Robey v. Super. Ct. 10/24/11 CA2/6

State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: B231019

Case Date: 01/19/2012

Preview:Filed 10/24/11

CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SIX

KEWHAN ROBEY, Petitioner, v. THE SUPERIOR COURT OF SANTA BARBARA COUNTY, Respondent; THE PEOPLE, Real Party in Interest.

2d Crim. No. B231019 (Super. Ct. No. 1349412) (Santa Barbara County)

Petitioner Kewhan Robey consigned a sealed package to a common carrier for shipment. The package reeked of marijuana. The carrier notified the police, who seized the package and later opened it at the police station. The police did not seek a warrant even though no exigent circumstances existed at the time of the search. Was the warrantless search justified based on smell alone? Not according to the California Supreme Court. (Guidi v. Superior Court (1973) 10 Cal.3d 1; People v. Marshall (1968) 69 Cal.2d 51.) To smell it is not the same as to see it. The trial court erred in denying Robey's motion to suppress evidence of the marijuana. We grant his petition for writ of mandate.

FACTS On Friday afternoon, July 23, 2010, Federal Express ("FedEx") employee Nancy Her smelled the odor of marijuana emanating from a package received for shipment from Santa Maria to Illinois. She followed company protocol; she withheld the package from the shipping line and telephoned the Santa Maria Police Department. Officer Nathan Totorica responded. When Totorica walked into the FedEx office, he smelled the distinct odor of marijuana. As he approached the counter where the box was located, the odor became stronger. Her told Totorica that FedEx "could not deliver the package" and asked what he wanted done with it. Totorica seized the unopened box "as evidence." Totorica took the package to the police station, where his supervisor, Lieutenant Jerel Haley, also noted the strong odor of marijuana. Both officers have significant training and experience in identifying controlled substances, including the odor of marijuana. When the narcotics unit declined to investigate, Totorica and Haley opened the package, which contained 444 grams (approximately 15 ounces) of marijuana. The officers did not seek a search warrant. A few days later, Robey brought the packing slip for the box back to FedEx and asked why it had not been delivered. Her telephoned Totorica, who subsequently arrested Robey. The slip confirmed that Robey had used a false name. Robey is charged with possession of marijuana for sale (Health & Saf. Code,

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