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The Reek of Reefer Alone Does Not Justify Warrantless Search

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, 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.

© The Regents of the University of California, 2011. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

8 Responses

  1. I think it is important to note that when dogs trained to smell drugs indicate a package has drugs in it, some courts have held that the dog’s alert justifies a warrantless search. Also, border crossings, airports, and cars offer much less protection from a warrantless search. It is also important to note that if FedEx, as a private comany, wanted to open a package, they are free to do so and turn over evidence to the police.

    I also know that destruction of evidence – a warrant exception – has been found by some courts because burning marijuana destroys the evidence.

    I just wanted to note that this holding is contrary to many others as well as a recent Supreme Court case. Of course, states can offer their citizens greater protections under the 4th Amendment, as this court did for California.

  2. Another iffy decision by a California court. While no one can compare the olfactory senses of a dog to those of a trained officer, if the officer notices the package smells like marijuana, I don’t see why a warrant less search is improper.

    As part of full disclosure, I am a former assistant state’s attorney.

    • With all due respect, a warrantless search is presumptively unconstitutional. If there is probable cause, then police can get a warrant. Not to mention the 50 million exceptions and exemptions already!

      And I work for the DEA, and maybe it’s because I think it is soooo easy to get a warrant that not getting one is just asking for trouble. We all know that arresting and prosecuting drug offenders is easy enough due to the volume of offenders – shortcuts are unacceptable.

  3. Worth noting on this topic is the recent U.S. Supreme Court ruling in Kentucky v. King (2011) in which the court said that the police can break into a person’s HOME — without a warrant — on the basis of the smell of marijuana. That’s a bridge too far, in my opinion, but that’s our good old Supreme Court for ya. (Shockingly, it was an 8-1 decision, with only Justice Ginsburg dissenting.)

    The Fourth Amendment has effectively been abolished, dying a death by a thousand cuts.

    • Exactly – that’s why it’s critical for the states to use their 4th amendment equivalents to reject the Supreme Court’s constant (though oddly inconsistent) list of exceptions and exemptions to the 4th Amendment. I think everyone agrees that if a cop hears someone calling for help, or if there’s a fire, that a warrant is not needed – it’s common sense in those situations because the goal is not a search or seizure – the 4th Amendment is in my opinion the most explicit and easy to understand and really the best written of all of the Amendments. “Thr right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures shall not be violated; and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or property to be seized.”

      • Well said, Dave, and I agree with you. Sadly, however, the voters of California have seen fit to do away with any independent (state-level) application of the 4th Amendment. That is, criminal defendants are not allowed any procedural rights (including suppression-of-evidence remedies) beyond what is required by the U.S. Constitution. (Proposition 8, passed in June 1982, and Prop. 115, passed in June 1990)

        And of course, given that the U.S. Supreme Court has (as we’ve seen) a tendency to allow the police extremely broad latitude in how they conduct themselves, the result has been a very constrained application of 4th Amendment protections in otherwise-liberal California.

        The most recent example — and a rather egregious one — is People v. Diaz (S166600 [Jan, 2011]), where the Calif. Supreme Court said it was okay for the police to examine the data on an arrestee’s cell phone as a “search incident to arrest”. Thus if a person is arrested, the police can now rummage through every text message, every address and phone number, every email message, and every website visited on a person’s cell phone simply by virtue of that person’s arrest.

        Even the legislature thought that was too much. They passed a law reversing the court’s decision, but it was vetoed by Gov. Brown.

        So while Mr. Gettler correctly says it’s critical for the states to exercise their own search-and-seizure jurisprudence to protect the right of the people to be free from unreasonable searches, I regret to say that California is one state that DOES NOT HAVE its own separate protections against such intrusions on our privacy and liberty. California residents (and visitors) only get those limited protections that the U.S. Supreme Court sees fit to allow us.

  4. […] The Reek of Reefer Alone Does Not Justify Warrantless Search […]

  5. […] The Reek of Reefer Alone Does Not Justify Warrantless Search […]

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