This Second District CA Court of Appeals decision against “smell” as probable cause for warrantless search will have a far reaching effect in future prosecutions, particularly traffic stops.
Appeal Court Rejects ‘Plain Smell’ Theory in Pot Case
October 24, 2011
SAN FRANCISCO — A California appeal court on Monday tossed a pound of marijuana as evidence in a case where police had opened a shipped package that smelled strongly of pot.
“Was the warrantless search justified based on smell alone?” wrote Presiding Justice Arthur Gilbert of the Second District Court of Appeal in Ventura. “Not according to the California Supreme Court. To smell it is not the same as to see it.”
The court cited People v. Marshall, a split 1968 California Supreme Court decision that pitted Chief Justice Roger Traynor — who warned that even cops with the most acute sense of smell may be led astray by their noses, thus invading peoples’ privacy — against Justice Stanley Mosk, who argued that cops should be able to employ the sense of smell along with all the senses in determining probable cause.
The court of appeal wondered aloud on Monday about whether it’s time for the 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?” Gilbert wrote. “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.”
The case started when a FedEx employee smelled marijuana wafting from a package that was to be shipped from Santa Maria to Illinois. She called the cops, who seized the package as evidence, opened it back at the station and found about a pound of pot.
Kewhan Robey came into the Fed Ex office a few days later to ask why the package hadn’t shipped. The Fed Ex employee called the police, and they later arrested Robey.
The trial court 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 have inevitably been discovered.
But the appeal court disagreed.
The court acknowledged 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,” Gilbert wrote. “Our Supreme Court has not endorsed this view when probable cause is based on odor alone.”
The court granted Robey’s petition for a writ of mandate.
Justices Paul Coffee and Steven Perren concurred in the decision. The case is Robey v. Superior Court, B231019.
PDF file of decision text: http://www.courtinfo.ca.gov/opinions/documents/B231019.PDF