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SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1974

No. 74-737

REN PEPE? oboe ce sudexsdvedstceseniin PETITIONER

VS:

COMMONWEALTH OF KENTUCKY....RESPONDEN1

ON PETITION FOR WRIT OF CERTIORARI TO THE

COURT OF APPEALS OF KENTUCKY

BRIEF FOR RESPONDENT IN

OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI

ED W. HANCOCK

Attorney General

MILES H. FRANKLIN

Assistant Attorney General

Capito] Building

Frankfort, Kentucky 40601

COUNSEL FOR RESPONDENT

wo SS

INDEX

Page

TABLE OF AUTHORITIES ................ li-iv

scat aca os a OO l

shoes tsa ted op RO ORE ET eT 1-8

QUESTIONS PRESENTED .................... 8

CONSTITUTIONAL STATUTORY

PROVISIONS INVOLVED ................... 8

COUNTERSTATMENT OF THE CASE ....._.. 8-9

csv Sacer 10-14

I. A LAW ENFORCEMENT OFFICER, HAVING

LEGITIMATE GROUNDS FOR DOING SO AL-

THOUGH AMOUNTING TO PROBABLE

CAUSE, MAY EXAMINE A MOTOR VE-

HICLE’S IDENTIFICATION NUMBER,

WHETHER PLAINLY VISIBLE (PVIN) OR

SECRETED UNDER THE CHASSIS (CVIN),

FOR PURPOSES OF IDENTIFYING IT AND

NOT THEREBY VIOLATE SEARCH AND SEIZ-

URE RIGHTS SECURED BY THE FOURTH

ES sae ibuu ese contac cyoq tates cs 5 10-13

II. ONE CHARGED WITH THE THIEVERY OF A

STOLEN MOTOR VEHICLE IN VIOLATION

OF STATE STATUTORY LAW HAS NO

STANDING TO OBJECT TO THE “SEARCH”

OF THAT VEHICLE FOR ITS IDENTIFICA-

TION NUMBER ON THE BASIS OF THE

FOURTH AMENDMENT ......................... 14

ysis cgulee gu cate gE IE EET ETP aa it 15

ii

TABLE OF AUTHORITIES

Page

dlir Pollution Variance Board vy. Western

-lljalja Corp.,

—U.S.— 40 L.}£d.2d 607, 611,904 S.Ct.

CECE Urahara ses Tee oe ere. 4

Cady v. Vombroski,

413 U.S. 433, 37 L.Ed.2d 706, 93 S.Ct.

FS BG Cf 2 LR i ty ae Ae a MOM 8 ae 12

Cardwell V. Lewis,

—U.S.— 4 L.Ed.2d 325, 4 S.Ct._(1974).. 5, 12

Carroll ve U. S.,

267 U.S. 132, 69 1..Ed. 343,53 S.Ct 2x0

(1925)

Chambers v. Maroney,

399 US. 42, 26 L..F.d.2d 419, 90 S.Ct.

CRE tee rat eons yoo eee 11

Combs y. Commonwealth,

Ky., 341 S.W.2d 774 (1961) .............. 7

Commonwealth v. Johnson,

ny. 420 SW 2d 108 (1967). .............. 6

Coolidge ve New Hampshire,

403 U.S. 443, 29 L.Fd.2d 564,91 S.Ct.

re Yar, unk s tpn Caen nant tee Mek aa 3

Coofer v. California.

386 U.S. 58, 17 L.F-d.2d 730, 87 S.Ct. 788

( 1967 ) Pe ey Me UO SOE ee ee ay” 12

Cotton vy. U. S..,

371 F.2d 385 (9th Cir. 1967) .......... 5, 11

Harper Vv. State.

&4+ Nev. 233, 440 P.2d 893 (1968) ........ 7

iii

TABLE OF AUTHORITIES (Continued)

Page

Harris v. U. S.,

390 U.S. 234, 19 L.Ed.2d 1067, 88 S.Ct.

ah nk Raa a eee gem EC MRE AE Re 12

Iles ¥. Commonwealti,

ig Ae ee ee Ae CPE sce ceenctes 6

Jones v. U.S.,

362 U.S. 257, 4 L.E.2d 697, 80 S.Ct. 725

Ee | Rae AD RS DEY A at Shr vera ie 6

Kats v. t'. S.,

389 ULS, 347 19 L.Ed.2d 576, 88 S.Ct. 507

ENA cA GRS One ae ie keene ea eae ees 11

Kaufman vy. U.S.

323 F.Supp. 623 (E.D. Mo. 1971) .......2.- 7

Meade v. Cox,

310 F.Supp. 233 (W.D.Va. 1970) ......... 7

Palmer v. State,

ee., GO Pa OE CRUE) ob vavcvadecdcsnse 7

Preston v. U.S,

3/6 U.S. 364. 11 L.Ed.2d 777, 84 S.Ct. 881

[PER Mas eurerdcdakeesbeceeienccenenicns 11

Prewtt v. Commonwealth,

iF, Bem We a Ok CRPOO nn ais soc ceo eee 6

Simpson v. U. S.,

346 F.2d 291 (10th Cir. 1965) ............. 11

Siyter v. State,

246 Miss. 402. 149 So.2d 489 (1963) ....... 7

Smith v. Commonwealth,

i; ae? A Oe MEOOO) cc cbscccccede 7

State v. Cohn,

Fla., App.. 284 So.2d 426 (1973) .......... 7

iv

TABLE OF AUTHORITIES (Continued)

Page

State v. Edwards, .

Mo., 462 S.W.2d 782 (1971) ............. 7

State v. Pokini,

45 Haw. 295, 367 P.2d 499 (1961) ........ 7

U.S. v. Graham,

391 F.2d 439 (6th Cir. 1968) ............. 10

U’. S. v. Johnson,

413 F.2d 1396 (5th Cir. 1969) ............ 10

U.S. v. Polk,

433 F.2d 644 (3th Cir. 1970) ............. 10

U.S. v. Powers,

439 F.2d 373 (4th Cir. 1971) .......... 5, 10

U.S. v. Self,

410 F.2d 984 (10th Cir. sat ALLA, AA 2 10

U.S. v. Squires,

456 F.2d 967 (2nd Cir. 1972) ............ 10

U.S. v. Ware,

457 F.2d 828 (7th Cir. 1972) ............ 10

(”. S. v. Williams,

434 F.2d 681 (5th Cir. 1970) .......... 4, 10

Williams v. U. S.

523 F.2d 90, (10th Cir. 1963) ............. 7

Kentucky Statutes:

eer ps cath PE EN a 9, 10

Feperat Constitution:

4th and 14th Amendments to the

United States Constitution ............ 2, 8,9

Otruer CITATIONS:

Title 28 U.S.C. gt) 1,8

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1974

No. 74-737

BoM BUG... oo. cccccccincccccccnvcces PETITIONER

VS:

COMMONWEALTH OF KENTUCKY....RESPONDENT

BRIEF FOR RESPONDENT IN

OPPOSITION TC PETITION FOR

WRIT OF CERTIORARI

OPINION BELOW

The opinion below from the Kentucky Court of Ap-

peals is a Meniorandum Opinion, not to be cited as au-

thority, and is reported at 512 S.W.2d 528 (1974) and

is correctly set forth in the petitioner’s Appendix A, pages

15-16, of his Petition for Writ of Certiorari.

JURISDICTION

Petitioner’s application to invoke the jurisdiction of

this Court should be denied because it fails to meet the

jurisdictional requirements of 2&8 U.S.C. §1257(3), the

proper provision for review of a state court judgment in a

criminal case on certiorari.

Lae

2

The petitioner premises his petition for a writ of

certiorari upon four contentions which he argues reflect

a violation of his constitutional rights under the Fourth

and Fourteenth Amendments.

Respondent submits that for purposes of jurisdiction-

al clarity, the questions found under the heading of

“Questions Presented” in petitioner's petition, can be log-

ically simplified and restated into two contentions. Ques-

tions I, II, and IIT can he combined into the contention

(1): Whether a police officer can examine an autome-

bile for a vehicle identification number, whether hidden

(Confidential Vehicle Identification Nun:her [CVIN]

or plainly visible (Public Vehicle Identification Number

IPVIN]), without viviating the search and seizure rights

of the Fourth Amendment where he has legitimate

grounds for doing so, not amounting to probable cause?

Question IV can be rephrased into the contention (2):

Whether a person charged with the thievery of a stolen

moivr vehicle has standing to object to the warrantless

“search” of the vehicle identification number (VIN) of

that stolen vehicle?

The respondent respectfully disagrees with petition-

er’s contentions and submits that petitioner's petition for

writ of Certiorari be denied.

(1) To contend that examining and copying of a

vehicle identification serial number by a police officer of

a properly impounded motor vehicle is a search thereof

in violation of the Fourth Amendment js without sub-

stance. See United States v. Graham, 391 F.2d 439 (6th

Cir. 1968). At the time of the arrest of the petitioner for

3

disorderly conduct and resisting arrest, the arre. ting of-

ficer learned from a companion police officer -hat the

truck had been stolen. After the truck bid been im-

pounded at the tow-in lot, he routinely entered the door

post serial number (PVIN) and license plate number

into the National Crime Information Center (N.C.LC.).

the response to which negated theft. The arresting of-

frcer subsequently copied the secret serial number

(CVIN) from underneath the chassis’ frame and a com-

puter check confirmed the officer’s anticipation of a stol-

en vehicle.

In the case at bar, nothing from the interior of the

vehicle and no personal effects, which the Fourth Amend-

ment traditionally has been deemed to protect. were

searched or seized and introduced into evidence.

Petitioner contends that the decision below collides

and conflicts with the rulings of Carroll v. U'S., 267 U.S.

132, 69 L.Ed. 543, 53 S.Ct. 280 (1925): Chambers v.

Maroney, 399 U.S. 42, 26 L.FEd.2d 419, 90 S.Ct. 1975

(1970); Coolidge v. New Hampshire, 403 U.S. 443. 29

1..E-d. 2d 564, 91 S.Ct 2022 (1971). Such is not the cave.

Coolidge, supra, involved an extensive search of the

entire vehicle including tie interior from which, by vacu-

um sweepings, incriminating evidence was obtained. Coo!-

idge is inapposite because it involved the warrantless

search of an automobile carried out pursuant to a criminal

investigation where the only conceivable purpose of such

an investigation was the discovery of instrumentalities of

the crime. A search of that kind raises different and ad-

ditional considerations not present in the copying of a ve-

te

4

hicle identification number for which there was no reason-

able expectation of privacy. The vehicle identification

number in itself is not evidence of a crime, but it may

lead to the identity of the true owner.

Petitioner’s reliance on the underlying rationale of

the Carroll-Chambers line of decisions, is without merit

because clearly the vehicle being operated by petitioner

was lawfully impounded and in proper police custody.

There were no exigent circumstances so as to bring into

consideration the decisions of Carroll or Chambers, supra.

The prior impoundment of the vehicle was not a constitu-

tional barrier to the copying of its CVIN and its use to de-

termine thievery. Again, we are not confronted with any

issue as to the propriety of a search of a car's interior.

Stated simply, this is not a significant case of a citi-

zen’s invasion of privacy or unwarranted intrusion into

that constitutionally protected area. Here, the invasion,

“... if it can be said to exist, is abstract and theoretical.”

Air Pollution Variance Board v. Western Alfalfa C orp.,

ae 4 8 , 40 L.E-d.2d 607, 611, 94 S.Ct.

(1974).

Numerous federal cases have held that the examina-

tion of an automobile for purposes of identifying it may

be conducted within certain limits by a police officer hav-

ing a iegitimate ground for doing so, not amounting to

probable cause, without violating Fourth Amendment’s

rights, U.S. v. Williams, 434 F.2d 681 (5th Cir. 1970).

Some of these cases have been decided on the theory that

an examination of a vehicle identification number, al-

though necessitating an opening of the door, is not a

5

search at all. See Cotton v. U.S., 371 F.2d 385 (9th Cir.

1967). Others hold that such an entry is a search but one

justified because of the limited intrusion and the quasi-

public nature of the identification number, U.S. v. Powers,

439 F.2d 373 (4th Cir. 1971).

This Court concluded in Cardwell 7. | Se

U.S. ____., 41 L.Ed. 2d 325, 94 S.Ct. __.__. 1974, that

the probable cause examination of the exterior of the ve-

hicle and taking of paint scraping therefrom were reason-

able and that this action did not invoke the right to privacy

which the interposition of a warrant requirement is meant

to protect.

The ruling of the Kentucky Court of Appeals that

there was no search where the only intrusion was to read

the hidden identification serial number in order to deter-

mine ownership is in solid accord with the vast weight of

Federal authority. This ruling does not necessitate the

discretionary exercise of this Court’s review by certiorari.

(2) Petitioner contends that he has “standing” to

invoke his Fourth Amendment rights so as to suppress

the hidden vehicle identification number that was copied

and used to determine that he was operating a stolen ve-

hicle in violation of state law. With regard to the issue

of “standing” of a thief to raise constitutional issues of

search and seizure, petitioner argues that this issue has

not heretofore been decided by this Court. This conten-

tion is without foundation.

The mere presence of a search and seizure question

without more, is insufficient to warrant review by cer-

tiorari. In order for such an issue to fali within the scope

6

of review proffered by a writ, the question must he novel,

unsettled, or a conflict of decisions must exist. None of

the above grounds are applicable. The decision of the

Kentucky Court of Appeals was adequately supported by

the Kentucky cases of Iles 7. C ommonzwealth, WKy., 476

S.W. 2d 170 (1972): Pruit: @. Commonweaith, Ky.. 286

S.W. 2d 551 (1956); Commonwealth 7. Johnson, Wy.,

420 S.\W.2d 103 (1967): the latter case citing Jones y.

United States 362 U.S. 257, 4 L.Ed.2d 697, 80 S.Ct. 725

(1960). These Kentucky decisions are not in conflict

with Jones, supra. Jones liberalized the “standing” re-

quirement significantly, mitigating its earlier harshness.

It conferred “automatic” standing on one charged with

illegal possession, thereby permitting him to challenge

the seizure of those goods, the possession of which was

the gravamen of the offense. Jones explicibly broadened

the class of persons protected by taking the “standing”

which was already available to persons who had a pro-

prietary or possessory interest in the premises and ex-

tending it to all who are legitimately upon the prem-

ises. Jones, 362 U.S. at 267. 4 L.Ed.2d at 406, 80 S.Ct.

at 734, stated:

... No just interest of the government in the effec-

tive and rigorous enforcement of the criminal law

will be hampered by recognizing that anyone legiti-

mately on premises where a search occurs may chal-

lenge its legality by way of a motion to suppress,

when its fruits are proposed to be used against him...

Significantly for present purposes, the language of Jones

then immediately underscored its measured use of the ad-

verb “legitimately” by standing the converse:

7

.. This would of course not avail those who, by vir-

tue of their wrongful presence, cannot invoke the

privacy of the premises scorched ... (Aamphasis St;)-

plied )

It is the “legitimately on the premises” aspect of the

petitioner's relationship to the automobile “search” that

concerns us in the case at bar. In interpreting the “le-

gitimately on the premises” aspect of Jones, the Kentucky

Court of Appeals has denicd “standing” to trespassers in

or upon real property. Smith 7. Comunonzealth, Ky. 375

S.W.2d 242 (1964): Combs 7. Commonwealth, Ky.. 341

S.W.2d 774 (1961). This rationale applies with equal |

vigor to the thief of the stolen automobile. The over-

whelming weight of federal authority and reasoning of

sister states squarely hold that the thief has no “stand.

ing” in the stolen automobile. See State v. Cohn, Fla.

App., 284 So.2d 426 (1973): Palmer v. State, Md.. 286

A.2d 572 (1972): State v. Pokini, 45 Haw. 295, 367 P.24

499 (1961); Slyter v. State, 246 Miss. 402. 149 So. 2d

489 (1963): /arper v. State, 84 Nev. 233, 440 P.2d 293

(1968); State v. Edmonds, Mo., 462 S.W. 2d 782

(1971); Kaufman vy. U.S. 323 F. Supp. 623 (E.D. Mo.

1971) ; Meade v. Cox, 310 F.Supp. 233 (W.D. Va. 1970):

and Williams v. U.S. 323 F.2d 90 (10th Cir. 1963).

The petitioner has failed to establish in what manner

the decision of the Kentucky Court of Appeals is at var-

jance with any prior decision of this Court and other fed-

eral or sister state jurisdictions. To the contrary, the

respondent submits that this contention presents no un-

settled federal question and is in fact foreclosed to the

petitioner because it properly falls within the prior con-

trolling decision of Jones, supra. This being so, the re-

spondent submits that the petitioner has failed to estab-

lish a jurisdictional basis.

In summary, the respondent submits that the peti-

tioner’s application for Petition For Writ should be de-

nied because it fails to meet the jurisdictional require-

ments of 28 U.S.C. 1257(3).

The respondent will not endeavor to respond to both

of the above contentions as though these contentions are

properly hefore the Court. even though respondent main-

tains that thev are not.

QUESTIONS PRESENTED

I

Whether a police officer can examine a motor

vehicle’s identification number for purposes of

identifying it without violating Fourth Amend-

ment Rights Against An Unreasonable Search

and Seizure, where he has legitimate grounds for

doing so, not amounting to probable cause?

II

Whether one charged with the thievery of a stolen

motor vehicle in violation of state statutory law

has standing to object to the warrantless “search”

of that vehicle for its vehicle identification num-

ber in violation of the Fourth Amendment pro-

visions of illegal search and seizure?

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Constitutional Provisions of the Fourth and

9

Fourteenth Amendments and Kentucky Revised Statute

433.220 have been properly set forth in petitioner's Peti-

tion For Writ at pages 4-5.

COUNTERSTATEMENT OF THE CASE

Petitioner complains that there was an illegal search

of an impounded motor vehicle which he had been operat-

ing when the arresting officer, at a latter date, copied

the secret vehicle identification number (CVIN) from

underneath the chassis of the vehicle at the tow-in lot.

The unique circumstances of this alleged “search” set

this case apart from the usual search and seizure situation.

The petitioner was arrested for disorderly conduct

and resisting arrest after having an altercation with a po-

lice officer on a deserted roadway. It was at this point

that the arresting officer was advised by a companion po-

lice officer that the latter had information that the vehicle

had heen stolen as per his own independent investigation.

Because both occupants of the vehicle were arrested and

taken to jail, the officers had the right and the duty to

have the vehicle impounded for safekeeping.

Once the vehicle was impounded, it was routine pro-

cedure for the law enforcement officials to check the

serial number on the door post (PVIN) and the license

plate number, which reflected that the vehicle was regis-

tered to the brother of the petitioner. The following day,

the arresting officer learned where to locate the secret

serial number (CVIN) on the underneath frame of the

pickup truck. The number was copied and a trace in the

National Crime Information Center (N.C.I.C.) lead to

the discovery of the stolen nature of the vehicle. The

10

petitioner was tried and convicted in a Kentucky state

court (the Nelson Circuit Court) of the offense of tak-

ing and operating a motor vehicle without the owner's

consent, a felony (Kentucky Revised Statute 433.220).

On appeal. the Kentucky Court of Appeals affirmed the

judgment of convicted.

ARGUMENT

I

A LAW ENFORCEMENT OFFICER, HAVING

LEGITIMATE GROUNDS FOR DOING SO AL-

THOUGH NOT AMOUNTING TO PROBABLE

CAUSE, MAY EXAMINE A MOTOR VEHICLE’S

IDENTIFICATION NUMBER, WHETHER PLAIN-

LY VISIBLE (PVIN) OR SECRETED UNDER THE

CHASSIS (CVIN), FOR PURPOSES OF IDENTIFY-

ING IT AND NOT THEREBY VIOLATE SEARCH

AND SEIZURE RIGHTS SECURED BY THE

FOURTH AMENDMENT.

Many federal circuits have consistently admitted evidence

of « motor vehicle’s identification number without a

search warrant on the theory that the inspection which

disclosed it was not a search within the meaning of the

Fourth Amendment. or alternatively. that the search was

reasonable. or that the accused lacked standing to con-

test it. (°. S. v. Ware, 457 F.2d 828 (7th Cir. 1972);

I’. S.v. Squires, 456 F.2d 967 (2nd Cir. 1972): U7. S. v.

Powers, 439 F.2d 373 (4th Cir. 1971): 17. S. v. Williams,

434 F.2d 681 (5th Cir. 1970): U. S. v. Polk, 433 F.2d

644 (Sth Cir. 1970): U.S. v. Johnson, 413 F.2d 1396

(Sth Cir. 1969): 17. S. v. Self, 410 F.2d 984 (10th Cir.

1969): 7°.°S. v. Graham, 391 F.2d 439 (6th Cir. 1968):

11

Cotton v. U. S., 371 F.2d 385 (9th Cir. 1967). Con-

trastingly, only one federal circuit court of appeals. in a

4-2 decision, has held a warrantless search to be illegal--

and the number of inadmissible in evidence—when the

vehicle’s inspection was not incident to a lewful arrest.

Simpson v. U. S., 346 F.2d 291 (10th Cir. 1963). Re-

spondent would point to the dissenting opinion of Judges

Pickett and Murrah in Simpson, id. at page 296 as the

correct interpretation of the law regarding this issue,

which is in accord with the decisions of the other circuits.

Two significant factors affecting the legality of +

search for identification numbers are first. the mobility

of a motor vehicle, see Carroll v. U". S., 267 U.S. 132,

69 L.Fd.543, 45 S.Ct. 280 (1925): and second, the

“expectation of privacy” that a person may rensonably

claim for those parts of his vehicle where identificatien

numbers are posted. Cf. Kats v. U7. S., 389 U.S. 347,

19 L..F-d.2d 576, 88 S.Ct. 507 (1967) (Mr. Justice Harlan

concurring ).

This Court has long distinguished the search of auto-

mobiles from the search of buildings. But mobility alone

does not justify unbridled search of those parts of a ve-

hicle where one has a reasonable expectation of privacy.

Thus. warrantless searches of the trunk, the glove com-

partment, the console or similar areas have been ap-

proved only within strict limitations. such as the re-

quirement of probable cause to search the car, Chambers

v. Maroney, 399 U.S. 42, 26 L.Ed. 2d 419, 90 S.Ct. 1975

(1970), or a search incident to a lawful arrest. Preston

v. U.S. 376 U.S. 364, 11 L.Fd. 2d 777, 84 S.Ct. 881

(1964); or a showing the car itself was contraband,

aA

12

Cooper v. California, 386 U.S. 58, 17 L.Ed 2d 730, 87

S.Ct. 788 (1967).

In Harris v. U. S., 390 U.S. 234, 19 L.Ed.2d 1067,

8&8 S.Ct. 692 (1968), a search of a vehicle was upheld

where the officer went to the lot where the vehicle was im-

pounded to secure its contents. The officer there opened

the door of the vehicle and found incriminating evidence

of a crime in plain view. Aiso, in Cady v. Dombroski,

413 U.S. 433, 37 L.Ed.2d 706, 93 S.Ct. 2523 (1973), this

Court upheld the search of the trunk of an impounded

vehicle. Further in Cardwell v. Lewis, U.S., 41 L.Ed.2d

325, 94 S.Ct. 1974), a limited warrantless “search” of

the tire on the wheel and the taking of paint scrapings

from the exterior of the vehicle were deemed not an un-

reasonable invasion of the right to privacy.

Inspection of a car’s identification number differs

from a search of a vehicle and seizure of its contents

in one important aspect. The occupants of the car cannot

harbor an expectation of privacy in the serial number.

States require manufacturers to identify vehicles by affix-

ing identification numbers which are quasi-public in-

formation, and the viewing of such numbers is but 2

minimal invasion of one’s privacy. A police officer.

therefore. should he freer to inspect the numbers with-

out a warrant than he is to search a car for purely private

property.

Therefore, because of the substantial weight of fed-

eral authority, where there is a legitimate reason to do

so, the mere checking of the serial number of an automo-

bile in order to more positively identify it, is not a search

13

within the prohibition of the Fourth Amendment. Manu-

facturers are required to place serial numbers on vehicles

as an aid in identifying them. An autumolile runs and

stops on the public roads, where viewers may crawl under

it or press their faces against its windows. Its exterior

and much of its interior are within the plain view of the

casual or purposeful onlooker, and thu: are not protected

by the Fourth Amendment from searching eves. Open-

ing the car door, looking under the hood, or crawling

under the car to inspect the secreted VIN nusiber does

not independently bring an inspection of the VIN within

the scope of the Fourth Amendment. Moreover. even

if such an investigation is considered to he a “search.”

it is argued that it is a reasonable one where the searcher

has reliable i *ormration to believe that a vehicle of like

kina has be-a stolen. The arresting officer was informed

that the pickup truck was stolen as per information from

a companion police officer who had made an independent

investigation. There could scarcely be a more appropri-

ate case for identifying a motcr vehicle’s identitication

number. The number in itself is not evidence of a crime.

but it may lead to the identity of the true owner. So lone

as the inspection is justified, not based on an inarticulate

hunch, and is not a pretext for an exploratory search,

it is well within the concept of reasonableness which de-

fines the essential Fourth Amendment houndary within

which law enforcement officers must proceed.

14

II

ONE CHARGED WITH THE THIEVERY OF A

STOLEN MOTOR VEHICLE IN VIOLATION OF

STATE STATUTORY LAW HAS NO STANDING

TO OBJECT TO THE “SEARCH” OF THAT VE-

HICLE FOR ITS IDENTIFICATION NUMBER ON

THE BASIS OF THE FOURTH AMENDMENT.

No one contends in this case that the petitioner

owned or had @ possessory right of any kind in the auto-

mobile. The motor vehicle had heen stolen. Petitioner

had ne right to he in it in the first place and he had no

right to forlid anyone to enter it. He offered no proof

of his right of possession. Courts should always be dili-

gent in preventing the lowering of the barriers which

protect the individual liberties of our citizens. but in the

exercise of this diligence the personal and property rights

of members of the public should not be overlooked for the

henefit of those who have regard for neither.

The overwhelming weight of authority and the better

reasoning are represented by the cases which hold square-

ly that a thief has no “standing” in a stolen automobile

ven more compelling than the precedent from other

jurisdictions in accord with the decision of the Kentucky

Court of Appeals, however, is the inherent logic of the

proposition. No valuable social purpose or constitutional

Significance could conccivally Le served by extending the

protection of the Fourth Amendment to a thief in the

enjoyment of a stolen automobile.

15

CONCLUSION

The issues presented by the petitioner alleging a

denial of federally protected constitutional rights have

been raised in the courts below an+l were resolved ad-

versely to petitioner’s contentions. Thus they may not

be a basis for the granting of certiorari review. More.

over, the petitioner has failed to meet the jurisdiction:l

requirements of 28 U.S.C. $1257(3). Furthermore, peti-

tioner has failed to establish that the issues he now pre-

sents actually involve any real significant conflict of de -

cisions between or among other state or federal courts.

For the foregoing reasons, the respondent requests that

the petition for writ of certiorari be dismissed.

Respectfully submitted,

4

ED W. HANCOCK

Attorney General

MILES H. FRANKLIN

Assistant Attorney General

Capitol Building

Frankfort, Kentucky 40601

COUNSEL FOR RESPONDENT

|e SRAM

16

PROOF OF SERVICE

I, Miles H. Franklin, counsel for respondent herein,

and a member of the Bar of the Supreme Court of the

United States, hereby certify that on the teh day of

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a. 1975, I served the petitioner with

Brief for Respondent in Opposition, by placing 6 copies

of the same in the United States mail, first class postage

prepaid. and addressed to Hon. John G. O’Mara, 607

West Ormsby Avenue, Louisville, Kentucky 40203; and

Hon. Joseph A. Biagi. 726 Main Street, Shelbyville, Ken-

' tucky 40065, Counsel for Petitioner.

ye VA 4 Sitdeh ler

Miles H. Franklin AC.

Assistant Attorney General

Capitol Building

Frankfort, Kentucky 40601

Counsel for Respondent