To smell is not the same as to see. At least that’s what a California court of appeal recently concluded when it rejected the validity of a warrantless search of a Fed Ex package based on the smell of marijuana alone.
The basic requirement under the Fourth Amendment that police secure a warrant before conducting a search (Maryland v Dyson (1999) 527 US 465, 466, 119 S Ct 2013, 144 L Ed 2d 442) is subject to exceptions. For example, there’s an exception for exigent circumstances. There’s also an exception called the “plain view” doctrine.
Under the “plain view” doctrine, the police can make a warrantless search of an object that is in the officer’s plain view if (Horton v California (1990) 496 US 128, 136, 110 S Ct 2301, 110 L Ed 2d 112)
- The officers made their observations from a place where they had a right to be,
- The incriminating character of the objects was “immediately apparent,” and
- The officers had “a lawful right of access to the object itself.”
In the court of appeal case involving the reeking Fed Ex package, Robey v Superior Court (Oct. 24, 2011, B231019), 2011 Cal App Lexis 1325 (.pdf), there was no applicable exception to the warrant requirement — there was no exigency and the marijuana was concealed in the package — so the question came down to whether there should be an exception for “plain smell,” i.e., should a warrantless search be justified based on smell alone?
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, the court of appeal nonetheless balked at creating a “plain smell” exception.
There is some authority for a smell test in a related context. Under Pen C §836(3), which authorizes an arrest without a warrant whenever an officer “has reasonable cause to believe that the person to be arrested has committed a felony,” the officer can “rely upon all of his senses,” including the sense of smell, in determining whether such cause exists. People v Marshall (1968) 69 C2d 51, 69 CR 585. The supreme court also held that the odor of contraband creates probable cause to seek a search warrant.
But the supreme court has yet to find that smell alone may justify a warrantless search. Until it does, police officers cannot follow their noses; rather, they must follow the law and get a warrant.
For everything you need to know about warrantless searches, turn to CEB’s California Judges Benchbook: Search and Seizure Book, chap 5. On seeking to exclude evidence through a search and seizure motion, check out the “crim law bible,” CEB’s California Criminal Law Procedure and Practice, chap 16.
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