A California appeals court has thrown out nearly one-pound of pot as evidence in a Santa Barbara drug case that was unreasonably seized without a warrant. The case stems from events that occurred in a Santa Barbara County Federal Express Office in July 2010. A FedEx employee in Santa Maria reportedly smelled the odor of marijuana emanating from a package slated for delivery to an address in Illinois. The employee called the police to report the parcel. Law enforcement arrived and seized the package. They brought it to the police station and opened it without seeking a warrant. Law enforcement claims the package contained roughly 15 ounces of pot.

A few days later, the man prosecutors claim was the person who sent the package showed up at the FedEx office asking why the package had not shipped. The man was arrested and prosecutors charged him with possession of marijuana for sale. He sought to have the evidence thrown out in Superior Court, but the judge refused to exclude the pot as evidence at trial. The Second District Court of Appeal overruled the trial judge in a decision handed down Monday.

Los Angeles drug crime attorneys know that the Fourth Amendment guards against unreasonable searches and seizures. The Constitution requires law enforcement to seek a judicially sanctioned warrant before snooping through someone’s personal property. Monday, the appellate panel said that the police should have obtained a warrant before opening the FedEx package.

Apparently, prosecutors had argued that the warrantless search was justified based upon a legal theory called the “plain smell doctrine,” which is an offshoot of the “plain view” theory. That idea allows officers to seize drugs or other contraband that they observe in plain view, for instance, during a routine traffic stop.

Not so fast, the appellate court said Monday. The court said “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.”

The 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 the time and opportunity to seek a judicially sanctioned 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