In Robey v. Superior Court of Santa Barbara County (2011), 2nd Appellate District, Div. 6, B231019, the following occurs:

It was a propitious moment for the FedEx employee who smelled Marijuana coming from a package to be shipped from Santa Maria to Illinois, until that package was seized by the authorities.   Officers at the police station -undoubtedly – confirmed its odor.   Wanting to get to the green leafy substance as soon as possible, the idea of a search warrant went up in a haze.   Why bother with the probable cause declaration and getting a magistrate to sign-off on a search warrant, when two officers can simultaneously open the package and find the 15 ounces of Marijuana?

Ultimately, Robey (who surprisingly used a false name with the shipper) got charged with Possession of Marijuana for Sale (§11359) and Transportation of Marijuana (§11360(a)).  He appears to have lost his §1538.5 Motion to Suppress Evidence partly on the basis of “plain smell,” an eagerly anticipated exception that isn’t yet a California exception to the warrant requirement.   A petition for a Writ of Mandate was therefore filed.

Regarding warrants, the following should be clear: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”  Amendment IV of the United States Constitution.

In this opinion, there are discussions regarding various carved out exceptions to the requirement that there can be no search and seizure absent a warrant, i.e., exigent circumstances, the automobile exception, inevitable discovery, etc., and the court concludes they are not applicable here.

For instance, “even when an officer lawfully seizes a package, the Fourth Amendment requires that in the absence of exigent circumstances, the officer obtain a warrant before examining the contents of the package.”  People v. Pereira (2007) 150 Cal. App. 4th1106, 1112.  In our case, there is absolutely no exigency or emergency associated with a package – which may (and did) contain Marijuana – sitting patiently at a police station.

More importantly, this court refuses to add ‘plain smell’ to the Fourth Amendment exceptions list.  After discussing several important appellate decisions, the court decides that California precedent rejects the notion that odor alone will justify a warrantless search.  ‘Plain View,’ however, which is an actual exception to the warrant requirement, will continue to own the score board.  “To smell it is not the same as to see it.”

Accordingly, since there wasn’t any other evidence to go with the odor of Marijuana other than it emanating from a FedEx package (i.e., Marijuana + 1 guest), the officers in this case were duty bound to get a warrant, which they failed to do.   The court therefore suppresses the Marijuana, and we should assume Robey – or at least his attorney – is celebrating somewhere.

This case should, in theory, result in fewer state based (California) Marijuana prosecutions.  It should be emphasized, however, that if the smell of marijuana was instead emanating from a package inside a vehicle (remember the automobile exception to the warrant requirement?), the opinion might read differently.

Article written by Adam Sostrin, a Criminal Defense Attorney in Los Angeles