Vol. 28 No. 15 – Warrantless Seizure Was Lawful, Warrantless Search Was Not.


On June 27, 2013, the California Supreme Court, in a unanimous decision, held in the case of Robey v. Superior Court of Santa Barbara County (People), 2013 DAR 8422, that “although a container‘s mobility may constitute exigent circumstances sufficient to justify a warrantless seizure, it cannot alone justify a search of the container once it has been seized.

On July 23, 2010, FedEx employee Nancy Her contacted the Santa Maria Police Department to report that a package smelling of marijuana had been dropped off for shipment to an Illinois address. Officer Nathan Totorica responded. As he entered the store and walked toward the package, Officer Totorica smelled the odor of marijuana, which got stronger as he approached the package. The officer seized the package and took it to the police station, where narcotics officers confirmed the smell of marijuana associated with the package. Police opened the package and discovered 444 grams of marijuana. Police did not obtain a warrant for either the seizure or the search of the package.

Three days later, petitioner Robey arrived at the same FedEx location to inquire about an undelivered package. Ms. Her recognized petitioner as the man who had delivered the box seized by the police, and she telephoned Officer Totorica. Officer Totorica returned to the store and arrested petitioner, who was carrying a packing slip for the seized package.  Robey was arrested and charged with possession for sale and with the sale or transportation of marijuana.

Robey moved to suppress the evidence and the superior court denied the motion, finding that exigent circumstances justified the seizure.  Furthermore, the court held that “the subsequent search was valid under the inevitable discovery doctrine, presumably because the police had sufficient probable cause to obtain a warrant had one been sought.”

Robey filed a petition for a writ of mandate with the Court of Appeal, which granted the petition and issued a peremptory writ of mandate directing the trial court to grant petitioner‘s motion to suppress evidence.

“Without deciding whether the officer was entitled to seize the package, the Court of Appeal held (1) that exigent circumstances did not justify the subsequent search of the container, (2) that the odor of contraband alone cannot justify a warrantless search, (3) that the inevitable discovery doctrine did not apply to the facts here, and (4) that petitioner had not abandoned the package and therefore had standing to seek suppression of the evidence.”

The District Attorney had sought review from the California Supreme Court on the issues of whether (1) the mobility of the package constituted exigent circumstances justifying the warrantless search, and (2) whether the plain smell of marijuana constitutes an exception to the general warrant requirement.

In upholding the Court of Appeal’s order, the Supreme Court only decided the first of the two issues certified for review. Because the District Attorney did not raise the “plain smell” argument at the trial court level, the California Supreme Court declined to answer the question without a more detailed record.

Mobility of the Seized Item

The Supreme Court stated that, “(t)he Fourth Amendment proscribes all unreasonable searches and seizures, and it is a cardinal principle that searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.  It is well established that the Fourth Amendment‘s protection extends to letters and other sealed packages in shipment.”

“As to the first issue on which we granted review, the District Attorney contends that petitioner‘s motion to suppress should be denied because the warrantless seizure and subsequent search of the container in this case were justified by exigent circumstances arising from the container‘s mobility. Here petitioner contests only the search, not the seizure, of the container. As explained below, we conclude that although the mobility of a package in shipment may constitute an exigent circumstance permitting officers to seize it without a warrant, such mobility cannot alone justify a warrantless search of the package after it has been seized.”

Among other theories, the District Attorney equated the situation in the instant case to that involving items in a vehicle. In Chambers v. Maroney, (1970) 399 U.S. 42, the U.S. Supreme Court held that “where police have probable cause to stop and search a car without a warrant, a subsequent search of the car after it has been driven to a police station is also permissible without a warrant.”

“This exception to the warrant requirement, Chambers said, is justified by the ease with which an automobile might be moved out of the jurisdiction before a warrant can be obtained.  Although Chambers recognized that the problem of mobility might be solved by first seizing the car and then seeking a search warrant, the high court declined to adopt such a rule. . . .”

However, the Court notes, “subsequent cases treat Chambers as part of line of authority specifically addressing automobile searches, and the high court has repeatedly held that a movable container suspected to hold evidence or contraband is subject to a warrantless search if the container is located inside an automobile. Outside the context of an automobile search, the high court has not applied the rationale of Chambers . . . or any other authority to hold that the mobility of a container by itself constitutes an exigent circumstance justifying a warrantless search. Instead, the settled rule is that even when government agents may lawfully seize such a package to prevent loss or destruction of suspected contraband, the Fourth Amendment requires that they obtain a warrant before examining the contents of such a package.”

The Robey Court set forth numerous court decisions which analyze the warrantless search of a vehicle, when it was subject to being removed from the scene, as opposed to the warrantless search of items taken from such a vehicle, and which were then in the possession of law enforcement.

Nonetheless, the Court distinguished those vehicle cases from one where an item is being shipped, as opposed to being transported in a vehicle.

“(A)bsent unusual circumstances where transporting or storing a container poses practical difficulties for law enforcement, the concerns justifying an immediate warrantless search of a lawfully stopped automobile do not apply to packages consigned for shipment. In this case, there is no dispute as to whether the police lawfully seized the package without a warrant. Because there was no justification for an immediate search of the package once it was seized, the police had no derivative authority to search the package later at the police station without a warrant.” (Emphasis added.)

Does Smell of Marijuana Justify Search?

The Court discussed the District Attorney’s argument that once the officers realized, through smelling the marijuana, that contraband was present, they had the right to search the package.

The Court said, “the District Attorney argues that the plain smell of marijuana negated any reasonable expectation of privacy in the package, drawing an analogy to the following dictum in a footnote from the United States Supreme Court‘s decision in [Arkansas v. Sanders, (1979) 442 U.S. 753] – ‘Not all containers and packages found by police during the course of a search will deserve the full protection of the Fourth Amendment. Thus, some containers (for example a kit of burglar tools or a gun case) by their very nature cannot support any reasonable expectation of privacy because their contents can be inferred from their outward appearance.’”

The Court acknowledges that subsequent decisions have both upheld and rejected the argument set forth by the District Attorney. “Since Sanders, neither the United States Supreme Court nor this court has ever upheld a warrantless search of a closed container solely on the ground that its smell, appearance, or other outward characteristic clearly announced its contents. Thus, it is fair to say that the legal theory urged by the District Attorney is unsettled in the extant case law and novel in this court’s jurisprudence.”

The Court also noted that, although the law is “unsettled” regarding this issue, the District Attorney failed to raise it in the lower court.  “Because the District Attorney did not raise the plain smell theory at the suppression hearing, the parties had no occasion to put forward the most probative evidence for or against the proposition that the plain smell of marijuana was, by itself, sufficient to justify the warrantless search. In light of the limited record before us, we decline to resolve whether the smell of marijuana can alone justify the warrantless search of a closed container and, if so, under what circumstances.”


Recently, there have been a number of decisions reviewing the Fourth Amendment and the justification of warrantless searches. These are decisions which law enforcement needs to be aware of and understand.  [See Client Alert Memos Vol. 28, No. 12 (6/3/13); Vol. 28, No. 11 (5/22/13); and Vol. 28, No. 6, as just three examples.]

“The touchstone of Fourth Amendment analysis is whether a person has a constitutionally protected reasonable expectation of privacy?”  The Court reinforces that “it is a cardinal principle that searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.”

In the instant case, the Court found justification for the police to seize the package, based on the smell of marijuana, but held that the police lacked authority to search the package without first securing a warrant.

Exigent circumstances can justify a warrantless search but, in this case, the Court said such circumstances did not exist.  Since the package was in the custody and control of the police, there was no reason they couldn’t first apply to a court for a search warrant.

As in all cases involving the law, it is imperative to seek out and follow advice from your agency’s designated legal advisor.  As always, if you wish to discuss this case in greater detail, please feel free to contact me at (714) 446 1400 or via email at mjm@jones-mayer.com.

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