In Missouri if marijuana is found on a person besides the driver in a car, is the driver responsible?
UPDATED: Apr 15, 2009
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In Missouri if marijuana is found on a person besides the driver in a car, is the driver responsible?
Asked on April 15, 2009 under Criminal Law, Missouri
MD, Member, California Bar / FreeAdvice Contributing Attorney
Answered 13 years ago | Contributor
Could be held responsible for a number of reasons. Reasons could include transporting, intent to sell, etc. Did the driver know it was in the car? Was the driver smoking? Was the passenger smoking? What did the driver tell the police? What did the passenger tell the police? Was the marijuana under the driver's control? Further, your city or town or county ordinances may have their own additional laws concerning possession. See laws below:
Responsibility for the conduct of another.
562.041. 1. A person is criminally responsible for the conduct of another when
(1) The statute defining the offense makes him so responsible; or
(2) Either before or during the commission of an offense with the purpose of promoting the commission of an offense, he aids or agrees to aid or attempts to aid such other person in planning, committing or attempting to commit the offense.
2. However, a person is not so responsible if:
(1) He is the victim of the offense committed or attempted;
(2) The offense is so defined that his conduct was necessarily incident to the commission or attempt to commit the offense. If his conduct constitutes a related but separate offense, he is criminally responsible for that offense but not for the conduct or offense committed or attempted by the other person;
(3) Before the commission of the offense he abandons his purpose and gives timely warning to law enforcement authorities or otherwise makes proper effort to prevent the commission of the offense.
3. The defense provided by subdivision (3) of subsection 2 is an affirmative defense.
(L. 1977 S.B. 60)
(1997) Female can be held guilty of rape where she aids a male in committing the rape, even though she cannot commit a rape individually. Bass v. State, 950 S.W.2d 940 (Mo.App.W.D.).
Ignorance and mistake.
562.031. 1. A person is not relieved of criminal liability for conduct because he engages in such conduct under a mistaken belief of fact or law unless such mistake negatives the existence of the mental state required by the offense.
2. A person is not relieved of criminal liability for conduct because he believes his conduct does not constitute an offense unless his belief is reasonable and
(1) The offense is defined by an administrative regulation or order which is not known to him and has not been published or otherwise made reasonably available to him, and he could not have acquired such knowledge by the exercise of due diligence pursuant to facts known to him; or
(2) He acts in reasonable reliance upon an official statement of the law, afterward determined to be invalid or erroneous, contained in
(a) A statute;
(b) An opinion or order of an appellate court;
(c) An official interpretation of the statute, regulation or order defining the offense made by a public official or agency legally authorized to interpret such statute, regulation or order.
3. The burden of injecting the issue of reasonable belief that conduct does not constitute an offense under subdivisions (1) and (2) of subsection 2 is on the defendant.
(L. 1977 S.B. 60)
Possession or control of a controlled substance, penalty.
195.202. 1. Except as authorized by sections 195.005 to 195.425, it is unlawful for any person to possess or have under his control a controlled substance.
2. Any person who violates this section with respect to any controlled substance except thirty-five grams or less of marijuana is guilty of a class C felony.
3. Any person who violates this section with respect to not more than thirty-five grams of marijuana is guilty of a class A misdemeanor.(L. 1989 S.B. 215 & 58)
This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.
Missouri Court of Appeals Eastern District
Case Style: State of Missouri, Respondent, v. Kersten Sund, Appellant.
Case Number: ED85721
Handdown Date: 06/06/2006
Appeal From: Circuit Court of St. Louis County, Hon. Steven H. Goldman
Counsel for Appellant: Michael A. Gross, Joseph F. Yeckel and N. Scott Rosenblum
Counsel for Respondent: Shaun J. Mackelprang
Kersten Sund appeals the circuit court's judgment, entered after a jury trial, finding Sund guilty of trafficking drugs in the second degree, section 195.223.7, RSMo 2000. The trial court sentenced Sund to five years of imprisonment but suspended the execution of the sentence. The court placed Sund on probation for a period of five years with the special condition that she complete 90 days of shock jail time.
AFFIRMED AND TRANSFERRED TO THE MISSOURI SUPREME COURT.
Division Two holds: The trial court did not err in denying Sund's motion to suppress evidence obtained during a search of the vehicle she had been driving.
Opinion Author: Gary M. Gaertner, Presiding Judge
Opinion Vote: AFFIRMED AND TRANSFERRED TO THE MISSOURI SUPREME COURT. Romines, J., concurs. Draper III, J., dissents.
Appellant, Kersten Sund ("Defendant"), appeals the judgment of the Circuit Court of St. Louis County, entered after a jury trial, finding Defendant guilty of trafficking drugs in the second degree, section 195.223.7, RSMo 2000. The trial court sentenced Defendant to five years of imprisonment but suspended the execution of the sentence. Defendant was placed on probation for a period of five years with the special condition that she complete ninety days of shock jail time. We affirm and transfer to the Missouri Supreme Court.
The following evidence was adduced at the hearing on Defendant's motion to suppress and at Defendant's trial:
On February 26, 2003, Defendant flew from New York, where she lived, to Arizona and met up with her friend Khalila Wolfe ("Wolfe") at a Super 8 Motel. While they were still in Pheonix, Arizona, Wolfe informed Defendant that they would be driving a shipment of marijuana to Ohio. Wolfe had rented a blue Chrysler Concorde vehicle ("the vehicle") from Dollar Rent-A-Car. Defendant and Wolfe then began their drive to Ohio in the vehicle at approximately 9:00 p.m. on February 26, 2003.
At about 10:45 p.m. on February 27, 2003, as Defendant and Wolfe were traveling through Eureka, Missouri, Officer William Knittel, Jr. ("Officer Knittel") stopped them for a traffic violation. Officer Knittel pulled the vehicle over because he had seen the vehicle drift onto the white dashed line which separated the lanes on Interstate 44. Defendant was driving the vehicle at the time and Wolfe was sitting in the passenger seat.
After Defendant pulled over, Officer Knittel approached the vehicle and asked for Defendant's license and vehicle registration, at which time he was given Defendant's driver's license and a car rental agreement. Officer Knittel also asked Defendant some questions to determine whether Defendant had been drinking or falling asleep while driving. Officer Knittel then went back to his patrol car to perform a computer check on Defendant's license, which came back clean. He also reviewed the car rental agreement and discovered that Defendant's name was not on the agreement. As a result, Officer Knittel returned to the vehicle and obtained Wolfe's driver's license. Officer Knittel discovered that Wolfe's name matched the name on the car rental agreement.
Before he returned to his patrol car for a second time, Officer Knittel asked Defendant to join him in his patrol car. Once he and Defendant were in the patrol car, Officer Knittel informed Defendant he was going to issue her a warning. While in the patrol car, Officer Knittel ran a computer check on Wolfe's license and the rental car's license plate registration. Officer Knittel also filled out the warning ticket and a racial-profiling form that he had to fill out as part of the stop. While waiting for the results of the computer checks and filling out the forms, Officer Knittel asked Defendant some questions about her current trip. Officer Knittel then exited the patrol car, approached the vehicle, and returned Wolfe's license to her. Subsequently, Officer Knittel motioned for Defendant to exit the patrol car.
After Defendant exited the patrol car, she was given the warning ticket for improper lane usage and told to be careful. Defendant then walked back towards the vehicle. However, as Defendant was walking back to the vehicle after receiving the ticket, Officer Knittel asked if he could search the vehicle and its contents. Defendant said "sure." Defendant then asked Wolfe to open the trunk. Wolfe asked Officer Knittel why he wanted to open the truck, and Officer Knittel explained that Defendant had given him permission to search the vehicle. Officer Knittel then asked for Wolfe's permission to search the vehicle, which she eventually granted. After granting permission to search, Wolfe opened the trunk.
When the trunk opened, Officer Knittel smelled a very strong odor of raw marijuana. He looked inside the trunk and saw, in plain view, a partially open suitcase containing a brick of what appeared to be marijuana covered with clear plastic wrap. Subsequently, Officer Knittel placed Wolfe and Defendant under arrest, and seized four packages of marijuana. Defendant was advised of her Miranda rights.
At the police station, Defendant was again advised of her Miranda rights. Defendant waived her rights, and then made some statements to the police. Defendant admitted that she knew there was marijuana in the vehicle she was driving. Later weighing and testing revealed that the packages contained approximately sixty-six and a half pounds of marijuana.
On June 11, 2003, Defendant was charged by indictment with trafficking drugs in the second degree. On January 9, 2004, Defendant filed a motion to suppress the evidence procured through Officer Knittel's search of the vehicle. This motion was denied. On August 25, 2005, after a jury trial, Defendant was found guilty of the charged offense. Defendant filed a motion for judgment of acquittal notwithstanding the verdict, or, in the alternative, for a new trial in which she renewed her objection to the introduction of evidence obtained in the search of the vehicle. The trial court denied the motion.
On January 14, 2005, the trial court sentenced Defendant to five years of imprisonment but suspended the execution of the sentence. Defendant was placed on probation for a period of five years with the special condition that she complete ninety days of shock jail time. This appeal by Defendant followed.
In her only point on appeal, Defendant asserts the trial court erred in denying her motion to suppress evidence and overruling her objection to the admission of the evidence during the trial because the State obtained the evidence through an unlawful search and seizure.
Upon reviewing a trial court's decision to deny a motion to suppress, we are limited to a determination of whether there is substantial evidence to support the decision. State v. Howes, 150 S.W.3d 139, 142 (Mo.App.E.D. 2004). We defer to the trial court's factual findings and credibility determinations, but whether the Fourth Amendment has been violated is a legal question we review de novo. Id. Where, as in this case, a motion to suppress was denied and the evidence was introduced at trial, we will consider the evidence presented both at the suppression hearing and at trial in determining whether the motion should have been granted. State v. Goff, 129 S.W.3d 857, 861-62 (Mo.banc 2004).
In her first sub-point on appeal, Defendant argues that the seizure of her person was unlawful in that Officer Knittel detained her beyond the time necessary to investigate the traffic offense.
A routine traffic stop commencing because of a violation of a state traffic law is a justifiable seizure under the Fourth Amendment. State v. Bradshaw, 99 S.W.3d 73, 77 (Mo.App.E.D. 2003). The detention can only lawfully last for the time necessary for the police officer to conduct a reasonable investigation of the traffic violation. State v. Shoults, 159 S.W.3d 441, 445 (Mo.App.E.D. 2005). As long as the police officer is not doing anything more than what he is legally permitted and objectively authorized to do, the resulting stop is constitutional. Id.
A reasonable investigation of a traffic violation may include requesting the driver to sit in the patrol car and questioning of the driver about her destination and purpose. Id. at 445-46. An officer may also request a driver's license and vehicle registration, run a computer check, and issue a citation. Bradshaw, 99 S.W.3d at 77.
Defendant does not dispute that Officer Knittel had a valid basis for initially stopping the vehicle Defendant was driving, but rather claims that the length of the traffic stop was unlawful. There is evidence that, despite the various aspects of the traffic stop, the entire traffic stop lasted between fifteen and twenty minutes. During this time, Officer Knittel, inter alia: 1) asked some initial questions to determine if Defendant had been sleeping at the wheel or was driving while intoxicated; 2) ran a computer check on the driver's licenses of both Defendant and Wolfe; 3) ran a computer check on the rental car's license plate registration; 4) filled out a warning citation related to the traffic offense; and 5) filled out a racial profiling form.
Defendant does not contend in her brief that the initial questions asked by Officer Knittel to determine if she had been falling asleep at the wheel or driving while intoxicated were unlawful. Secondly, Officer Knittel's computer check of Wolfe's license was legally permissible, because Defendant could not provide proof that she was entitled to operate the car as her name was not on the car rental agreement. He ran a computer check on Wolfe's license after finding her name matched the name listed on the car rental agreement. Furthermore, Officer Knittel's brief conversation with Defendant concerning details of her road trip only occurred while he was awaiting the results of computer checks and filling out paper work related to the traffic stop. Questioning Defendant about her destination and purpose during the routine traffic stop was permissible and did not unlawfully prolong the traffic stop. Thus, all of Officer Knittel's actions were consistent with a routine traffic stop.
Finally, the traffic stop was complete after Officer Knittel handed Defendant the warning citation and told her to be careful. Defendant and Wolfe subsequently consented to Officer Knittel's search of the trunk. We concede that Officer Knittel would have needed reasonable suspicion to conduct an investigation upon completion of the traffic stop had he not created a consensual encounter. However, Defendant does not argue within her first sub-point on appeal that Officer Knittel failed to create a consensual encounter when, while Defendant was returning to her car with the warning ticket in her possession, he asked Defendant for permission to search the trunk of the vehicle. Even within Defendant's analysis under the second sub-point on appeal, Defendant does not directly argue that, applying controlling consensual encounter case law, Officer Knittel failed to create a consensual encounter after the traffic stop was complete. In fact, in her second sub-point on appeal, Defendant concedes that the tactics Officer Knittel used in creating a consensual encounter "may not constitute misconduct per se . . .."
Therefore, the trial court did not err in finding that the seizure of Defendant by Officer Knittel was not an illegal seizure. Sub-point denied.
In her second sub-point on appeal, Defendant argues that the search of the vehicle was unlawful in that the consent given to search the vehicle was tainted by the unlawful detention of her and was not freely and voluntarily given.
A defendant has the initial burden of proving that she has standing to challenge a search, under the Fourth Amendment, by demonstrating that she has a legitimate expectation of privacy in the place or thing searched. State v. Ramires, 152 S.W.3d 385, 395 (Mo.App.W.D. 2004). A defendant does not have a legitimate expectation of privacy in a car if there is proof that she is in possession of the car solely by virtue of being the driver of that car. State v. Toolen, 945 S.W.2d 629, 632 (Mo.App.E.D. 1997).
In Toolen, we found that the owner of the vehicle, Hertz, in renting the car to a person other than the defendant did not authorize the defendant to be the second driver of the vehicle. Id. As a result, we held the defendant in that case could not claim the search protections of the Fourth Amendment in relation to the search of the car he had been driving. Id. Similarly, in this case, Defendant's name was not on the car rental agreement. There is no evidence that the owner of the vehicle, Dollar Rent-A-Car, authorized Defendant to operate the vehicle. Thus, Defendant cannot challenge the search of the vehicle because she did not have a legitimate expectation of privacy in the trunk of the vehicle. Sub-point denied.
Therefore, we find the trial court did not err in denying Defendant's motion to suppress evidence obtained during Officer Knittel's search of the vehicle.
Based upon the foregoing, we affirm the judgment of the trial court. However, we transfer this case to the Missouri Supreme Court because of its general interest.
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