
On appeal, the Seventh Circuit, applying the rationale in Whren, supra, concluded that
the subjective intentions of the officer from the drug task force "played no role in the probable
cause analysis in this case." Van Dreel, supra at 905. The Seventh Circuit stated that once a
valid warrant has been issued, the officer's subjective intent in conducting the search is
irrelevant. Id. The Seventh Circuit noted that the defendant did not challenge the validity of the
hunting-violations warrant, and concluded that this constituted a tacit admission that the police
had probable cause to believe they would find evidence of hunting violations on the premises.
Id. The Seventh Circuit also determined that the officer did not exceed the limits of the warrant
when he looked under the truck seat, because this was a place where the officer might have
found ammunition, an item listed in the search warrant. Id.
Horton, Whren, Ewain, and Van Dreel all effectively defeat defendant's argument in the
instant case that the search was invalid because the tax-records warrant was a pretext. As long as
the warrant was valid, and the officers confined their search to areas permitted by the warrant,
their subjective intent was irrelevant. The fact that auto-theft investigators were involved in a
search related to tax violations does not alter this analysis, provided the search was properly
limited—even if the officers subjectively expected to find evidence of stolen vehicle parts. Thus,
defendant's argument is without merit.3
2. Propriety of Search of Vehicles
3
Nonetheless, Sanchez is distinguishable because record evidence supports the trial court's
finding in the instant case that "[d]efendant has presented absolutely no evidence to show that the
officers had probable cause to suspect the presence of the stolen vehicles in the [d]efendant's
garage so as to require the officers to procure a search warrant." Defendant's contention to the
contrary is based on the inference that there is no other explanation for why automobile-theft
investigators were involved in a search related to tax fraud and money laundering allegations.
However, the officers explained that they were involved because they had knowledge of
defendant's suspicious dealings with Miami Motors. This information is relevant to tax-fraud
and money-laundering allegations, and refutes the inference that the search was really a pretext
to advance their auto-theft investigations.
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Next, defendant challenges the trial court's determination that an officer's search of the
vehicles in defendant's garage was permissible because there is no privacy interest in a VIN and
because the plain-view exception applied under the facts of this case.
a. Privacy Interest in VIN
With regard to whether there is a privacy interest in a VIN, defendant does not dispute
that the officers were permitted to look through the windshields at the public VIN on the
dashboards of the vehicles, or that the search warrant authorized the inspection of areas of the
vehicles where the officers might find documents related to the search warrant. However, he
contends that the officers exceeded the search by "looking for hidden VINs," i.e., lifting the
hood, looking under the seats, and other similar acts. The prosecution does not argue that this
aspect of the search was related to the tax-records warrant, but instead argues that the officers
were looking for VINs, and that there is no privacy interest in a VIN, including one not within
public view.
We disagree with the prosecution's assertion that a line of cases, including New York v
Class, 475 US 106; 106 S Ct 960; 89 L Ed 2d 81 (1986), People v Brooks, 405 Mich 225; 274
NW2d 430 (1979), People v Smith, 162 Mich App 534; 413 NW2d 42 (1987), and People v
Dinsmore, 166 Mich App 33; 420 NW2d 167 (1988), vacated on other grounds 430 Mich 894
(1988), unambiguously declares that any viewing of any VIN is not a search and always is
permissible. None of the Michigan cases interpreting Brooks or Class inferred a broad, allpurpose exception for VINs. See also People v Brewer, 112 Mich App 670; 317 NW2d 218
(1981); United States v Caro, 248 F3d 1240 (CA 10, 2001) (applying a narrow interpretation of
the holding in Class, supra). Rather, the authorities on which the prosecution relies implicitly
require probable cause for searches of VINs hidden within a vehicle. Thus, the trial court in the
present case erred when it relied on the "VIN exemption" to justify the search of the vehicles.
However, this Court will not reverse a trial court's order if it reached the right result for
the wrong reason. People v Lyon, 227 Mich App 599, 612-613; 577 NW2d 124 (1998). Neither
the parties nor the trial court discussed the "automobile exception" that allows searches without
warrants or seizures without warrants of automobiles on the basis of probable cause to believe
that the vehicle contains contraband. People v Levine, 461 Mich 172, 179; 600 NW2d 622
(1999). The exception applies if the search is based on facts that would have justified the
issuance of a warrant, although a warrant was not actually obtained. Id. Two bases for the
exception are the inherent mobility of automobiles and the pervasive regulation of vehicles,
which reduces the expectation of privacy. People v Carter, 250 Mich App 510, 515, 517-518;
655 NW2d 236 (2002). The exception applies even in circumstances where it is unlikely that the
vehicle will soon be driven away. Id. at 514-517. If probable cause exists to believe that a
vehicle contains contraband, the ability to search without a warrant includes the search of closed
containers that might conceal the object of the search. People v Kazmierczak, 461 Mich 411,
422; 605 NW2d 667 (2000) (The smell of marijuana established probable cause permitting the
officers to search in the trunk.).
Here, the trial court's error does not affect the outcome in this case because there was
probable cause to continue searching for a VIN even after the public VIN checks did not detect a
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theft. An officer at the scene knew from his past experience with the 1994 Mercedes that the
vehicle once had several major parts missing, but now was completely rebuilt. He knew that
defendant once reported as stolen a 1995 Mercedes that used many of the same parts of the 1994
Mercedes. He knew that the vehicles were associated with Miami Motors, which had a history
of rebuilding stripped cars with parts from stolen cars. He also knew from checking the Law
Enforcement Information Network (LEIN) that the 1997 Jeep was a salvage vehicle that had
been stripped of major parts, but was now rebuilt, and that defendant was driving it with a
salvage title and a dealer plate. Given these circumstances, the officer had probable cause to
believe that there were stolen parts in the vehicles. The search was therefore proper under the
automobile exception. Levine, supra at 179.
b. Plain-View Exception
Further, the search of the vehicles was permissible under the plain-view doctrine. In
Champion, supra at 101, our Supreme Court summarized the plain-view doctrine:
The plain view doctrine allows police officers to seize, without a warrant,
items in plain view if the officers are lawfully in a position from which they view
the item, and if the item's incriminating character is immediately apparent.
Horton v California, 496 US 128; 110 S Ct 2301; 110 L Ed 2d 112 (1990);
People v Cooke, 194 Mich App 534; 487 NW2d 497 (1992). A fundamental
characteristic of the doctrine is that it is exclusively a seizure rationale. No
searching, no matter how minimal, may be done under the auspices of the plain
view doctrine.
Defendant, relying on Arizona v Hicks, 480 US 321; 107 S Ct 1149; 94 L Ed 2d 347 (1987),
argues that the plain-view doctrine does not apply because the incriminating character of the
vehicles was not immediately apparent and that the officer discovered incriminating information
only after he began the search.
The record reveals that the officer was lawfully in the house pursuant to a valid warrant
to search for evidence of tax-code violations. This warrant permitted the officer to enter the
garage, which was a place where he could reasonably expect to find items listed in the warrant.
Once in the garage, he was lawfully in a position from which he had a plain view of the 1994
Mercedes and 1997 Jeep. His plain view of the vehicles, his permissible LEIN checks of the
dashboard VINs, and his prior knowledge of the history of the vehicles and their association with
Miami Motors established probable cause that they contained stolen parts. Under the plain-view
doctrine and the automobile exception to searches without warrants, the officer permissibly
continued the search by looking under the hood, under the fenders, inside the passenger
compartment, and in other areas. The officer did not violate defendant's Fourth Amendment
right against an unreasonable search and seizure, and the trial court properly denied the motion to
suppress.
C. Ineffective Assistance of Counsel Claim
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Finally, defendant argues that trial counsel was ineffective for failing to challenge the
search warrant. To establish ineffective assistance of counsel,
[f]irst, the defendant must show that counsel's performance was deficient. This
requires showing that counsel made errors so serious that counsel was not
performing as the counsel guaranteed by the Sixth Amendment. In so doing, the
defendant must overcome a strong presumption that counsel's performance
constituted sound trial strategy. Second, the defendant must show that the
deficient performance prejudiced the defense. To demonstrate prejudice, the
defendant must show the existence of a reasonable probability that, but for
counsel's error, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the
outcome. Because the defendant bears the burden of demonstrating both deficient
performance and prejudice, the defendant necessarily bears the burden of
establishing the factual predicate for his claim. [People v Carbin, 463 Mich 590,
600; 623 NW2d 884 (2001) (internal citations and quotations omitted).]
Because there was no Ginther4 hearing, our review is limited to errors apparent on the record.
People v Knapp, 244 Mich App 361, 385; 624 NW2d 227 (2001).
Defendant can prevail on this issue only if he can demonstrate that the tax-records
warrant should not have been issued. A magistrate may issue a search warrant only on a
showing of probable cause, supported by oath or affirmation. People v Kaslowski, 239 Mich
App 320, 323; 608 NW2d 539 (2000); Const 1963, art 1, § 11. Probable cause is present when
the facts and circumstances would allow a reasonable person to believe that the evidence or
contraband sought is in the stated place. Kazmierczak, supra at 417-418; People v Brannon, 194
Mich App 121, 132; 486 NW2d 83 (1992).
Having reviewed the record, we find no evidence supporting defendant's claim that there
was insufficient probable cause in support of the tax-records warrant. Defendant does not
contend that any of the allegations in the officers' affidavit were fabricated, or that they failed to
establish probable cause. The affidavit for search warrant alleged that defendant had not filed a
Michigan income-tax return since 1992, which created a suspicion of illegality because
defendant had substantial financial dealings with Miami Motors, he reported income on federal
income-tax returns, and his automobile and home purchases showed that he had substantial
income.
Defendant's argument is based entirely on his contention that the officers must have had
an ulterior motive because there is no legitimate reason why automobile-theft investigators
would be involved in a search for tax records. However, this argument fails to address the key
question, namely, whether there was probable cause for the tax-records warrant. Because
4
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
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defendant fails to establish that there was insufficient evidence to establish probable cause, he
cannot establish that his trial counsel's performance was deficient. Carbin, supra.
Affirmed.
/s/ Joel P. Hoekstra
/s/ Jane E. Markey
/s/ Mark J. Cavanagh
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