Evidence is anything presented to the senses. Undoubtedly most officers have been trained on the plain smell rule. Much like the plain view rule, anything you smell is not a search and not a violation if you have the legal right to be where you are. The question presented in People v. Robey, 2011 DJDAR 15551, is what to do with a package, shipped through a common carrier, once you have probable cause to believe it contains a controlled substance.
FedEx ASKED TO SHIP MJ
A FedEx employee smelled the odor of marijuana coming from a package being shipped from Santa Maria, CA to Illinois. Following company protocol, she withheld shipping the package and called police.
A Santa Maria officer arrived and could smell the distinct odor of marijuana when he walked into the FedEx office. As he approached the package, the odor got stronger. Told that FedEx would not ship the package, the officer seized the package. The officer took the package back to the station where his supervisor, a lieutenant, also smelled the package. Both officers had significant narcotics training and experience. The officers then opened the package and discovered approximately 15 ounces of marijuana.
A couple of days later, Mr. Robey brought the shipping slip for the box back to FedEx and asked why the box had not been shipped. The employee called the officer who then arrested Robey for possession and transportation of marijuana for sale. Robey moved to suppress the evidence of marijuana. The trial court upheld the search.
PROBLEM?
First, letters and sealed packages are entitled to Fourth Amendment Protection. As that is the case, officers must have probable cause and obtain a warrant before the search is made.
Second, there are exceptions, of course, to the warrant requirement, such as exigent circumstances or inevitable discovery. Here, the trial court upheld the warrantless search of the package pursuant to inevitable discovery doctrine. The defendant appealed.
PROBLEM? YES.
The California Supreme Court in People v. McKinnon (1972) 7 Cal.3d 899, 909,
held that when police have probable cause to believe that a package consigned to a common carrier contains contraband, police are entitled to either search it immediately without a warrant or hold it until they obtain a search warrant.
In this instance, the officer seized the package. So far, so good. But when the officer took the closed package back to the station without opening it, he was required to obtain a search warrant to search the package. Because that didn’t happen, the Appellate Court here suppressed the evidence.
TREND
In another decision, People v. Pereira (2007) 150 Cal.App.4th 1106, defendant mailed a package via a private shipping company. An employee became suspicious of the package, opened the box and found a teddy bear with abnormal stitching. The employee called police. Officers arrived a few hours later and cut into the bear and found marijuana. In that case, the court found there were no exigent circumstances to justify the warrantless search and suppressed the evidence.
PLAIN SMELL?
When you, as a trained officer, smell the odor of contraband coming from a package or location, that smell creates probable cause to get a warrant. Plain smell does not justify a warrantless search. Plain smell is not the equivalent of plain view.
CONCLUSION
There may be a temptation to read the above and conclude it is fine to search a closed container when a shipping company calls and you smell the odor of narcotics. DON’T! Get a warrant. The law in this area is trending towards eliminating the ability to immediately open the package when you receive it from the common carrier. Take the extra time to get a search warrant. You won’t regret it.
