It’s one thing for the police to confiscate a package that reeks of marijuana, according to the California Supreme Court, but quite another to open that package without a warrant.

The court rejected the “novel legal theory” that police could search a closed container without a warrant solely because they think they smell contraband. The written ruling by Justice Goodwin Liu said that the accepted legal principle about seizing illegal material that is “in plain sight” is far different than ripping into packages because something is “in plain smell.”

In July 2010, a FedEx employee called the Santa Maria Police Department to report that a package dropped off for shipment to Illinois smelled like marijuana. The police took the package to the station, opened it and found 444 grams of pot. When Kewhan Robey showed up at the FedEx outlet three days later to inquire about his undelivered package, the police were called and he was arrested.

Robey was charged with possession of marijuana for sale and the Superior Court refused his lawyer’s attempt to suppress the evidence. That decision was appealed and the Court of Appeal agreed that the evidence should be suppressed.

“The fact that a sealed package smells of raw marijuana does not necessarily reveal that the package contains marijuana,” Justice Liu wrote, before citing cases where the police pursued arrests because they were certain they smelled marijuana, only to be proven wrong.

Perhaps more importantly, Justice Liu rejected the Santa Barbara County district attorney’s request not to suppress the evidence because the office did not raise the issue of smell tests in arguments to the appellate court.

The high court ruling did not offer a broad legal ruling about smell tests that could be automatically applied to other cases, because it was only asked for a narrow ruling on the case before it. Liu cited “conflict among the few courts that have addressed whether the smell of contraband can alone negate a reasonable expectation of privacy in a closed container.”

But the FedEx marijuana can no longer be presented at Robey’s trial.

–Ken Broder

To Learn More:

Police Need Warrant to Open Package that Reeks of Pot, Court Says (by Maura Dolan, Los Angeles Times)

Warrantless Search of FedEx Package Containing Marijuana Held Improper and Case Dismissed (Greg Hill & Associates)

Robey v. Superior Court of Santa Barbara (California Supreme Court) (pdf)