Houman Fakhimi

California Supreme Court: Warrantless Search of Package Barred

The California Supreme Court unanimously ruled late last month that police can't search a private, parceled package without a warrant - even if the officer has a strong suspicion that illegal substances are contained therein, based on the odor.

Anaheim Drug Crimes Defense Attorney Houman Fakhimi recognizes the Robey v. Santa Barbara County case to be a victory for civil rights, as it upholds the Fourth Amendment clause barring unreasonable searches.

The ruling probably won't stop officers from ultimately being able to search private packages suspected of holding illegal contents, but it will ensure authorities will first have to obtain a warrant. Otherwise, they risk botching the entire case.

According to court records, this case started with a package that was dropped off at a private shipping firm branch located in Santa Barbara County. The package was destined for Illinois.

An employee at the shipping company took note of the fact that this particular package reeked of marijuana, which has a distinctive smell.

Marijuana is legal in California by state law under certain circumstances with a prescription. Delivery services do exist to provide the drug to patients in various areas of the state, particularly as storefront dispensaries have dwindled in the face of mounting federal crackdowns.

However, shipping through private carriers even in-state is inadvisable. Shipping it out-of-state is illegal and could land a person in federal prison.

So when a police officer arrived to investigate the employee's report, he confirmed the smell, seized the package, took it back to headquarters and a supervisor confirmed the smell as well. Authorization was given for narcotics detectives to open the package, finding, unsurprisingly, 444 grams of marijuana.

Several days later, when the sender of the package turned up at the shipping company to inquire about the delivery of the package, police were summoned and he was arrested. He was ultimately charged and convicted od possession of marijuana for sale and the sale or transportation of marijuana.

However, upon appeal, the issue was raised about whether police had the right to seize the package and whether they further had a right to search it.

On the first issue, the court ruled that the mobility of the container was enough to justify a warrantless seizure of the package. That is, had they not seized the package when they did, it would have been moved out-of-state, out of their jurisdiction and evidence could have potentially been lost.

However, on the second issue, the district attorney had attempted to argue that officers had conducted a "plain smell test" that allowed the authorization of a search without a warrant. The court rejected this theory.

It was based on the previously-established standard of the "plain sight test." That is, officers have a right to seize and search property without a warrant under limited circumstances. One of those is if the officer can see evidence of illegal activity or substances "in plain sight."

However, the court ruled that the plain sight test does not extend to the sense of smell. So in other words, had the package been a clear one and officers could see inside to its contents, they might have been able to justify a warrantless search. However, simply detecting an odor of an illegal substance was not enough to justify searching the property without a warrant.

As such, the case against the defendant fell apart. Because the police could not use the evidence obtained in the search, as the search was conducted illegally, the conviction had to be vacated.

It's worth noting that it would not have been difficult for these officers to obtain a warrant to search the package, had they taken the extra time and effort to do so. This is why you can't assume it's safe to ship illegal substances without fear that officers will find it - and you.

However, what it does underscore is the importance of assuring your rights are protected.

Contact Houman Fakhimi trial attorney at (714) 705-6701 as soon as possible if you are arrested in Anaheim.

Additional Resources

Police need warrant to open package that reeks of pot, court says, June 27, 2013, By Maura Dolan, Los Angeles Times.