Hiding In Plain Smell

[Note: Subsequent to this post the Supreme Court granted review.  See "Supreme Court to Revisit 'Plain Smell' Doctrine," posted Jan. 29, 2012.]

The Second District Court of Appeal issued a peremptory writ in Robey v. Superior Court (Oct. 24, 2011, B231019), __ Cal.App.4th __ [2011 DJDAR 15551] directing the lower court to vacate its order denying the defendant's motion to suppress the results of a warrantless search of a package that emanated the smell of marijuana.

FedEx notified the police that a package was consigned for shipment that reeked of marijuana.  The police seized the package and took it to the station, where it continued to smell of marijuana, as recognized by two officers trained in identifying controlled substances.  They opened the package, which contained (surprise!) marijuana.  When the defendant showed up at FedEx, asking why his package had not been delivered, he was arrested.

The police should have obtained a warrant, said the court of appeal.  Although the odor gave them probable cause, there were no exigent circumstances justifying a warrantless search.  The court rejected the People's theory that the seizure was permissible under an extension of the "plain view" exception to the warrant requirement, concluding that it was bound by California Supreme Court precedent holding that "'[i]n plain smell,' ... is plainly not the equivalent of 'in plain view.'"

The court also rejected the argument that the discovery of the marijuana was inevitable because FedEx would have opened the package and turned over its contents to the police.  This theory, it said, was speculative, since it could not determine from the record whether the carrier would have opened the package, thrown it out or returned it to the defendant.  Finally, the court found that the defendant did not abandoned the package when he presented it to the shipper, since he had obtained a packing slip with a tracking number and even returned to FedEx to ask about the package.