Opposition — Driver v. United States

Supreme Court, U,

FILE D-

wer

JAN 9 1980

No. 79-601

ICHAEL RODAK, JR., CLERK

Iu the Supreme Cone of the United States

OCTOBER TERM, 1979

THOMAS BENNETT DRIVER, ET AL., PETITIONERS

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

WADE H. MCCREE, JR.

Solicitor General

PHILIP B. HEYMANN

Assistant Attorney General

CHRISTOPHER M. MCMURRAY

Attorney

Department of Justice

Washington, D.C. 20530

Page

EE SOR aE 1

Questions presented iacasespehiascdiceseaelisbididaceeliesticoenshlabiniinias 2

Cee ctenneien 2

ESSE IN SS oe eee 4

AE SS 11

CITATIONS

Cases:

Carroll v. United States, 267 U.S. 182... 7

Chambers v. Maroney, 399 U.S. 42 ........ 7

Coblidge v. New Hampshire, 403 U.S.

ene 7

Schneckloth v. Bustamonte, 412 U.S. 218.. 6:

United States v. Bishop, 487 F.2d 977........ 10

United States v. Chadwick, 433 U.S. 1.... 7-8

United States v. Davis, 568 F.2d 514...... 9

United States v. Kim, 595 F.2d 755........ 9

United States v. ©.vanks, 521 F.2d 83...... 8

Wong Sun v. United States, 371 USS.

oc ccoenienenens 10

Statutes and rule:

ec 2

Sk eee 2

lh 2, 8,10

Iu the Supreme Court of the United States

OCTOBER TERM, 1979

No. 79-601

THOMAS BENNETT DRIVER, ET AL., PETITIONERS

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

The opinion of the court of appeals (Pet. App. A-1

to A-2) is not reported. The opinions and orders of

the district court (Pet. App. A-3 to A-49) are not

reported.

JURISDICTION

The judgment of the court of appeals was entered

on May 8, 1979. A petition for rehearing was denied

on September 13, 1979. The petition for a writ of

certiorari was filed on October 11, 1979. The juris-

(1)

2

diction of this Court is invoked under 28 U.S.C.

1254(1).

QUESTIONS PRESENTED

1. Whether the trial court correctly found that

petitioner Driver’s consent to the search of his busi-

ness premises was voluntary.

2. Whether the warrantless search of petitioner

Reece’s automobile was proper.

3. Whether the evidence was sufficient to convict

petitioners Reece and Driver of receipt and conceal-

ment of a stolen automobile.

4. Whether evidence showing that certain stolen

automobiles were located on petitioner Brown’s prop-

erty was admissible as independent of other evidence

that had been illegally seized from Brown.

STATEMENT

Following a jury trial in the United States Dis-

trict Court for the Eastern District of Tennessee,

petitioners were convicted on one count of conspiracy

and several substantive counts of receiving and con-

cealing stolen motor vehicles, in violation of 18 U.S.C.

2313, 371 and 2. Petitioner Driver was convicted on

the conspiracy count and four substantive counts and

was sentenced to concurrent terms of three years’

imprisonment on each count (C.A. App. 8A). Pe-

titioner Brown was convicted of the conspiracy count

and six substantive counts; she received a prison

term of two years, to be fo »%wed by three years’

probation, and was fined $2,000 (C.A. App. 6A).

3

Petitioner Reece was convicted of the conspiracy

count and one substantive count and was sentenced

to a year and a day in prison, to be followed by five

years’ probation (C.A. App. 9A).' The court of

appeals affirmed (Pet. App. A-1 to A-2).

The evidence adduced at trial established that pe-

titioners were part of a large scale auto theft scheme

in which stolen automobiles were disassembled and

either sold in parts or reassembled so as to alter the

appearance of the vehicles. As part of the scheme,

petitioner Driver, a junkyard owner, legitimately ob-

tained junked automobiles in order to assemble stolen

parts on their frames. Through his salvage operation,

Driver was also able to acquire new vehicle iden-

tification numbers (VINs) to place on reassembled

or stolen automobiles. The stolen frames were gen-

erally cut into sections and sold for scrap (Pet. App.

A-1 to A-2).

On July 2, 1976, FBI agents seized certain evidence

from petitioner Driver’s junkyard after he signed a

form consenting to a search (Pet. App. A-24 to A-

25). The district court denied a motion to suppress

this evidence (Pet. App. A-24 to A-27).

On the same date, FBI agents seized certain prop-

erty, including vehicles, from the premises of peti-

tioner Brown, an employee of Driver’s, and other

evidence from a locked outbuilding on those premises

(Pet. App. A-18). The evidence at trial showed that

the vehicles were stolen. The search of the premises

1 Another co-defendant, William P. Tolbert, was convicted

of conspiracy but is not a petitioner in this case.

4

took place after petitioner Brown’s attorney informed

the agents that they could go ahead (Pet. App. A-

19). The search of the outbuilding occurred after

Brown gave the key to her attorney to admit the

agents (Pet. App. A-23). The district court granted

Brown’s motion to suppress the evidence seized from

the premises on the ground that she did not consent

to that search, but it denied the motion to suppress

the evidence seized from the outbuilding (Pet. App.

A-18 to A-28). Prior to the search, agents had taken

photographs of the vehicles on petitioner Brown’s

premises from an airplane and from across the road

(Tr. 249, 260, 272, 287).

On the same date, petitioner Reece drove up to

petitioner Driver’s junkyard in a red Volkswagen.

Evidence at trial showed that this car had been stolen

(see pages 8-10, infra). A police officer observed

the VIN plate that was visible through the windshield

and determined that it was not the one that originally

came with the car. He then entered the car, lifted the

rear seat and observed the VIN on the pan of the car

to be different. The car was then seized by the police

(Pet. App. A-28 to A-29). Petitioner Reece’s motion

to suppress the automobile was denied by the district

court (Pet. App. A-28 to A-30).

ARGUMENT

1. Petitioner Driver first contends (Pet. 11) that

the court erred in denying his motion to suppress

certain stolen automobile and truck parts seized dur-

5

ing the consent search of the junkyard he operated.

This claim is without merit.

A pretrial evidentiary hearing was held on peti-

tioner Driver’s motion to suppress. The evidence

showed that Driver signed a consent form permitting

a search of his premises and the seizure of any items

the agents desired to take from the premises.” While

Driver did not read the form before signing it, being

almost illiterate, an FBI agent read its contents to

him and told him orally that he need not consent to

the search (S.H. Tr. 68-74).° Thereafter, Driver

permitted the agents to search his business premises.

Petitioner Driver suggests (Pet. 6, 11) that the

consent was not voluntary under the standards of

2 The consent form read as follows:

I, Thomas Bennett Driver, having been informed of my

constitutional rights not to have a search made of the

premises hereinafter mentioned without a search warrant,

and of my right to refuse to consent to such a search,

hereby authorize Sheriff Bobby McCullogh and John D.

Jones, Special Agents of the Federal Bureau of Investi-

gation, United States Department of Justice, to conduct

a complete search of my premises located at Driver’s

Garage and Junkyard, Route 4, Woodbury Highway,

Manchester, Tenn. These agents are authorized by me to

take from my premises any letters, papers, materials, or

other property which they may desire.

This permission is given by me to the above named

Special! Agents voluntarily and without threats or prom-

ises of any kind.

/s/ Thomas Driver

(Pet. App. A-25).

3 Transcripts of the suppression hearing are designated

“S.H. Tr.”. The trial transcripts are designated “Tr.”’.

6

Schneckloth v. Bustamonte, 412 U.S. 218 (1973), on

the grounds that the agents asked whether they could

“inventory” the premises rather than “search” it and

that the presence of law enforcement officials was

otherwise coercive. The trial court specifically found

that the consent was “unequivocal, specific, voluntary,

and given without actual or implied duress or coer-

cion” (Pet. App. A-26). This finding has ample sup-

port in the record. The form that was read to peti-

‘tioner Driver referred to permission “to conduct a

complete search of my premises” and to seize items

therefrom. While petitioner Driver may have been

illiterate, he was intelligent enough to have operated

his junkyard business for many years (S.H. Tr. 7).

Furthermore, there is no evidence in the record that

the FBI agent or the local sheriff attempted in any

way to coerce petitioner Driver into signing the form.

In fact, after signing the form, Driver asked that the

search be delayed until he could consult with his at-

torney. The search did not commence until after the

attorney had arrived on the scene, consulted with

Driver, and then stated to the agent that he could go

ahead with the search (S.H. Tr. 75-77).

2. Petitioner Reece argues (Pet. 7-8, 11) that the

trial court erred in failing to suppress evidence found

pursuant to the warrantless search of his car, which

was parked outside Driver’s junkyard at the time the

junkyard was being searched. This contention is with-

out merit.

7

It is well established that officers may search an

automobile without a warrant if they have probable

cause to believe that the automobile contains contra-

band or evidence of criminal activity. Chambers v.

Maroney, 399 U.S. 42 (1969); Carroll v. United

States, 267 U.S. 182 (1925). Here, FBI Agent

Joseph M. High and Inspector Donaldson, a local

expert on VIN plates (Tr. 106-108), noticed Reece’s

Volkswagen parked in the driveway of Driver’s junk-

yard and proceeded to look through the windshield at

the VIN plate on the dashboard. Inspector Donaldson

recognized immediately that the plate was not factory

installed. He then entered the Volkswagen, lifted the

rear seat and obtained the true VIN from the pan,

a part of the automobile directly beneath the rear

seat (S.H. Tr. 174, 175, 178; Pet. App. A-29). A

computer check of this number revealed that a car

bearing the VIN found on the pan had been stolen

from a woman in Georgia (S.H. Tr. 175).

As the trial court found (Pet. App. A-29), when

Inspector Donaldson noticed that a VIN plate was

not the original plate, he had probable cause to be-

lieve that the vehicle was stolen.* The inherent mo-

bility of the automobile created an exigency that

excused the usual warrant requirement. Chambers

v. Maroney, supra; Carroll v. United States, supra.

Petitioner’s reliance on United States v. Chadwick,

4Inspector Donaldson’s observation of the VIN plate did

not constitute a search because it was in plain view as he

stood outside the car. See Coolidge v. New Hampshire, 403

U.S. 448 (1971).

8

433 U.S. 1 (1977), is misplaced. That case creates

no exception to the principle that warrantless prob-

able cause searches of automobiles are lawful.

3. Petitioners Reece and Driver also assert (Pet.

11, 13) that the evidence presented was insufficient

to convict them of receipt and concealment of a

stolen vehicle (the Volkswagen that was searched).

Petitioners attempted to prove at trial that petitioner

Reece installed a new pan in his car after an accident

(Tr. 431-432) and argue here that mere possession

of the stolen pan, only one part out of many in a

car, cannot constitute concealment of a “motor ve-

hicle” in violation of 18 U.S.C. 2318. While it is

true that the Seventh Circuit has held that one may

not be convicted of receiving and concealing a stolen

automobile where it is only proven that the defend-

ant possessed a single part of the stolen automobile,

United States v. Shanks, 521 F.2d 83 (1975), the

evidence here did demonstrate that the vehicle itself

was stolen.

The government presented evidence indicating that

a red 1972 Volkswagen, VIN 1122261566, was stolen

in December 1975 from a woman in Clarkston,

Georgia (Tr. 174). Petitioner Reece’s red 1972 Volks-

wagen that the officers inspected on the day of the

search bore a VIN plate on the dashboard with a

different number, which Inspector Donaldson deter-

mined was not the original plate (Tr. 208). The

officers then determined that the number on the pan

under the rear seat was VIN 1122261566, the num-

ber of the stolen vehicle (Tr. 209). The Volkswagen

9

engine bore the number AE666025 (Tr. 235). This

engine had been placed in a Volkswagen bearing VIN

1122261566 at the time the car was manufactured

(Tr. 710).° Yet petitioner Reece testified that the

engine in his Volkswagen was the original engine

(Tr. 442-443). The dashboard VIN plate on Reece’s

Volkswagen corresponded to the number of another

salvaged Volkswagen that petitioner Driver had

bought legitimately. Accordingly, the evidence com-

pellingly established that the red Volkswagen ex-

amined on the day of the search had been stolen, with

5 Petitioners Reece and Driver urge (Pet. 12) that the court

improperly admitted the evidence that engine AE666025 was

part of a Volkswagen with VIN 1122261566, presumably

because it was hearsay. However, it is clear that a record

kept in the normal course of business may be introduced into

evidence if the party seeking its admission lays a proper

foundation indicating its trustworthiness. United States v.

Davis, 568 F.2d 514, 516 (6th Cir. 1978) ; Rule 803(6), Fed.

R. Evid. Here, the information came from an employee of

the National Automobile Theft Bureau, who testified that

the Bureau kept records of engine numbers in the normal

course of business (Tr. 710).

In Davis, upon which petitioners mistakenly rely, a police-

man’s testimony that the VINs he received pursuant to a

check with the National Crime Information Center (NCIC)

corresponded to the VINs of two stolen vehicles was inadmis-

sible hearsay where the owner’s testimony did not describe

the vehicles or identify their VINs. That case did not con-

cern the direct introduction into evidence of the report from

the NCIC, which the Davis court specifically stated would

have been admissible. 568 F.2d at 516.

United States v. Kim, 595 F.2d 755 (D.C. Cir. 1979), which

petitioners also cite, is wholly inapposite to the instant case.

It concerns a telex message from a Korean bank that was

not kept in the normal course of business and was generally

untrustworthy evidence. Jd. at 760-763.

10

the dashboard VIN plate taken from another car as

a means of concealing the theft, a clear violation of

18 U.S.C. 2313. See United States v. Bishop, 437

F.2d 97 (6th Cir. 1971) (possession of major parts

of a stolen vehicle may be basis for conviction under

18 U.S.C. 2313 where other evidence shows that the

whole vehicle was stolen and received before being

dismantled).

4. Finally, petitioner Brown contends (Pet. 7-11)

that the court erred in permitting the prosecutor to

prove that stolen vehicles were located on her prop-

erty after the district court had suppressed the stolen

vehicles themselves as illegally seized. This conten-

tion is erroneous.

When evidence is suppressed as the fruit of an

illegal search, the facts sought to be proved by that

evidence may still be proved by evidence independent

of the tainted search. See Wong Sun v. United

States, 371 U.S. 471 (1963). In the present case,

the court suppressed five stolen vehicles seized from

petitioner Brown’s lot. The court also ruled, how-—

ever, that the search of an outbuilding on her prop-

erty was lawful (Pet. App. A-23).° That search

revealed the license plates that came from the five

stolen vehicles. At trial, the court properly ruled,

over defense objections (Tr. 237-239), that the

prosecutor could introduce the unsuppressed license

plates, as well as photographs of the automgbiles on

Brown’s property taken from the air and across the

¢ Petitioner Brown does not here contest the court’s find-

ing that she consented to the search of the outbuilding.

11

road prior to the search (Tr. 249, 260, 272, 287).

The prosecutor then called to the stand the owners of

the vehicles, who identified the respective license

plates displayed to them as being those that were on

their vehicles at the time they were stolen (Tr. 241,

255, 265-266, 298). Four of them also identified

the photographs as resembling their respective auto-

mobiles (Tr. 242, 257, 265, 285). This evidence was

not a fruit of the illegal search, but was derived

independently. Accordingly, it was properly admitted

by the court.’

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

WADE H. MCCREE, JR.

Solicitor General

PHILIP B. HEYMANN

Assistant Attorney General

CHRISTOPHER M. MCMURRAY

JANUARY 1980 Attorney

7 Petitioners also argue (Pet. 12) that petitioner Brown’s

possession of license plates from stolen vehicles was insuffi-

cient to constitute an overt act in furtherance of their con-

spiracy to conceal stolen autos. This argument is without

foundation. The removal and concealment of legitimate license

plates makes the accurate determination of an automobile’s

true owner more difficult and thus does further the charged

conspiracy.

W UV. S. GOVERNMENT PRINTING OFFICE; 1980 308085 180