Santa Barbara County, Super. Ct. No. 1349412, Ct.App. 2/6 B231019, Judge Edward H. Bullard
Original Appeal Original Proceeding Review Granted XXX 200 Cal.App.4th 1
Raimundo Montes De Oca, Public Defender, and Patricia Dark, Deputy Public Defender, for Petitioner.
Stephen P. Lipson, Public Defender (Ventura) and Michael C. McMahon, Chief Deputy Public Defender, for California Public Defenders Association and Public Defenders of Ventura County as Amici Curiae on behalf of Petitioner.
No appearance of Respondent.
Joyce E. Dudley, District Attorney, and Michael J. Carrozzo, Deputy District Attorney, for Real Party in Interest.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, James William Bilderback II and Thomas C. Hsieh, Deputy Attorneys General, as Amici Curiae on behalf of Real Party in Interest.
Counsel who argued in Supreme Court (not intended for publication with opinion): Patricia Dark Deputy Public Defender, Michael J. Carrozzo, Deputy District Attorney
Petitioner Kewhan Robey was arrested and charged with possession of marijuana for sale and with the sale or transportation of marijuana after police seized a package from a private shipping company and discovered the drug inside. The superior court denied petitioner’s motion to suppress evidence, relying on exigent circumstances and inevitable discovery. The Court of Appeal granted Robey’s petition for writ of mandate and ordered the superior court to grant the motion to suppress. The Office of the Santa Barbara County District Attorney, as real party in interest, sought this court’s review on two issues: (1) whether a police officer may conduct a warrantless search of a package seized from a common carrier based on the exigent circumstance of the container’s mobility, and (2) whether a police officer can conduct a warrantless search based on the “plain smell” of contraband.
On the first issue, we hold that although a container’s mobility may constitute exigent circumstances sufficient to justify a warrantless seizure, it cannot alone justify a search of the container once it has been seized. On the second issue, we find that the District Attorney forfeited the plain smell argument by failing to raise it in opposition to petitioner’s motion to suppress in the superior court. Because the District Attorney presents no other grounds to justify the search of the container, petitioner’s motion to suppress should be granted as to the evidence obtained as a result of the warrantless search.
On July 23, 2010, FedEx employee Nancy Her contacted the Santa Maria Police Department to report that a package smelling of marijuana had been dropped off for shipment to an Illinois address. Officer Nathan Totorica responded. As he entered the store and walked toward the package, Officer Totorica smelled the odor of marijuana, which got stronger as he approached the package. Nancy Her informed Officer Totorica that FedEx could not deliver the package and asked what she should do with it.
Officer Totorica seized the unopened and sealed box as evidence and took it to the police station. At the station, he contacted his supervisor, Lieutenant Jerel Haley, who also concluded that the box smelled of marijuana. The officers conferred with the narcotics unit and then opened the box. Inside they found 444 grams of marijuana. The officers did not seek a warrant for either the seizure or subsequent search of the container.
Three days later, petitioner Robey arrived at the same FedEx location to inquire about an undelivered package. Her recognized petitioner as the man who had delivered the box seized by the police, and she telephoned Officer Totorica. Officer Totorica returned to the store and arrested petitioner, who was carrying a packing slip for the seized package.
Petitioner was charged with possession of marijuana for sale and with the sale or transportation of marijuana. (Health & Saf. Code, §§ 11359, 11360, subd. (a).) The superior court denied petitioner’s motion to suppress evidence, finding that exigent circumstances justified the seizure and that the subsequent search was valid under the inevitable discovery doctrine, presumably because the police had sufficient probable cause to obtain a warrant had one been sought.
Petitioner then sought a writ of mandate in the Court of Appeal, which in turn issued an order to show cause to the superior court. The Court of Appeal, on its own initiative, asked the parties to provide an informal response to several questions, including whether the plain smell of marijuana, by itself, would have allowed the search and seizure of the package without a warrant. After briefing and argument by the parties, the Court of Appeal granted the petition and issued a peremptory writ of mandate directing the trial court to grant petitioner’s motion to suppress evidence. Without deciding whether the officer was entitled to seize the package, the Court of Appeal held (1) that exigent circumstances did not justify the subsequent search of the container, (2) that the odor of contraband alone cannot justify a warrantless search, (3) that the inevitable discovery doctrine did not apply to the facts here, and (4) that petitioner had not abandoned the package and therefore had “standing” to seek suppression of the evidence.
The District Attorney sought review in this court on two issues: whether the mobility of the package constituted an exigent circumstance permitting the officers to conduct a warrantless search after the package was already seized, and whether the plain smell of marijuana constitutes an exception to the warrant requirement. We granted review.
“Our review of issues related to the suppression of evidence seized by the police is governed by federal constitutional standards.” (People v. Lenart (2004) 32 Cal.4th 1107, 1118; see Cal. Const., art. I, § 28, subd. (f)(2).) “In reviewing a trial court’s ruling on a motion to suppress evidence, we defer to that court’s factual findings, express or implied, if they are supported by substantial evidence. [Citation.] We exercise our independent judgment in determining whether, on the facts presented, the search or seizure was reasonable under the Fourth Amendment.” (Lenart, at p. 1119.)
“The touchstone of Fourth Amendment analysis is whether a person has a ‘constitutionally protected reasonable expectation of privacy.’ ” (California v. Ciraolo (1986) 476 U.S. 207, 211, quoting Katz v. United States (1967) 389 U.S. 347, 360 (conc. opn. by Harlan, J.).) “What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. [Citation.] But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.” (Katz, at pp. 351–352 (maj. opn.).) “The Fourth Amendment proscribes all unreasonable searches and seizures, and it is a cardinal principle that ‘searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.’ [(Katz, at p. 357).]” (Mincey v. Arizona (1978) 437 U.S. 385, 390.) It is well established that the Fourth Amendment’s protection extends to letters and other sealed packages in shipment. (See, e.g., United States v. Jacobsen (1984) 466 U.S. 109, 114 (Jacobsen); United States v. Van Leeuwen (1970) 397 U.S. 249, 251–252; Ex parte Jackson (1877) 96 U.S. 727, 733.)
As an initial matter, the District Attorney says petitioner abandoned his interest in the package by using a false name and address when he shipped it. But this argument is unavailing because the District Attorney, at the suppression hearing, accepted petitioner’s offer of proof to establish a privacy interest in the container, a concession inconsistent with the District Attorney’s later claim of abandonment. In addition, the District Attorney did not enter the packing slip into evidence or create any other record of a false name or address to support a claim of abandonment in response to defense counsel’s claim that petitioner showed he continued to have an interest in the package by checking on its delivery after leaving it for shipment. (See People v. Pereira (2007) 150 Cal.App.4th 1106, 1113–1114 [upholding trial court’s finding that defendant did not abandon package despite using false name and return address because other evidence showed defendant “ ‘really care[d] about it getting delivered’ ”].)
As to the first issue on which we granted review, the District Attorney contends that petitioner’s motion to suppress should be denied because the warrantless seizure and subsequent search of the container in this case were justified by exigent circumstances arising from the container’s mobility. Here petitioner contests only the search, not the seizure, of the container. As explained below, we conclude that although the mobility of a package in shipment may constitute an exigent circumstance permitting officers to seize it without a warrant, such mobility cannot alone justify a warrantless search of the package after it has been seized.
The District Attorney argues that “[o]nce the package was seized, law enforcement had the right to open the package based on the exigent circumstances that existed at the time of the seizure.” For this proposition, the District Attorney relies principally on People v. McKinnon (1972) 7 Cal.3d 899 (McKinnon). The defendant in McKinnon brought five cartons to an airline freight counter for shipment, describing their contents as “personal effects.” After the defendant left, an airline employee suspected that the cartons contained contraband and, upon opening one of the cartons, found several brick-shaped packages inside. The employee, believing he had discovered marijuana in one of the packages, telephoned the police. When the officer arrived, the carton remained open, and the officer could see the same brick-shaped packages. The officer “formed the opinion that the substance in the packages was marijuana. He proceeded to open one of the packages, and verified its contents.” (Id. at p. 903.)
This court, by a four-to-three majority, upheld the warrantless search and, in so doing, overruled a pair of four-to-three decisions issued three years earlier holding that when containers consigned for shipment are safely in the carrier’s custody, there is no exigent circumstance justifying a warrantless search. (McKinnon, supra, 7 Cal.3d at p. 910, overruling People v. McGrew (1969) 1 Cal.3d 404 (McGrew) and Abt v. Superior Court (1969) 1 Cal.3d 418 (Abt).) The basis for the overruling, McKinnon said, was that the intervening high court decision in Chambers v. Maroney (1970) 399 U.S. 42 (Chambers) “undermine[d] the foundation of the majority opinions in McGrew and Abt.” (McKinnon, at p. 910.)
In Chambers, the high court held that where police have probable cause to stop and search a car without a warrant, a subsequent search of the car after it has been driven to a police station is also permissible without a warrant. (Chambers, supra, 399 U.S. at pp. 51–52.) Chambers observed that the high court had long adhered to the rule that a warrantless search of an automobile is permissible so long as the police have probable cause to believe the car contains evidence or contraband. (Id. at p. 48, citing Carroll v. United States (1925) 267 U.S. 132 (Carroll).) This exception to the warrant requirement, Chambers said, is justified by the ease with which an automobile might be moved out of the jurisdiction before a warrant can be obtained. (Chambers, at pp. 48, 51.) Although Chambers recognized that the problem of mobility might be solved by first seizing the car and then seeking a search warrant, the high court declined to adopt such a rule: “For constitutional purposes, we see no difference between on the one hand seizing and holding a car before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrant. Given probable cause to search, either course is reasonable under the Fourth Amendment. [¶]... The probable-cause factor still obtained at the station house and so did the mobility of the car unless the Fourth Amendment permits a warrantless seizure of the car and the denial of its use to anyone until a warrant is secured. In that event there is little to choose in terms of practical consequences between an immediate search without a warrant and the car’s immobilization until a warrant is obtained.” (Id. at p. 52.)
The court in McKinnon said “the rationale of Chambers” is not “limited to searches of automobiles and similar self-propelled ‘vehicles’ such as trucks, trains, boats, or airplanes.” (McKinnon, supra, 7 Cal.3d at p. 908.) McKinnon stated: “[W]henever [a container] is consigned to a common carrier, there can be no doubt that it is intended, in fact, to be moved.” (Id. at p. 909.) Because “all goods or chattels consigned to a common carrier for shipment” are “no less movable than an automobile, ” the court said, “the reasons for the rule permitting a warrantless search of a vehicle upon probable cause are equally applicable to the search of such a chattel.” (Ibid.) The court assigned “no constitutional relevance” to the fact that the cartons were already in the carrier’s safe custody: “In Chambers the defendants’ automobile was seized by police officers and impounded at the police station; if the high court can say, as it does, that under those circumstances ‘the mobility of the car’ still obtained at the station house [citation], a fortiori a chattel such as here involved remains ‘mobile’ in the constitutional sense despite its limited and voluntary bailment to a common carrier.” (McKinnon, at p. 910.) McKinnon thus held that “when the police have probable cause to believe a chattel consigned to a common carrier contains contraband, they must be entitled either (1) to search it without a warrant or (2) to ‘seize’ and hold it until they can obtain a warrant; absent these remedies, the chattel will be shipped out of the jurisdiction or claimed by its owner or by the consignee.” (Id. at p. 909.)
Three justices dissented in an opinion by Justice Peters. While acknowledging that the court was “bound” by Chambers, Justice Peters said “Chambers, however, does not purport to apply to everything that is not nailed down or affixed to realty. The Supreme Court’s opinion is closely tied to a long series of cases involving one and only one form of movable object — that which is used as a vehicle to transport goods from one place to another.” (McKinnon, supra, 7 Cal.3d at p. 920 (dis. opn. by Peters, J.).) Responding to the court’s assertion that a container consigned for shipment “remains ‘mobile’ in the constitutional sense despite its limited and voluntary bailment to a common carrier” (id. at p. 910), Justice Peters said: “Indeed, chattels will retain their movable character anywhere, whether within a depot, dwelling house, or concrete vault as well as an airport, unless they are affixed to realty or otherwise rendered nonmovable. The point is not that the chattels here involved were within the custody of the airlines, but that they were not in a vehicle capable of moving them beyond the jurisdiction on its own power; i.e., they had not entered the course of transportation. Drawing a line at goods physically aboard a carrier at least has the virtue of certainty. This is the line drawn by the United States Supreme Court in case after case. If all things movable could be searched without a warrant if there were probable cause to believe they contained evidence or contraband, the Fourth Amendment would be rendered nugatory, and in effect the search without a warrant would become the rule rather than the exception.” (Id. at p. 923 (dis. opn. by Peters, J.).)
The central premise of McKinnon — the reason it gave for overruling McGrew and Abt — is that the high court’s decision in Chambers, though involving an automobile search, stands for the broader principle that not only cars but also “ ‘other things readily moved’ ” are subject to warrantless search upon probable cause. (McKinnon, supra, 7 Cal.3d at p. 909, italics omitted.) Indeed, the McKinnon court appeared to treat automobiles as simply one kind of movable container: “To be sure, [a box consigned for shipment] has neither wheels nor motive power; but these features of an automobile are legally relevant only insofar as they make it movable despite its dimensions. A box, which is a fraction of the size and weight of an automobile, is movable without such appurtenances.” (Id. at p. 909.) According to McKinnon, a package consigned for shipment falls under the same rule as an automobile: its mobility renders it subject to a warrantless search either on the spot or at the station house.
However, during the more than four decades since Chambers was decided, the high court has never extended the rationale of that decision in the manner that McKinnon did. To the contrary, as we explain below, subsequent cases treat Chambers as part of line of authority specifically addressing automobile searches, and the high court has repeatedly held that a movable container suspected to hold evidence or contraband is subject to a warrantless search if the container is located inside an automobile. Outside the context of an automobile search, the high court has not applied the rationale of Chambers, Carroll, or any other authority to hold that the mobility of a container by itself constitutes an exigent circumstance justifying a warrantless search. Instead, the settled rule is that “[e]ven when government agents may lawfully seize such a package to prevent loss or destruction of suspected contraband, the Fourth Amendment requires that they obtain a warrant before examining the contents of such a package.” (Jacobsen, supra, 466 U.S. at p. 114.) The development of the law since McKinnon undermines its reliance on Chambers as a basis for extending the well-delineated automobile exception to “all goods or chattels consigned to a common carrier for shipment.” (McKinnon, at p. 909.)
Seven years after Chambers, the high court decided United States v. Chadwick (1977) 433 U.S. 1 (Chadwick), which considered the warrantless search of a container seized from an automobile. In Chadwick, federal agents learned of two passengers transporting a suspicious footlocker by rail and met the train at its destination along with a police dog trained to detect marijuana. Without alerting the suspects, the dog signaled the presence of drugs in the footlocker. The officers continued to observe the suspects as they loaded the footlocker into the trunk of a waiting automobile. At that point, before the car engine was started, the officers arrested the men and seized the footlocker, transporting it to the station house. There the officers opened the locked footlocker without a warrant and discovered marijuana inside. (See id. at pp. 3–5.)
Although the footlocker was seized from an automobile, the high court held that the automobile exception did not apply. (Chadwick, supra, 433 U.S. at pp. 11–13.) The court explained that the “footlocker’s mobility [does not] justify dispensing with the added protections of the Warrant Clause. Once the federal agents had seized it at the railroad station and had safely transferred it to the Boston Federal Building under their exclusive control, there was not the slightest danger that the footlocker or its contents could have been removed before a valid search warrant could be obtained. The initial seizure and detention of the footlocker, the validity of which respondents do not contest, were sufficient to guard against any risk that evidence might be lost. With the footlocker safely immobilized, it was unreasonable to undertake the additional and greater intrusion of a search without a warrant.” (Id. at p. 13, fn. omitted.)
Relying on “the rationale of [the high court’s] automobile search cases, ” the government argued that “luggage [is] analogous to motor vehicles for Fourth Amendment purposes.” (Chadwick, supra, 433 U.S. at pp. 11–12.) The high court acknowledged the automobile search cases, including Chambers, but then rejected the analogy on several grounds. Whereas a footlocker may be “safely immobilized” upon seizure, “[t]his may often not be the case when automobiles are seized. Absolutely secure storage facilities may not be available, [citation], and the size and inherent mobility of a vehicle make it susceptible to theft or intrusion by vandals.” (Id. at p. 13 & fn. 7.) Moreover, even where “ ‘the possibilities of the vehicle’s being removed or evidence in it destroyed [are] remote, if not nonexistent, ’ ” a warrantless search is justified by “the diminished expectation of privacy which surrounds the automobile.” (Id. at p. 12.) A person has a diminished expectation of privacy in an automobile because “ ‘its function is transportation[, ]... it seldom serves as one’s residence or as the repository of personal effects[, ] [i]t travels public thoroughfares where both its occupants and its contents are in plain view’ ” (id. at p. 12), and both vehicles and drivers are subject to extensive regulation by states and localities (id. at p. 13). By contrast, “a person’s expectations of privacy in personal luggage are substantially greater than in an automobile.” (Id. at p. 13.) Finally, “[i]t was the greatly reduced expectation of privacy in the automobile, coupled with the transportation function of the vehicle, which made the Court in Chambers unwilling to decide whether an ...