STATE оf Missouri, Respondent, v. Allen Curtis HAWKINS, Appellant.
No. 56990.
Supreme Court of Missouri, Division No. 1.
June 12, 1972.
Rehearing Denied July 17, 1972.
477 S.W.2d 477
We rule that the trial court was not required to appoint counsel to develop a point which was not alleged in the motion but was mentioned in the attached memorandum brief. In that connection we think it appropriate to mention that our system of jurisprudence contemplates that there shоuld be some reasonable point when a judgment determining criminal responsibility should become final. It appears from information listed in defendant‘s motion that this is thе sixth proceeding that this court has considered which sought to attack defendant‘s conviction; that two motions have been filed by defendant in the Federal Distriсt Court; one in the U. S. Court of Appeals; and one in the U. S. Supreme Court. We observe that this defendant has been accorded every reasonable opportunity to attack the validity of his conviction and has exhausted those remedies.
We have considered other points raised in the pro se brief but find them to be without substance.
Judgment affirmed.
BARDGETT, J., and RUSSELL, Special Judge, concur.
SEILER, J., not sitting.
Richard S. Sundeen, Kansas City, for appellant.
HIGGINS, Commissioner.
Allen Curtis Hawkins was convicted by a jury of felonious possession of marijuana (Cannabis Sativa). The jury was unable to agree on defendant‘s punishment; the court assessed his punishment at two years’ imprisonment, and rendered judgment and sentence accordingly.
Appellant does not question the sufficiency of evidence to sustain his conviction; and the facts relative the single question on аppeal demonstrate also that the State made its case.
Appellant contends the court erred in overruling a motion to suppress as evidеnce the quantity of marijuana taken from his automobile at the time of his arrest. He argues that the seizure of marijuana was illegal because he first was arrеsted for a parking violation, he was outside his automobile when it was searched and, therefore, there was no reasonable basis for the search and seizure. For support, appellant cites State v. Witherspoon, Mo., 460 S.W.2d 281, dealing with an unconsented-to search of the locked trunk of an automobile.
The evidence bearing on the question shows an independent and reasonable basis for the search and seizure, and a situation in which the cited case has no application.
On August 26, 1970, at approximately 10 p. m., Allen Curtis Hawkins was operating his automobile on the streets of Kansas City, Jackson County, Missouri. He parked the vehicle near 1140 Forest and, as he left it, he was approached by Patrolmen James Conners and Clark Hamilton. He was cited by Officer Conners for parking too far from the curb in violаtion of a Kansas City ordinance. While being so cited, Officer Hamilton went to the front of the vehicle to obtain the Kansas City license number affixed by “sticker” to the windshield. Officer Hamilton shone his flashlight on the sticker and observed on the front seat of the vehicle a hand-rolled cigarette which he reasonably believеd to contain marijuana. “In past experience with narcotics in that area the only time I have run across a hand-rolled cigarette such as this with the sаme crimped edges and its size, the have—each time it contained marijuana and at no time has a cigarette such as that, that I have come across, contained tobacco, to my knowledge from the lab report.” Officer Hamilton further described the cigarette as being two to three times smaller in diаmeter than hand-rolled cigarettes containing tobacco. He had seen similar cigarettes on ten to fifteen other occasions. Prior to the аrrest for possession, he also recognized the presence of the odor of smoked marijuana.
On the basis of these observations, Officer Hamilton аrrested defendant for possession of marijuana. Search of the vehicle subsequent to the arrest produced the hand-rolled cigarette contаining marijuana, a package of Zig Zag cigarette papers, two pipes, ashes, and six hand-rolled cigarette butts found to contain traces of mаrijuana. Search of defendant‘s person subsequent to the arrest produced four packages of marijuana varying in weight from two and one-half grams to four and one-half grams.
With the evidence in this posture, seizure of the marijuana cigarette was permissible under the “plain view doctrine.” State v. Harre, Mo., 280 S.W.2d 41, 43; Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067. The marijuana cigarette was open to the plain view of Officer Hamilton as he stood outside defendant‘s automobile, and a search is not made when the officer simply lоoks at that which can be seen. Nor is the impact of the plain view doctrine altered by the officer‘s use of his flashlight to first inspect the windshield sticker. United States v. Callahan, D.C.Minn, 256 F. Supp. 739.
Thus, although defendant was first detained and cited (or arrested) for a traffic violation, there was no search of his vehicle until the marijuana cigarette had been observed on the seat of the vehicle. Defendant was then lawfully arrested for possession of marijuana; and the subsequent search of his person and autоmobile, during which the other items of evidence were found, was reasonable as an
Appellant also argues that Officer Hamilton was unjustified in his conclusion that the hand-rolled cigarette contained marijuana. His conclusion, however, is amply supported by the evidence of his prior experience with suсh cigarettes and in such cases.
Judgment affirmed.
WELBORN, C., concurs.
PER CURIAM:
The foregoing opinion by HIGGINS, C., is adopted as the opinion of the court.
HOLMAN, P. J., BARDGETT, J., and RUSSELL, Special Judge, concur.
SEILER, J., not sitting.
ON MOTION FOR REHEARING
PER CURIAM.
Appellant‘s motion for rehearing seeks the alternative relief of remand to the circuit court for assessment of punishment and rendition of judgment consistent with
Appellant‘s conviction of possession of marijuana occurred April 21, 1971, at a time when the first conviction of that offense was a felony regardless of the amount of marijuana involved.
While appellant‘s case was pending on appеal and before a final determination was made,
No error was committed during the trial of this cause and, therefore, there is nо occasion to set aside the verdict of guilty of the jury.
Appellant‘s motion for rehearing is overruled. Appellant‘s prayer for the alternative reliеf is sustained; the judgment is reversed and this cause is remanded for assessment of punishment and rendition of judgment consistent with