The Case of the “Contraband” Corvette

Richard Martinez always wanted a Corvette, and he finally found one he liked. The car was a 1959, finished in Roman Red with an Ermine White cove, with a red vinyl interior and a hard top, an older restoration that was wearing well. The car was for sale at Jabaay Motors in Indiana, where Martinez negotiated a $50,000 purchase price.

Everything went sideways when he took the Corvette to the state inspection station in his home state of Kansas. State trooper Dave Albers immediately noticed something amiss: “The VIN affixed to the driver’s side hinge post was incorrect and was attached with non-factory rivets.” He also noticed a discrepancy in the fourth character on the VIN. It should have been an “S” to reflect that the car was built at the St. Louis plant. Instead, that character was a “5,” which made no sense.

Albers then inspected the secret VINs on the Corvette. Every manufacturer places the VIN or some other identifying number in one or two secret locations on its cars, to assist in identifying them later. Albers knew there were two places on the frame where the VIN would be stamped. Both areas, however, showed extensive grinding, and chemical treatment to raise the numbers was also unsuccessful. Albers pointed out that these were the only places where the grinding was performed, indicating someone had tried hard to obliterate the VIN.

Immediate seizure

Under Kansas law, a car whose VIN has been “destroyed, removed, altered or defaced” is deemed to be contraband. As such, it is subject to seizure, confiscation and destruction. So, the Kansas Highway Patrol immediately seized Martinez’s Corvette and put it into storage. Imagine his reaction — he had just purchased his dream car, took it to an inspection station, and wound up having to call someone to pick him up.

Although the State of Kansas had possession of the “contraband” Corvette, it couldn’t legally crush it. It first needed a judge to determine that doing so is proper. To do that, it needed to file a lawsuit. This may seem odd, but the proper defendant in such a situation is the car itself, so the case is captioned “State of Kansas v. 1959 Corvette.” The owner is allowed to intervene in the lawsuit and basically defend the car.

There are two interesting points in the litigation:

1. The state recognizes that Martinez did not do anything wrong and that he is a completely innocent purchaser.
2. The state admits it cannot prove that the Corvette is actually stolen. The VIN issues may suggest that, but the state has been unable to identify the “correct” VIN, and therefore cannot prove that the car belongs to someone else.

Amicus jumps in

The case caught the attention of Samuel G. MacRoberts, the Litigation Director at the Kansas Justice Institute. He explains that “the Kansas Justice Institute is a nonprofit, pro bono litigation firm that combats governmental overreach.” It focuses on forfeiture cases because they see a lot of overreach there.

After reading the filings in the case, KJI asked the court to allow it to appear as an amicus curiae (Latin for “friend of the court”) and submit a brief. The court at first declined, stating that the case was not yet to the point where that would be helpful. But later, the court contacted KJI and requested its participation.

Amicus curiae sometimes participate in litigation when it involves legal issues that are of particular interest to them. They are not parties to the case, and they are not supposed to represent the interests of any of the individual parties to the litigation. Rather, their role is to assist the court in reaching the proper result. They do that by filing a brief informing the court of legal issues and analysis (sort of like a memo to the court), although all concerned are aware that their brief reflects their specific perspective on the issue. In major cases, it is common to see amicus briefs filed on both sides of the litigation.

MacRoberts and KJI submitted an excellent brief that supported Martinez’s position. KJI raised due-process issues that come up when government seeks to destroy an innocent person’s property, challenged the statute as being overly vague, and expressed that the statute violated the Interstate Commerce provisions of the U.S. Constitution.

Change the law

The KJI brief caught the attention of Kansas House Representative Leo Delperdang, who happens to be a member of SEMA (the automotive Specialty Equipment Market Association). He was able to persuade the House Transportation Committee to introduce a bill to change Kansas law. 

Delperdang explained in his testimony that the removal and replacement of a VIN plate was common in high-quality restorations. Additional testimony in support came from SEMA and MacRoberts and KJI. The only testimony in opposition was from the Kansas Highway Patrol, which thought the current system, where one could have the Highway Patrol witness both the removal and replacement of the VIN plate, was adequate. The bill passed and has now become law.

The law now includes a restoration exception that allows for the removal and reinstallation of an antique vehicle’s VIN plate immediately after the completion of the restoration.

MacRoberts, however, explained that the Corvette lawsuit has not yet been decided. The judge has informed the parties that he is ready to rule but is waiting for their final submissions. It would seem that these final submissions will consider whether the law change resolves the case.

Now what?

On the surface, this would seem to be a non-issue. The law was changed because the Kansas Legislature didn’t like what the state was doing in the Martinez case. That is certainly what Martinez will be telling the court, and it may well be enough for him to win. Unfortunately, that may be too simplistic an answer. If one reads the new statute carefully and parses its words, there are many questions that may be difficult to answer.

It seems pretty certain that the VIN plate in the Corvette is not the original, since the “S” was changed to a “5.” So, it wasn’t just removed and replaced. But the statute speaks to reinstalling the manufacturer’s VIN, not the “VIN plate.” A replacement VIN plate should work here, although that is not totally clear. The secret VINs were also removed, and they were not “reinstalled.” Is reinstalling one of the VINs enough, or do all of them have to be reinstalled?

The restoration exception applies only when the restorer has no reason to know that the vehicle was stolen. The Kansas Highway Patrol is hung up on this point. It insists that VINs are usually removed this way when someone is trying to hide that the car was stolen. While we all know that to be true, and while that suspicion is certainly raised, it isn’t necessarily the case.

Take the notorious example of a “rebodied” Shelby GT350. That process starts with a wrecked — but authentic — GT350. Once a good-condition Mustang fastback of the same model year is found, the VIN plates are cut out of both cars and the Shelby VIN plate is welded into the regular Mustang. Put all the Shelby parts (or replacements) into the Mustang, and now you have a “rebodied” GT350. If you’re clever, you also grind out the Mustang’s secret VINs.

Sure, a lot of people think that this creates a fake GT350, but you didn’t use a stolen car to do it. Such a “rebody” can be performed with legitimately owned cars. 

With this Corvette, the state is unable to prove that it was stolen because it can’t identify it as anything other than what it claims to be. Consequently, it may be unable to prove that the restorer should have known the car was stolen. Sure, the restorer had reason to suspect that it was stolen, but that isn’t enough, as the law uses known, not suspected.

There is also the question of which state’s law should apply. Although the Kansas statute makes cars with altered VINs contraband, that is the secondary part of a statute that is primarily aimed at criminalizing the removal of the VIN. 

But in this case that didn’t happen in Kansas. This car was purchased in Indiana, titled in Illinois, and restored who knows where. Removal and replacement of the VIN tag could have been legal in the state where it occurred, and Kansas can’t criminalize conduct in another state.

We’ll be watching for the outcome of this case. ♦