The opinion
Levin, J.
(dissenting). Raymond Gallagher was convicted of receiving or concealing stolen property. *441 1 The issue is the constitutionality of a presumption in the receiving or concealing stolen property statute that a dealer in personal property who buys property with an altered or obliterated identifying number on an external surface shall be presumed to have bought it knowing it to have been stolen. 2 We would hold that the people have failed to prove that the statutory presumption is constitutional as applied to Gallagher.
I
Gallagher was in the business of salvaging and rebuilding automobiles. He was towing a partially stripped 1972 Cadillac when stopped by police in June, 1973. The police said that the towed car attracted their attention because it was a late model vehicle missing a substantial number of parts. When asked to produce proof of ownership, Gallagher said that he had recently purchased the automobile and had no papers. The automobile had been stolen in May.
No witnesses were presented by the defense. The prosecutor argued that the presumption of guilty knowledge had not been rebutted. The judge’s instructions to the jury included a reading of the statutory presumption.
II
The statute provides:
"Any person being a dealer in or collector of any merchandise or personal property, or the agent, employee, or representative of a dealer or collector who fails to make reasonable inquiry that the person selling *442 or delivering any stolen, embezzled, or converted property to him has a legal right to do so or who buys or receives any such property which has a registration, serial, or other identifying number altered or obliterated on any external surface thereof, shall be presumed to have bought or received such property knowing it to have been stolen, embezzled, or converted. This presumption may be rebutted by proof.” MCL 750.535(2); MSA 28.803(2).
Gallagher contends that the presumption violates the Due Process Clause because it cannot be said with substantial assurance that the presumed fact follows from the proved facts. The prosecutor responds that common experience tells one that a dealer who receives an automobile with an altered or obliterated identifying number is likely to know that the car was stolen. We disagree with his assertion that the information needed to make this determination can be culled from "common experience” and would hold that the prosecution failed in this case to demonstrate the reasonableness of the presumption.
The Supreme Court of the United States has held that a statutory presumption is violative of the Due Process Clause unless there is a rational connection between the fact proved and the fact presumed. Tot v United States, 319 US 463, 467-468 ; 63 S Ct 1241 ; 87 L Ed 1519 (1943). In Leary v United States, 395 US 6, 36, 37-38 ; 89 S Ct 1532 ; 23 L Ed 2d 57 (1969), the Court declared
"that a criminal statutory presumption must be regarded as 'irrational’ or 'arbitrary,’ and hence unconstitutional, unless it can at least be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend.”
*443 The statutory presumption in that case authorized a jury to infer from possession of marijuana that the possessor knew the substance had been illegally imported. The Court said:
"In order thus to determine the constitutionality of the 'knowledge’ inference, one must have direct or circumstantial data regarding the beliefs of marihuana users generally about the source of the drug they consume. Such information plainly is 'not within specialized judicial competence or completely commonplace,’ * * * . Indeed, the presumption apparently was enacted to relieve the Government of the burden of having to adduce such evidence at every trial, and none was introduced by the prosecution at petitioner’s trial. Since the determination of the presumption’s constitutionality is 'highly empirical,’ * * * it follows that we must canvass the available, pertinent data.”
The Court reviewed data on the percentage of domestically consumed marijuana of foreign origin and concluded that since a significant percentage of marijuana was grown in this country it would be no more than speculation to say that a majority of possessors knew the source of their marijuana.
In Turner v United States, 396 US 398 ; 90 S Ct 642 ; 24 L Ed 2d 610 (1970), the Court again employed an empirical approach in deciding whether there is a rational connection between possession of heroin or cocaine and knowledge that the narcotic was illegally imported. 3
The United States Court of Appeals for the Sixth Circuit has relied on data from Congressio *444 nal hearings in upholding a statutory gambling presumption. 4
The United States Court of Appeals for the Second Circuit struck down the rebuttable presumption that a victim is deemed to have been transported in interstate or foreign commerce if not released within 24 hours in kidnapping cases, noting that there was virtually no empirical data supporting the presumption and that it was not enacted to "confirm what folklore teaches” or to codify what is known from "common experience”. 5 That court’s interpretation, in another case, of Leary is illuminating:
"The clear implication was that appellate courts may not simply accept on faith a legislative assertion that proved and presumed facts are related; rather, it must satisfy itself, with facts developed through judicial notice if necessary [citation omitted], of a presumption’s empirical validity.” 6
In the instant case no data was presented in support of the presumption. The inference made under the statute is not rooted in the common law and the rationale for it has not been developed in case law. 7
*445 Ill
The presumption applies without differentiation in regard to the nature of the article, whether fine porcelain, office or sporting equipment, or an automobile. It also applies without regard to whether the article has an identifying number in more than one place and less than all the identifying numbers have been altered or obliterated. Nevertheless, the reasonableness of the presumption may vary depending on the nature of the article and of the "dealer’s business”, and of the alteration, and whether there are identifying numbers remaining unaltered.
The presumption applies only to "dealers” or "collectors”, but the statute does not define those terms. Just as there are collectors of fine and decorative arts and memorabilia, there are, indeed, "collectors” of automobiles. There was no evidence, however, that Gallagher maintained a "collection” of automobiles. Nor was he a "dealer”, a person who buys property and ordinarily sells it without substantial alteration. 8
Moreover, there was no "alteration” or "obliteration” of an identifying number. Rather, whole sections of the automobile, including one section of which a minute part was an identifying number, had been removed. The rear deck lid, doors, front fenders, hood, grille, radiator, and the entire upper dashboard assembly were missing. A police officer testified that "the complete interior” and "the whole front of the car with the exception of the engine was missing”, "the entire upper dash assembly was removed which contained the VIN or identification plate”. There were, on other parts of the automobile, identifying numbers that had not been removed or defaced.
*446 We nevertheless address this case on the assumption that Gallagher was a dealer and that there was an alteration or obliteration because whether the presumption applies at all on the facts of this case is not an issue in this appeal. We have adverted to those aspects of the case because, while Gallagher’s conviction cannot be reversed on the ground that the presumption was improperly invoked, the nature of his business must be considered in deciding the issue that is before us concerning the reasonableness of the presumption and, hence, its constitutionality as applied to Gallagher. 9
IV
The offense is receiving or concealing stolen property. An element of that offense is knowledge that the property was stolen. The inferences made from the possession of property with altered or obliterated identifying numbers are 1) that the dealer or collector knew that the identifying numbers had been altered or obliterated, and 2) that he knew that the property had been stolen.
We take judicial notice of a statute providing that one who buys or sells vehicles must be licensed by the Secretary of State, 10 and is required to keep records which include descriptions of the goods purchased or sold. That recorded description must include
"the engine number, if any, the manufacturer’s number, if any, vehicle number, if any, chassis number, if any, and such other numbers or identification marks as may be thereon, and shall also include a statement that *447 a number has been obliterated, defaced or changed, if such is the fact.” 11
At least as to those in the business of buying or selling vehicles, an inference of knowledge that a number was missing (whether or not "altered or obliterated”) is reasonable. The statute does not, however, appear to apply to a person such as Gallagher engaged in the rebuilding of vehicles, one who buys parts or less than the whole of a vehicle and sells vehicles.
Be that as it may, there is no empirical support for the further inference that a person who buys parts or less than the whole of vehicles knows, because of the absence of one or more identifying numbers from or on parts of the vehicle not in his possession, that the parts in his possession were taken from a stolen vehicle. Carried to its logical conclusion any "dealer” in any portion of a used automobile, however small, even hubcaps, is in possession of property from which an identifying number has been altered or obliterated and is subject to conviction unless he sustains the burden of rebutting the presumption that it was part of a stolen automobile.
There is no empirical evidence regarding a "dealer” such as Gallagher who buys parts or less than the whole of automobiles or wrecked automobiles and rebuilds them, and whether it is reasonable to infer from possession of less than an entire automobile that the parts in his possession are stolen because a part of the automobile having an identifying number is missing although i) the parts in his possession have identifying numbers and ii) no identifying numbers have been removed from any of the parts in his possession. The information *448 needed to make this determination is not within the specialized competence of the judiciary nor is it known from common experience. Until data is produced which supports the challenged presumption, it cannot be sustained.
We would reverse the defendant’s conviction and remand for a new trial.
Kavanagh, C.J., concurred with Levin, J.
MCL 750.535(1); MSA 28.803(1).
MCL 750.535(2); MSA 28.803(2). See Part II for text.
Cf. Yee Hem v United States, 268 US 178 ; 45 S Ct 470 ; 69 L Ed 904 (1925), in which the Court simply asserted that legitimate possession of opium was highly improbable in upholding a statutory presumption of knowledge of illegal importation from possession of opium.
18 USC 1955(c) provides that for the purpose of securing warrants, probable cause that a gambling business receives gross revenue in excess of $2000 in any single day is deemed established if five or more persons conduct the business and it operates for two or more successive days. See United States v Palmer, 465 F2d 697, 699 (CA 6, 1972); United States v Dimario, 473 F2d 1046, 1047 (CA 6, 1973).
United States v Moore, 571 F2d 76 (CA 2, 1978).
Allen v Ulster County Court, 568 F2d 998, 1006 (CA 2, 1977).
A statutory presumption which made possession of a vehicle with removed or mutilated engine numbers prima facie evidence of knowledge that the vehicle was stolen was upheld against a due process challenge in Mantell v Jones, 150 Neb 785; 36 NW2d 115 (1949). The case preceded Leary v United States, 395 US 6 ; 89 S Ct 1532 ; 23 L Ed 2d 57 (1969), however, and the court’s discussion of the issue was conclusory.
See 25A CJS, Dealer, p 535.
See Allen v Ulster County Court, supra, p 1002.
MCL 257.248; MSA 9.1948.
MCL 257.251; MSA 9.1951.