A California court of appeal on Monday rejected a pound of marijuana as evidence in a case where police opened a shipped package they claimed smelled strongly of pot. If upheld on further appeal, the case could have far-reaching effects on future California prosecutions in which a “probable cause” search was based on smell alone.
“Was the warrantless search justified based on smell alone?” wrote Presiding Justice Arthur Gilbert of the Second District Court of Appeal in Ventura, reports Kate Moser at The Recorder.
“Not according to the California Supreme Court. To smell it is not the same as to see it.”
The court cited a split 1968 California Supreme Court decision, People v. Marshall, which pitted Chief Justice Roger Raynor — who said that cops can be led astray by their noses, thus invading peoples’ privacy — against Justice Stanley Mosk, who claimed that cops should be able to employ the sense of smell along with the other senses in determine probable cause.
Allowing such a smell-based search without a warrant “would open the door to snooping and rummaging through personal effects,” then-Chief Justice Raynor wrote at the time, reports SF Gate
. “Even an acute sense of smell might mislead officers into fruitless invasions of privacy where on contraband is found.”
Prosecutors in Robey’s case argued that subsequent rulings had effectively overturned that 1968 decision and legalized “plain smell” searches, but the appeals court disagreed, nothing that once police had taken the package to the station, they had time to seek a warrant but had simply decided not to do so.
The judge wondered aloud on Monday whether it’s time for the state’s high court to revisit that split decision.
“Does the passage of 43 years since Marshall was decided warrant (pardon the expression) reconsideration of Mosk’s view?” Justice Gilbert wrote in his decision. “Perhaps not. Courts require an experienced peace officer’s testimony to establish the presence of marijuana through its odor. … We wisely do not speculate whether marijuana’s alleged pungent odor is familiar to a larger segment of the population today than it was in 1968.”
It all started when an employee at FedEx noticed the smell of cannabis coming from a package that was supposed to be shipped from Santa Maria to Illinois. She called the police, who seized the package as evidence, opened it back at the station and found about a pound of marijuana.
When shipper Kewhan Robey of Santa Barbara County came into the FedEx office a few days later to ask why his damn package hadn’t shipped, the snitching FedEx employee called the cops, who later arrested Robey.
The trial court had denied Robey’s motion to suppress the evidence, holding that exigent circumstances justified the seizure, and that the search was justified by the fact that the pot would inevitably have been discovered.
The appeal court, however, disagreed, even while acknowledging the logic of the government’s argument that there’s no difference between something that is apparent to the sense of smell and something that is apparent to the sense of sight.
“But we cannot hold the seizure proper,” Judge Gilbert wrote. “Our Supreme Court has not endorsed this view when probable cause is based on odor alone.”
The court then granted Robey’s petition for a write of mandate. Justices Paul Coffee and Steven Perren concurred in the decision in Robey v. Superior Court, B231019.