Warrantless Search of FedEx Package Improper; Case Dismissed

Kewhan Robey put 450 grams of marijuana in a FedEx box and attempted to mail it from California to Illinois.  A FedEx employee noticed “a strong odor” of marijuana, however, held the package back and called the Santa Maria Police Department.
Brief of Article:  Warrantless Search of FedEx Package Containing Marijuana Held Improper and Case Is Dismissed.
Officer Nathan Totorica then came to the FedEx office.  According to Totorica, the moment he walked into the FedEx office, he noticed the smell of marijuana.  As he walked closer to the package, he testified, the smell strengthened.  He then smelled other areas around the package, ultimately agreeing with the FedEx employee that the odor certainly was from something inside the package.

Totorica then seized the package, “as evidence” he said.  He then took the package to the police station and opened it up without a search warrant. 
   
A few days later, Robey went to the FedEx office with his packing slip to ask why his package had not been delivered.  The FedEx employee then telephoned Totorica, who came to the office and arrested Robey.  It was later determined that Robey had used a false name on the packing slip.

Robey was then prosecuted for violation of California Health and Safety Code § 11379 for possession for sale and transportation of marijuana.  It is worth noting that since this case was ruled upon, § 11379 has been amended by the legislature to require a showing that the transportation was with the intent to make a sale.  In this case, heard before the amendment, this requirement may not have been proven.

Robey filed a motion to suppress (under Penal Code § 1538.5) the evidence of marijuana, alleging that the police should have secured a search warrant before opening the FedEx package, as there was no exigent circumstances justifying such an immediate opening, which was a search.  The trial court denied the motion, saying that exigent circumstances did exist and the inevitable discovery doctrine supported the warrantless search.

Before the case proceeded further, Robey filed a petition for writ of mandate, asking the appellate court to direct the trial court to grant the motion.

The Second Appellate District, in Robey v. Superior Court (2011 DJDAR 15551), agreed with Robey.  In finding the trial court erred, the appellate court noted that in California Supreme Court case, People v. McKinnon (1972) 7 Cal.3d 899, the officer was allowed to seize the package as he did, but once he seized it, he was required to hold it unopened until he obtained a search warrant, unless there were exigent circumstances.

Here, the package was in police custody and control.  There was no exigency.

The Court also rejected the People’s attempt at arguing a “plain smell” of the package made its contents obvious and therefore, no warrant was necessary, as is the law with the “plain view” doctrine.  The Court said a “plain smell” approach was not so objective and would “open the door to snooping and rummaging through a person’s personal effects.”

In closing, the Court reminded us, “the warrant requirement is not an empty formality.  It is the cornerstone of the Fourth Amendment’s guarantee of the right of privacy” (Johnson v. United States (1948) 333 U.S. 10, 13-14).

For more information about arrest issues in general, click on the following articles:
  1. Drug Evidence Suppressed When Police Improperly Stop Vehicle
  2. The Police Did Not Read Me My Miranda Rights – Will My Case Be Dismissed?
  3. Bad Cops and Pitchess Motions
For summaries of some of the drug cases we have handled, view our case summaries for select drug offenses.

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