
    The People of the State of New York, Respondent, v Benigno Class, Appellant.
    Argued October 12, 1984;
    decided November 27, 1984
    
      POINTS OF COUNSEL
    
      Mark C. Cogan and William E. Hellerstein for appellant.
    The police, after stopping appellant for driving a car with a cracked windshield 5 to 10 miles per hour over the speed limit, violated appellant’s right to be free from unreasonable searches and seizures where they entered his car to examine the vehicle identification number without a warrant or any reason to believe the car was stolen. (People v Marsh, 20 NY2d 98; Dyke v Taylor Implement Co., 391 US 216; People v Erwin, 42 NY2d 1064; People v Adams, 32 NY2d 451; Terry v Ohio, 392 US 1; People v Sobotker, 43 NY2d 559; People v Vidal, 71 AD2d 962.)
    
      Mario Merola, District Attorney (Roger L. Stavis and Steven R. Kartagener of counsel), for respondent.
    The seizure of a loaded weapon, inadvertently discovered in plain view during a routine inspection to verify appellant’s VIN number following a valid traffic stop, was reasonable and therefore lawful. (People v Farrell, 59 NY2d 686; People v Butler, 58 NY2d 1056; People v Harrison, 57 NY2d 470; People v Adams, 32 NY2d 451; People v Sobotker, 43 NY2d 559; People v Ingle, 36 NY2d 413; People v David L., 81 AD2d 893, 56 NY2d 698; People v Vidal, 71 AD2d 962; People v Livigni, 88 AD2d 386, 58 NY2d 894; Pennsylvania v Mimms, 434 US 106.)
   OPINION OF THE COURT

Kaye, J.

A police officer’s nonconsensual entry into an individual’s automobile to determine the vehicle identification number violates the Federal and State Constitutions where it is based solely on a stop for a traffic infraction (US Const, 4th Arndt; NY Const, art I, § 12).

On May 11, 1981, in the late afternoon, Police Officers Lawrence Meyer and William McNamee observed defendant driving 5 to 10 miles per hour above the speed limit, in a car with the windshield cracked on the passenger side. The officers drove alongside defendant’s car and instructed him to pull over. Defendant followed this directive, emerged from his car and approached Officer Meyer, the driver of the police car. He provided Meyer with his registration and proof of insurance but stated that he did not have a driver’s license in his possession. Meanwhile, Officer McNamee had gone directly to defendant’s car, opened the door and checked the left door jamb for the vehicle identification number (VIN). Since the VIN was not located on the door jamb, McNamee reached in and moved papers on the dashboard to enable him to view the VIN. In doing so, he saw a handle of a gun protruding from underneath the seat, seized it, and defendant was promptly arrested.

The hearing court denied defendant’s motion to suppress the gun. Although the court concluded that the officers had “no reason to believe the vehicle * * * was stolen” when defendant was stopped, it found their action reasonable in light of defendant’s “immediately exiting the car and walking over to the police car, instead of waiting in his automobile, coupled with the fact that the defendant did not have a driver’s license in his possession”. Defendant then pleaded guilty to criminal possession of a weapon in the third degree and was sentenced to five years’ probation. On appeal to the Appellate Division, the four-Justice majority affirmed, without opinion. The dissenting Justice found the search impermissible because “there was absolutely no predicate for believing the car was stolen.” (97 AD2d, at p 742.)

VIN inspections typically involve opening a car door to locate the VIN on the doorpost, opening the hood to locate the VIN on the engine, or looking for the hidden VIN in obscure parts of an automobile. While this court has not previously considered the legality of such inspections conducted without consent, lower courts in this State, as well as courts in other jurisdictions, have approached the question from divergent perspectives. Initially, courts are divided on the threshold issue of whether a VIN inspection constitutes a search. On the facts presented by this appeal, we conclude that a search was conducted.

The Fourth Amendment “protects people from unreasonable government intrusions into their legitimate expectations of privacy” (United States v Chadwick, 433 US 1, 7; see, also, Katz v United States, 389 US 347; People v Perel, 34 NY2d 462, 466). One has no legitimate expectation of privacy in locations in a car which are observable by passersby. Accordingly, an officer’s simply peering inside an automobile does not constitute a search and the Fourth Amendment consequently does not limit this activity (Texas v Brown, 460 US 730; People v Cruz, 34 NY2d 362, 370). But there are many places inside a car — including the area underneath the seats — which cannot be viewed from the outside and which an individual legitimately expects will remain private. The government intrusion here, Officer McNamee’s opening the door and reaching inside, was undertaken to obtain information and it exposed these hidden areas. It therefore constituted a search (cf. United States v Place, 462 US 696; People v Miller, 43 NY2d 789, affg 52 AD2d 425, 428; People v Sullivan, 29 NY2d 69).

The absence of any legitimate expectation of privacy in the VIN itself is not determinative of the issue presented. The fact that certain information must be kept, or that it may be of a public nature, does not automatically sanction police intrusion into private space in order to obtain it. In particular, the existence of a VIN on every automobile cannot enable police, without any basis, to make “wholesale entries of cars on nothing more than a hope that one of them might turn out to be stolen.” (1 LaFave, Search and Seizure, § 2.5, p 360.)

A VIN inspection normally involves a lesser invasion of privacy than a full-blown search because of the fixed, known and readily accessible location of the VIN on the automobile. Additionally, there is a compelling police interest, in situations such as automobile thefts and accidents, in the positive identification of vehicles. Consequently, it may well be that some lesser justification than probable cause would be appropriate. However, it is unnecessary in this case to determine whether probable cause or a lesser justification should have been required to support the search, because here there was no semblance of either. The trial court based its apparent finding of reasonable suspicion to believe the car was stolen on two factors: defendant’s exiting the vehicle and approaching the officers, and his failure to produce a driver’s license. But a driver’s emergence from a car upon being stopped by police is not indicative of criminal activity. Nor was reliance properly placed by the court on defendant’s failure to produce a license because McNamee, having proceeded directly to defendant’s car, was not even aware of that fact when he entered the automobile. Since competing inferences cannot reasonably be drawn from the undisputed facts presented, the hearing court erred as a matter of law in finding reasonable suspicion to believe the car was stolen (see People v Harrison, 57 NY2d 470, 477). The facts reveal no reason for the officer to suspect other criminal activity or to act to protect his own safety (compare People v David L., 56 NY2d 698, cert den 459 US 866). The sole predicate for the officer’s action here was defendant’s commission of an ordinary traffic infraction, an offense which, standing alone, did not justify the search (cf. People v Marsh, 20 NY2d 98).

Some lower court cases in New York have interpreted subdivision 4 of section 401 of the Vehicle and Traffic Law as authorizing VIN inspections (see, e.g., People v Gohn, 49 AD2d 585; People v Frank, 61 Misc 2d 450; People v Goldstein, 60 Misc 2d 745). That section provides, in pertinent part: “Carrying certificate of registration. Every person operating a motor vehicle or a motor vehicle and a trailer, registered or transferred in accordance with any of the provisions of this chapter, shall upon demand of any magistrate, motor vehicle inspector, peace officer, acting pursuant to his special duties, or police officer produce for inspection the certificate of registration or the registration renewal stub for such vehicle and shall furnish to such magistrate, inspector, officer or police officer any information necessary for the identification of such vehicle and its owner, and all information required concerning his license to operate, if he is required by law to have such a license, and shall, if required, sign his name in the presence of such magistrate, inspector, peace officer or police officer as a further means of identification.”

In section 401, however, the Legislature has seen fit only to authorize an officer to demand information necessary to identify the car, as he may demand the certificate of registration for the vehicle. No basis has been shown for ignoring this legislative direction. Here, had the officer complied with the statute and demanded exhibition of the VIN, defendant could have avoided the intrusion on his privacy interests by simply moving the papers on the dashboard, thereby facilitating the Officer’s observation of the VIN through the windshield. Section 401, therefore, provided no justification for the officer’s entry of defendant’s car.

Accordingly, the order should be reversed, the motion to suppress granted, the conviction vacated and the indictment dismissed.

Jones, J.

(dissenting). I would affirm the order of the Appellate Division which upheld Criminal Term’s denial of defendant’s motion to suppress the .22 calibre revolver. I do not differ with the majority’s recital of the facts; I do depart, however, from the legal conclusion that it reaches.

It is undisputed that the police were warranted in stopping defendant’s 1972 Dodge Charger. They had observed that it was traveling in excess of the speed limit and that it had a cracked windshield. In this circumstance they were justified not only in stopping the vehicle but thereafter in obtaining its vehicle identification number (VIN).

The requirement that each motor vehicle be assigned a VIN is for the purpose of facilitating rapid, positive identification of each particular motor vehicle. The VIN is functional only when affixed to the particular vehicle and comes into the owner’s possession solely by reason of such affixation. The letters and digits constituting the VIN (as distinguished from the tab on which they may be imprinted) have no independent existence and are not susceptible of being possessed by the owner separate and apart from his possession of the vehicle or of being independently “seized” by the police.

The Supreme Court of the United States and our court have recognized that the owner of a motor vehicle has only a diminished expectation of privacy with respect to the contents of an automobile that is being operated on the highway (United States v Chadwick, 433 US 1, 11-13; People v Belton, 55 NY2d 49, 53). With respect to a VIN affixed to a motor vehicle, however, once the vehicle is on the highway the owner can have no expectation of privacy. The purpose of the VIN is to proclaim the identity of the vehicle, a purpose quite inconsistent with any legitimate privacy interest of the owner.

The police on the other hand have a compelling interest, usually in the identification of a particular motor vehicle, but always in the ready availability of a near-infallible method of vehicular identification. Positive identification of a motor vehicle may be sought by them for a variety of regulatory and administrative objectives as, for example, to establish correlation with a registration certificate produced by the driver, to make positive identification of a vehicle involved in an accident, or to determine whether the vehicle has been stolen. Its identification may also be sought, of course, for purposes of recovery of a vehicle previously known to have been stolen, but in many instances when inspection of the VIN is made the police have no intimation of actual preexistent criminal activity. Familiar concepts with respect to the necessity for probable cause to justify a search for or seizure of criminal evidence or contraband would be applicable to VIN inspection only if the objective of the police action was search for proof with respect to known or suspected preexisting criminal activity. These concepts are immaterial and have no application where, as here, there is no evidence that such was the purpose of police inspection of the VIN, the objective of which was identification of the vehicle only, with no thought of connection with known or suspected previous criminal activity. The purpose of the police was to obtain information, not to seize physical evidence.

In sum, except possibly in exceptional circumstances, I would hold that whenever the police are justified in making a traffic stop (cf. People v Ingle, 36 NY2d 413) they are authorized to inspect the VIN.

After the concededly permissible traffic stop in this instance Officer McNamee opened the driver’s door of the vehicle in expectation of finding the VIN on the inside panel of the door. Not finding it there he went directly to the other location where to his knowledge the VIN would be found — on top of the dashboard on the driver’s side. When he observed that view of the VIN in that location was obscured by some papers, he reached inside the vehicle and moved them aside to view the VIN. That he did not first request defendant to remove the papers or seek his consent to do so is immaterial; such consent could not permissibly have been withheld. The officer was not searching for or intending to seize any physical evidence on the ground that he had probable cause to believe that a crime had been committed; he was seeking information relevant and appropriate to the traffic stop which all concede he had been authorized to make.

The right of the police to inspect the VIN affixed to a motor vehicle is to be distinguished from the right of the police to search for or to seize a vehicular registration certificate. Registration of a motor vehicle, with the related license plates, in contrast to a VIN, serves to describe a vehicle and identify its owner and constitutes proof that the vehicle has been properly licensed for operation on the highway for a specified period of time, customarily one year. In the course of its life a motor vehicle may be, and customarily is, the subject of several different registration certificates, reflecting different periods of licensing and usually successive ownership. A registration certificate may be independently possessed by its owner, on his person, in the glove compartment of the vehicle, or otherwise. Without probable cause the police would have no right to search the person of the driver of the interior of the vehicle to obtain a registration certificate. Penalties might attach to the failure of the driver to produce the registration certificate, but that fact would not enlarge the right of the police to search. The VIN, however, is intended to be indelibly affixed to the particular vehicle throughout its existence, irrespective of changing ownership of the vehicle and whether or not it is licensed for operation on the highway. As its name states, its purpose is vehicle registration without reference to ownership or licensure for operation.

Inasmuch as in this instance the police had the right to inspect the VIN of the 1972 Dodge and the revolver was observed inadvertently and without intention to search for it, under the plain view doctrine it should not be suppressed (see Texas v Brown, 460 US 730).

Chief Judge Cooke and Judges Wachtler, Meyer and Simons concur with Judge Kaye; Judge Jones dissents and votes to affirm in a separate opinion in which Judge Jasen concurs.

Order reversed, etc. 
      
      . Compare, for example, United States v Polk (433 F2d 644); United States v Johnson (413 F2d 1396, affd en banc 431 F2d 441); Cotton v United States (371 F2d 385); People v Valoppi (61 Mich App 470); and People v Hart (75 Misc 2d 908), with United States v Powers (439 F2d 373, cert den 402 US 1011); Simpson v United States (346 F2d 291); State v Moore (_Hawaii_, 659 P2d 70); People v Piper (101 Ill App 3d 296); and State v Simpson (95 Wn 2d 170). Though not treating a VIN inspection as a search, some courts have limited the officers’ right to check the VIN “to those cases in which there is a legitimate reason to do so” (see, e.g., Cotton v United States, 371 F2d 385, 393, supra), The basis for imposing this limitation is not clear.
     
      
      . Although the gun was “protruding” from underneath the seat, Officer McNamee first observed it while conducting the search. The only question, then, is whether the officer had a right to be in the position from which he made his observation.
     
      
      . We are not confronted with a governmental intrusion so circumscribed as to expose only information or articles in which there is no legitimate expectation of privacy (compare United States v Place, 462 US 696; Smith v Maryland, 442 US 735). Nor are we concerned here with an inventory of an impounded car.
     
      
      . No suggestion has been made that the police without basis could search the person of the driver or the interior of the vehicle to obtain a registration certificate, yet the statutory provision is no different for the VIN and the certificate of registration; in both instances the information must be provided on demand of a police officer.
     
      
      . A large number of cases have expressly held that there is no expectation of privacy in a VIN (e.g., United States v Powers, 439 F2d 373 [4th Cir], cert den 402 US 1011; United States v Polk, 433 F2d 644 [5th Cir]; United States v Graham, 391 F2d 439 [6th Cir], cert den 393 US 941; United States v Ware, 457 F2d 828 [7th Cir]; State v Colon, 6 Conn Cir 722; Commonwealth v Hason, 387 Mass 169; People v Brooks, 405 Mich 225; People v Brewer, 112 Mich App 670; People v Valoppi, 61 Mich App 470; Commonwealth v Grabowski, 306 Pa Super Ct 483).
     
      
      . Several courts have adopted the view that entry into a motor vehicle to find the VIN is not a search for purposes of the Fourth Amendment (e.g., United States v Forrest, 620 F2d 446 [5th Cir]; United States v Duckett, 583 F2d 1309 [5th Cir]; United States v 
        
        Williams, 434 F2d 681 [5th Cir]; United States v Polk, 433 F2d 644 [5th Cir]; United States v Johnson, 413 F2d 1396, affd en banc 431 F2d 441 [5th Cir]; United States v Graham, 391 F2d 439 [6th Cir], cert den 393 US 941; United States v Ware, 457 F2d 828 [7th Cir]; Cotton v United States, 371 F2d 385 [9th Cir]; State u Renfrow, 123 Ariz 64; State v Cohn, 284 So 2d 426 [Fla App]; People u Brewer, 112 Mich App 670; People v Valoppi, 61 Mich App 470; Fox v Commonwealth, 213 Va 97). Many courts have upheld the VIN inspection, even if it be termed a search, in circumstances amounting to less than probable cause (e.g., United States v Dadurian, 450 F2d 22 [1st Cir], cert den 405 US 1044; United States v Powers, 439 F2d 373 [4th Cir], cert den 402 US 1011; United States v Duckett, 583 F2d 1309 [5th Cir], supra; United States v Ware, 457 F2d 828 [7th Cir], supra; United States v Powless, 546 F2d 792 [8th Cir]; United States v Brown, 535 F2d 424 [8th C.]; Cotton v United States, 371 F2d 385 [9th Cir], supra; State v Renfrow, 123 Ariz 64, supra; State v Colon, 6 Conn Cir 722; People v Wolf, 60 Ill 2d 230; People v Brewer, 112 Mich App 670, supra; Wood v State, 632 SW2d 734 [Tex App]; Fox v Commonwealth, 213 Va 97, supra; cf. United States v Squires, 456 F2d 967,970 [2d Cir]). Research has disclosed only six reported cases in which police inspection of a VIN has been struck down (United States v Nikrasch, 367 F2d 740 [7th Cir]; Simpson v United States, 346 F2d 291 [10th Cir]; State v Moore, _ Hawaii _, 659 P2d 70; People v Piper, 101 111 App 3d 296; State v McGann, 124 NH 101; State v Simpson, 95 Wn 2d 170).
     
      
      . The right to inspect the VIN would not, of course, justify a rummaging search of a motor vehicle. The officer would be warranted only in going directly, as he did in this case, to a location where by the officer’s advance knowledge the VIN was to be found. By like token, a pretext search would not be condoned.
     
      
      . I would reach this result without reference to the provisions of subdivision 4 of section 401 of the Vehicle and Traffic Law.
     