A California man allegedly tried to ship a package from California to Illinois through Federal Express in July 2010. A FedEx employee claims the package smelled of marijuana and called police to report the parcel. The man accused of trying to send the package was ultimately charged with serious California drug crimes, including possession of marijuana for sale and sale and transportation of marijuana, according to court records.

Police claim that when they were called to FedEx, the responding officer could smell marijuana and seized the parcel as evidence. The officer brought the package back to the police station and the narcotics unit apparently declined to investigate the matter. The officer and his supervisor decided to open the package without first seeking a judicially sanctioned warrant. They claim the package contained nearly a pound of marijuana.

The man accused of the drug crime sought to have the evidence thrown out of court. The Superior Court judge ruled against the defendant, reasoning that both the seizure and the warrantless search of the package were justified. Monday a California Appellate court overturned that ruling.

The Fourth Amendment prohibits law enforcement from conducting unreasonable searches and seizures. Sealed packages are no exception. While the Constitution generally requires police to get a warrant to conduct a search, some exceptions exist in specified circumstances.

The Second District Court of Appeal handed down a ruling Monday that says the prosecutors cannot use the evidence allegedly found in the package against the man at trial, because the warrantless search was not lawful. Without the evidence, the charges will likely be dismissed, unless the ruling is overturned on appeal to the California Supreme Court.

Prosecutors apparently argued in the appellate court that law enforcement was justified in searching the package on a "plain smell" theory. The argument is similar to the "plain view" theory that is an exception to the warrant requirement under certain circumstances, like during a traffic stop. Courts have ruled that police can seize contraband found in "plain view" if they are lawfully in a position to see the contraband.

The court said in Monday's ruling "to smell it is not the same as to see it." The California Supreme Court rejected a plain smell exception to the warrant requirement in a 1968 case. The Chief Justice at the time wrote that allowing a plain smell exception to the warrant requirement "would open the door to snooping and rummaging through personal effects. Even an acute sense of smell might mislead officers into fruitless invasions of privacy where no contraband is found."

Monday's appellate court ruling further noted that police had seized the package and taken it to the police station before opening it. The judges reasoned that law enforcement had time to get a warrant, but simply chose not to.

Prosecutors say that other jurisdictions have recognized that the smell of pot "is so obvious that it is the same as viewing it." The prosecutors reportedly intend to appeal the decision to the California Supreme Court.

Source: San Francisco Chronicle, "Pot: Take a whiff, but get a warrant," Bob Egelko, Oct. 24, 2011

Second Appellate District Court of Appeal, Robey v. Superior Court B231019, Oct. 24, 2011