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5 Things You Want To Know If Police Find Your Marijuana Scented Package

Recently, the California State Supreme Court ruled that law enforcement officials can seize a package smelling of marijuana without first obtaining a warrant. However, a judge must sign off on a warrant in order for law enforcement personnel to search the contents of the package. If you ever find yourself in a situation where a police officer suspects that a package in your possession contains marijuana, here are 5 very important things that you should know:

1. The Sentencing For Marijuana Charges

The severity of the sentencing varies depending on which specific marijuana crime your are charged with. Also, having a prior drug related conviction can also elevate the severity of the sentencing. The intractable chart below illustrates the sentencing for different marijuana related charges. Place your mouse over each bar on the graph to reveal a brief explanation of each figure.

2. The Facts of Robey v. Superior Court of Santa Barbara County

On July 23, 2010, a FedEx employee contacted the Santa Maria Police Department (SMPD) to report a package smelling of marijuana that had been dropped off for shipment. Officer Totorica responded to the call and proceeded to seize the unopened package as evidence. After confirming the marijuana smell with his supervisor, narcotics agents at the SMPD opened the package to find 444 grams of marijuana. SMPD personnel did not seek a warrant for either the seizure or the search of the package.

Petitioner Kewhan Robey returned to the FedEx location three days later to inquire about the package. The FedEx employee who handled the initial transaction recognized him and contacted the SMPD. Robey was arrested and charged with possession of marijuana for sale and with the sale or transportation of marijuana (HS 11359, 11360).

3. The Questions Presented

The trial court denied Robey’s motion to suppress evidence. It ruled that “exigent circumstances” justified the seizure and that the subsequent search was valid under the inevitable discovery doctrine. This doctrine maintains that an otherwise unreasonable search is valid if it can be established by a preponderance of evidence that a normal police investigation would have inevitably led to the discovery of the evidence.

The California Court of Appeals did not decide whether the seizure of the package was constitutional, but held the following:

  • Exigent circumstances did not justify the search of the package;
  • The odor of the package alone cannot justify a warrantless search;
  • The inevitable discovery doctrine did not apply to the facts of this case; AND
  • Robey had not “abandoned” the package and therefore had standing to seek suppression of evidence.

The district attorney appealed the appellate court’s ruling and sought the California Supreme Court’s review on the following two issues:

  1. Did the package’s “mobility” constitute an exigent circumstance permitting a warrantless search?
  2. Did the plain smell of marijuana constitute an exception to the warrant requirement for a search?

4. The California Supreme Court’s Ruling and Rationale

The California Supreme Court first tackled the issue of whether the package’s “mobility” constituted an exigent circumstance permitting a warrantless search. In Chambers v. Maroney, 399 U.S. 42 (1970), the United States Supreme Court held that a warrantless search of an automobile is permissible so long as the police have probable cause to believe that the car contains evidence of contraband. In People v. McKinnon, 7 Cal. 3d 899 (1972), the California Supreme Court extended the Chambers rationale to all movable goods since “all goods or chattels consigned to a common carrier for shipment are no less movable than an automobile.”
Here, the California Supreme Court overturned its previous holding that the Chambers rationale could apply to any movable good. The Court argued that the rationale for an automobile to be searched without a warrant is “rooted in practical concerns unique to automobiles.” It also held that the rationale for allowing warrantless searches of containers found in automobiles is also specific to the automobile context. The court clarified that the analogy drawn in McKinnon between automobiles and packages can no longer be supported.

“The police could have gotten a warrant,” stated Robey’s attorney. “They did not get a warrant. There was nothing preventing them from getting a warrant.”

The California Supreme Court did not decide the issue of whether the smell of marijuana constitutes an exception to the warrant requirement for a search. The Court explained that the district attorney “forfeited” this argument by failing to raise it in opposition to Robey’s 1538.5 motion to suppress evidence in the superior court.

5. If you find yourself in this situation, Wallin & Klarich can fight for you

If you are facing criminal charges, it is imperative to have your rights adequately protected. If you feel that your rights have been violated, you need to contact an experienced criminal defense attorney immediately. At Wallin & Klarich, we have over 30 years of experience ensuring that our clients’ rights are protected at every stage of the legal process.

Our offices are located in Orange County, Los Angeles, San Diego, Riverside, West Covina, Torrance, Ventura, Sherman Oaks, San Bernardino, and Victorville. Give us a call today at (888) 280-6839 to inquire about your case. We will be there when you call.

About Wallin & Klarich

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Wallin & Klarich was established in 1981. Over the past 32 years, our law firm has helped tens of thousands of families in their time of legal need. Regardless of whether our clients faced criminal or DUI charges, the loss of their driving privilege, or wanted to clean up their criminal record, we have been there to help them.