Edward H. Bullard, Judge Superior Court County of Santa Barbara (Super. Ct. No. 1349412)
The opinion of the court was delivered by: Gilbert, P.J.
CERTIFIED FOR PUBLICATION
Petitioner Kewhan Robey consigned a sealed package to a common carrier for shipment. The package reeked of marijuana. The carrier notified the police, who seized the package and later opened it at the police station. The police did not seek a warrant even though no exigent circumstances existed at the time of the search.
Was the warrantless search justified based on smell alone? Not according to the California Supreme Court. (Guidi v. Superior Court (1973) 10 Cal.3d 1; People v. Marshall (1968) 69 Cal.2d 51.) To smell it is not the same as to see it.
The trial court erred in denying Robey's motion to suppress evidence of the marijuana. We grant his petition for writ of mandate.
On Friday afternoon, July 23, 2010, Federal Express ("FedEx") employee Nancy Her smelled the odor of marijuana emanating from a package received for shipment from Santa Maria to Illinois. She followed company protocol; she withheld the package from the shipping line and telephoned the Santa Maria Police Department. Officer Nathan Totorica responded. When Totorica walked into the FedEx office, he smelled the distinct odor of marijuana. As he approached the counter where the box was located, the odor became stronger. Her told Totorica that FedEx "could not deliver the package" and asked what he wanted done with it. Totorica seized the unopened box "as evidence."
Totorica took the package to the police station, where his supervisor, Lieutenant Jerel Haley, also noted the strong odor of marijuana. Both officers have significant training and experience in identifying controlled substances, including the odor of marijuana. When the narcotics unit declined to investigate, Totorica and Haley opened the package, which contained 444 grams (approximately 15 ounces) of marijuana. The officers did not seek a search warrant.
A few days later, Robey brought the packing slip for the box back to FedEx and asked why it had not been delivered. Her telephoned Totorica, who subsequently arrested Robey. The slip confirmed that Robey had used a false name.
Robey is charged with possession of marijuana for sale (Health & Saf. Code, § 11359) and sale or transportation of marijuana (id., § 11360, subd. (a)). The trial court denied his motion to suppress evidence of the marijuana. The court held that exigent circumstances justified the seizure of the package and that the inevitable discovery doctrine justified the search. Robey petitioned for a writ of mandate directing the trial court to grant the motion. We issued an order to show cause.
The Fourth Amendment of the United States Constitution prohibits unreasonable searches and seizures of a person's effects. (Chambers v. Maroney (1970) 399 U.S. 42, 51.) Letters and sealed packages are among the personal effects entitled to Fourth Amendment protection. (United States v. Jacobsen (1984) 466 U.S. 109, 114.) Subject to certain exceptions, police must have probable cause to search items protected by the Fourth Amendment and must obtain a warrant before the search is made. (Chambers, at p. 51.)
One such exception applies to automobiles. When probable cause exists to search an automobile, it may be searched with or without a warrant due to its mobility. (Chambers v. Maroney, supra, 399 U.S. at p. 52.) In People v. McKinnon (1972) 7 Cal.3d 899, 909, our Supreme Court expanded this exception to permit the warrantless seizure of goods or chattels consigned to a common carrier for shipment. The court held that when the police have probable cause to believe that a package consigned to a common carrier contains contraband, they are entitled either to ...