stating that section 556.046 codified the lesser included offense test announced in Blockburger
How later courts described this case
- stating that section 556.046 codified the lesser included offense test announced in Blockburger
- ruling that possession and transportation of marijuana are separate offenses
- rejecting argument that possession is lesser-included offense of transportation
Written by the judges who cited it.
The opinion
ALBERT L. RENDLEN, Senior Judge,
concurring.
While concurring in the principal opinion, I believe it important to point out certain additional aspects of the record which support the judgment and require affirmance of this cause.
The finding by the trial court that the officer’s testimony concerning his detection of the odor emanating from the cargo compartment sufficed to permit the search; however, these further facts in themselves justify the officer’s action: 1) The late hour of the stop, State v. Burkhardt, 795 S.W.2d 399, 405 (Mo. banc 1990); 2) The location of the stop, Id. As in Burkhardt , the stop had occurred on Interstate 1-44 in the southwestern part of the state, a route known to be used by drug traffickers to bring narcotics into this state. However as noted in Carrol v. U.S., 267 U.S. 132 , 45 S.Ct. 280 , 69 L.Ed. 543 (1925), though the locale may be relevant, like any factor we must view such within the totality of the *905 circumstances; 3) Defendant, a Mexican national, had commenced his journey from El Paso, Texas, and was traveling to Chicago. In US. v. Sokolow, 490 U.S. 1 , 109 S.Ct. 1581 , 104 L.Ed.2d 1 (1989), the court held traveling from Honolulu to Miami was not, standing alone, a cause for suspicion but coupled with the circumstances surrounding the trip such fact could raise suspicion. Id., 109 S.Ct. at 1586 . Additionally the U.S.-Mexico border region is a well known smuggler’s route and defendant apparently had little command of the English language, yet he was driving a truck originally rented to a second party in southern Oklahoma and defendant, inexplicably, had begun his trip at El Paso, Texas; and 4) To Officer Brown, it appeared defendant was apparently using the language barrier artificially to evade a full dialogue. Defendant’s conduct could properly be considered when measuring for probable cause for a warrantless search of the truck. State v. Burkhardt, 795 S.W.2d at 405 .
The individual circumstances may appear innocent in isolation, however, we do not view the facts in a vacuum. As aptly noted in United States v. Sokolow, events which singly appear consistent with innocent travel may in the aggregate give rise to reasonable suspicion. Id., 109 S.Ct. at 1586 .
As to defendant’s equal protection argument, the officer properly considered defendant’s national origin and appearance when concluding there was probable cause to search the vehicle. Though defendant contends otherwise, he cites no authority holding appearance and national origin may not be considered by law enforcement officials. Indeed, in United States v. Brigno-ni-Ponce, 422 U.S. 873 , 95 S.Ct. 2574 , 45 L.Ed.2d 607 (1975), the Supreme Court held a defendant’s Mexican appearance was a relevant factor to be considered by officers when making a Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968) stop. United States v. Brignoni-Ponce, 95 S.Ct. at 2583 .