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Name: Robey v. Superior Court (People)
Case #: B231019
Court: CA Court of Appeal
District 2 DCA
Division: 6
Opinion Date: 10/24/2011
Subsequent History: 1/18/12 rev. granted (S197735)

The smell of marijuana alone does not justify the warrantless search of a package. Robey consigned a sealed package to FedEx with the use of a false name. Based on the package’s odor, FedEx withheld the package from the shipping process and contacted local law enforcement. Officers with training and experience in identifying the odor of marijuana seized and opened the package without obtaining a warrant. When Robey presented the shipping documents to FedEx to determine the location of the package, he was arrested for sale or transportation of marijuana and possession for sale. The denial of a motion to suppress resulted here in a writ of mandate ordering the evidence suppressed. If there is probable cause to believe a package consigned to a common carrier contains contraband, police are entitled to either search it immediately without a warrrant or to seize it and hold it until they obtain a warrant. Once the package was seized, a warrant was required because there were no exigent circumstances. Further, there is binding precedent that “plain smell” does not equate with “plain view” and odor alone does not justify a warrantless search. The opinion notes, “Our Supreme Court has not endorsed this view when probable cause is based on odor alone.” [Review has been granted.]