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California Appeal Court Rejects 'Plain Smell' Theory in Pot Case
Robey
VS California Superior Court 2nd Appellate District Court Ruling
Return To OnlinePot's
Legal Section Main Page
Kate Moser
The Recorder
October 24, 2011
Robey_v_Superior_Court_2nd_Appellate_District_Ruling_October_2011.pdf
SAN FRANCISCO CA.” 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.
http://www.law.
com/jsp/ca/ PubArticleCA. jsp?id=120252004 1375
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