Appeal from the Circuit Court of Cook County, the Hon. Martin
F. Hogan, Judge, presiding.
JUSTICE MORAN DELIVERED THE OPINION OF THE COURT:
Defendant, Leslie Brown, was charged by complaint with violating section 4-102(a)(4) of the Illinois Vehicle Code (Code) (Ill. Rev. Stat. 1981, ch. 95 1/2, par. 4-102(a)(4)) for possessing an automobile with a removed and falsified vehicle identification number (VIN). Pursuant to defendant's motion, the circuit court of Cook County dismissed the complaint on the ground that section 4-102(a)(4) violates due process and equal protection of the law under both the United States and Illinois constitutions (U.S. Const., amend. XIV, sec 1; Ill. Const. 1970, art. I, sec. 2). The State brought this direct appeal as a matter of right pursuant to Supreme Court Rule 603. 73 Ill.2d R. 603.
The single question we address here is: Did the trial court err in finding section 4-102(a)(4) unconstitutional?
The complaint charged defendant with committing the offense of "False Manufactors [sic] Identification Number in that he possessed a motor vehicle, to wit: 72 Chev. 2 dr. Blue Ill QE5613 (no vin) on which the manufactors identification [sic] number had been removed and falsified and said Leslie Brown had no knowledge that said number had been falsified."
Section 4-102 provides in pertinent part:
"(a) It is a violation of this Chapter for:
(4) A Person to buy, receive, possess, sell or dispose of a vehicle or any component part of a vehicle if the manufacturer's identification number thereon has been removed or falsified, and such person has no knowledge that the number is removed or falsified;
(b) Sentence. A person convicted of a violation of this Section shall be guilty of a Class A misdemeanor." (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 95 1/2, pars. 4-102(a)(4), (b).)
Conviction of a Class A misdemeanor is punishable by imprisonment for any term less than one year. Ill. Rev. Stat. 1981, ch. 38, par. 1005-8-3(a)(1).
Defendant admits the legislature has the authority to create absolute-liability offenses (see Ill. Rev. Stat. 1981, ch. 38, par. 4-9) but maintains this authority is subject to constitutional limitations (Smith v. California (1959), 361 U.S. 147, 4 L.Ed.2d 205, 80 S.Ct. 215; Lambert v. California (1957), 355 U.S. 225, 2 L.Ed.2d 228, 78 S.Ct. 240; United States v. Marvin (8th Cir. 1982), 687 F.2d 1221). He argues it is arbitrary and unreasonable to impose a duty to inspect and verify the VIN on a mere possessor of a motor vehicle. It is his contention that "[t]he statute simply goes too far. Had it been limited to buyers, sellers, owners, etc., the instant case could never have been initiated." He claims section 4-102(a)(4) as applied to him violates due process of law, and is unconstitutional on its face. For this proposition he cites Bionic Auto Parts & Sales, Inc. v. Fahner (N.D. Ill. 1981), 518 F. Supp. 582, 586-87.
In Bionic, the plaintiffs challenged the validity of section 5-401(e) of the Code (Ill. Rev. Stat. 1979, ch. 95 1/2, par. 5-401(e)) and Rule 5-401A promulgated thereunder by the Illinois Secretary of State. Section 5-401(e) provided for warrantless searches of businesses licensed to deal in used auto parts. It left the authority to make these searches to the discretion of enforcement officers and did not define regular enforcement procedures. The court held this section failed to meet the standards for administrative searches established in Donovan v. Dewey (1981), 452 U.S. 594, 69 L.Ed.2d 262, 101 S.Ct. 2534, and was invalid under the fourth amendment.
The court also discussed the relationship between section 4-102(a)(4) of the Code and Rule 5-401A. Paragraph 1(G) of the rule required licensees like the plaintiffs to record whether any serial number or other identifying mark of the manufacturer had been altered, defaced or removed. The court emphasized that under section 4-102(a)(4), the plaintiffs could be held responsible even if they did not know the identification number on an auto part had been removed or falsified. In the court's view, this section, in not requiring knowledge, was an obvious drafting error. The court also expressed its doubt concerning the constitutionality of the statute as drafted. However, it indicated that as long as section 4-102(a)(4) remained in the Code, the record-keeping requirement of Rule 5-401A, which would force a licensee to prove his own violation of section 4-102(a)(4), clearly would pose fifth amendment problems. On this basis, the court held that paragraph 1(G) of Rule 5-401A was invalid.
Defendant's reliance in the instant case on Bionic is misplaced. There, the court was not required to decide the validity of section 4-102(a)(4). In expressing its doubt over the section's constitutionality, the court overlooked the fact that the legislature can create offenses not requiring scienter. Moreover, the court's conclusion that there was a drafting error made in the promulgation of section 4-102(a)(4) is not supported by a close analysis of Illinois law. We find the legislature expressly desired to remove knowledge as an element of the offense. (Compare Ill. Rev. Stat. 1981, ch. 95 1/2, par. 4-102(a)(4), with Ill. Rev. Stat. 1957, ch. 95 1/2, par. 4-102(h).) In addition, an early vehicle code provision similar to section 4-102(a)(4) was silent on the scienter element and the court held knowledge was not required under either the Federal or Illinois constitutions. People v. Billardello (1925), 319 Ill. 124. See People v. Johnson (1919), 288 Ill. 442; People v. Fernow (1919), 286 Ill. 627.
Section 4-102(a)(4) specifically and clearly provides that a person commits the offense even though he has no knowledge the VIN is removed or falsified. Indeed, if he has such knowledge he commits a felony. See ...