Warrantless Search of FedEx Package Improper; Case 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.Why This Article Matters: A warrantless search of a Fed Ex package, which a Fed Ex employee notified police about because of a “strong odor,” was held improper because a search warrant should be obtained first, as there were no exigent circumstances that would support an exception to the warrant requirement.
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. Robey filed a motion to suppress 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. The trial court denied the motion, saying that exigent circumstances did exist and the inevitable discovery doctrine supported the warrantless search.
The Second Appellate District, in Robey v. Superior Court (2011) 220 Cal.App.4th 1, agreed with Robey. In finding the trial court erred, the appellate court noted that in a 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. Exigent circumstances could include the marijuana turning to another substance (which will not happen) or the marijuana evaporating (which also will not happen).
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