Stanford Law School - Robert Crown Law Library

Filed 6/27/13



IN THE SUPREME COURT OF CALIFORNIA



KEWHAN ROBEY,

Petitioner,

S197735

v.

Ct.App. 2/6 B231019

THE SUPERIOR COURT OF SANTA

BARBARA COUNTY,

Santa Barbara County

Super. Ct. No. 1349412

Respondent;

THE PEOPLE,

Real Party in Interest.

____________________________________)


Petitioner Kewhan Robey was arrested and charged with possession of

marijuana for sale and with the sale or transportation of marijuana after police

seized a package from a private shipping company and discovered the drug inside.

The superior court denied petitioner‘s motion to suppress evidence, relying on

exigent circumstances and inevitable discovery. The Court of Appeal granted

Robey‘s petition for writ of mandate and ordered the superior court to grant the

motion to suppress. The Office of the Santa Barbara County District Attorney, as

real party in interest, sought this court‘s review on two issues: (1) whether a

police officer may conduct a warrantless search of a package seized from a

common carrier based on the exigent circumstance of the container‘s mobility, and

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(2) whether a police officer can conduct a warrantless search based on the ―plain

smell‖ of contraband.

On the first issue, we hold 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 the

second issue, we find that the District Attorney forfeited the plain smell argument

by failing to raise it in opposition to petitioner‘s motion to suppress in the superior

court. Because the District Attorney presents no other grounds to justify the

search of the container, petitioner‘s motion to suppress should be granted as to the

evidence obtained as a result of the warrantless search.

I.

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. Nancy Her informed Officer Totorica that FedEx could not deliver the

package and asked what she should do with it.

Officer Totorica seized the unopened and sealed box as evidence and took

it to the police station. At the station, he contacted his supervisor, Lieutenant Jerel

Haley, who also concluded that the box smelled of marijuana. The officers

conferred with the narcotics unit and then opened the box. Inside they found 444

grams of marijuana. The officers did not seek a warrant for either the seizure or

subsequent search of the container.

Three days later, petitioner Robey arrived at the same FedEx location to

inquire about an undelivered package. Her recognized petitioner as the man who

had delivered the box seized by the police, and she telephoned Officer Totorica.

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Officer Totorica returned to the store and arrested petitioner, who was carrying a

packing slip for the seized package.

Petitioner was charged with possession of marijuana for sale and with the

sale or transportation of marijuana. (Health & Saf. Code, §§ 11359, 11360, subd.

(a).) The superior court denied petitioner‘s motion to suppress evidence, finding

that exigent circumstances justified the seizure and 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.

Petitioner then sought a writ of mandate in the Court of Appeal, which in

turn issued an order to show cause to the superior court. The Court of Appeal, on

its own initiative, asked the parties to provide an informal response to several

questions, including whether the plain smell of marijuana, by itself, would have

allowed the search and seizure of the package without a warrant. After briefing

and argument by the parties, the Court of Appeal 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 sought review in this court on two issues: whether

the mobility of the package constituted an exigent circumstance permitting the

officers to conduct a warrantless search after the package was already seized, and

whether the plain smell of marijuana constitutes an exception to the warrant

requirement. We granted review.

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II.

―Our review of issues related to the suppression of evidence seized by the

police is governed by federal constitutional standards.‖ (People v. Lenart (2004)

32 Cal.4th 1107, 1118; see Cal. Const., art. I, § 28, subd. (f)(2).) ―In reviewing a

trial court‘s ruling on a motion to suppress evidence, we defer to that court‘s

factual findings, express or implied, if they are supported by substantial evidence.

[Citation.] We exercise our independent judgment in determining whether, on the

facts presented, the search or seizure was reasonable under the Fourth

Amendment.‖ (Lenart, at p. 1119.)

―The touchstone of Fourth Amendment analysis is whether a person has a

‗constitutionally protected reasonable expectation of privacy.‘ ‖ (California v.

Ciraolo (1986) 476 U.S. 207, 211, quoting Katz v. United States (1967) 389 U.S.

347, 360 (conc. opn. by Harlan, J.).) ―What a person knowingly exposes to the

public, even in his own home or office, is not a subject of Fourth Amendment

protection. [Citation.] But what he seeks to preserve as private, even in an area

accessible to the public, may be constitutionally protected.‖ (Katz, at pp. 351–352

(maj. opn.).) ―The 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.‘ [(Katz, at p. 357).]‖ (Mincey v. Arizona (1978) 437

U.S. 385, 390.) It is well established that the Fourth Amendment‘s protection

extends to letters and other sealed packages in shipment. (See, e.g., United States

v. Jacobsen (1984) 466 U.S. 109, 114 (Jacobsen); United States v. Van Leeuwen

(1970) 397 U.S. 249, 251–252; Ex parte Jackson (1877) 96 U.S. 727, 733.)

As an initial matter, the District Attorney says petitioner abandoned his

interest in the package by using a false name and address when he shipped it. But

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this argument is unavailing because the District Attorney, at the suppression

hearing, accepted petitioner‘s offer of proof to establish a privacy interest in the

container, a concession inconsistent with the District Attorney‘s later claim of

abandonment. In addition, the District Attorney did not enter the packing slip into

evidence or create any other record of a false name or address to support a claim

of abandonment in response to defense counsel‘s claim that petitioner showed he

continued to have an interest in the package by checking on its delivery after

leaving it for shipment. (See People v. Pereira (2007) 150 Cal.App.4th 1106,

1113–1114 [upholding trial court‘s finding that defendant did not abandon

package despite using false name and return address because other evidence

showed defendant ― ‗really care[d] about it getting delivered‘ ‖].)

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.

A.

The District Attorney argues that ―[o]nce the package was seized, law

enforcement had the right to open the package based on the exigent circumstances

that existed at the time of the seizure.‖ For this proposition, the District Attorney

relies principally on People v. McKinnon (1972) 7 Cal.3d 899 (McKinnon). The

defendant in McKinnon brought five cartons to an airline freight counter for

shipment, describing their contents as ―personal effects.‖ After the defendant left,

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an airline employee suspected that the cartons contained contraband and, upon

opening one of the cartons, found several brick-shaped packages inside. The

employee, believing he had discovered marijuana in one of the packages,

telephoned the police. When the officer arrived, the carton remained open, and the

officer could see the same brick-shaped packages. The officer ―formed the

opinion that the substance in the packages was marijuana. He proceeded to open

one of the packages, and verified its contents.‖ (Id. at p. 903.)

This court, by a four-to-three majority, upheld the warrantless search and,

in so doing, overruled a pair of four-to-three decisions issued three years earlier

holding that when containers consigned for shipment are safely in the carrier‘s

custody, there is no exigent circumstance justifying a warrantless search.

(McKinnon, supra, 7 Cal.3d at p. 910, overruling People v. McGrew (1969) 1

Cal.3d 404 (McGrew) and Abt v. Superior Court (1969) 1 Cal.3d 418 (Abt).) The

basis for the overruling, McKinnon said, was that the intervening high court

decision in Chambers v. Maroney (1970) 399 U.S. 42 (Chambers) ―undermine[d]

the foundation of the majority opinions in McGrew and Abt.‖ (McKinnon, at

p. 910.)

In Chambers, the high 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. (Chambers,

supra, 399 U.S. at pp. 51–52.) Chambers observed that the high court had long

adhered to the rule that a warrantless search of an automobile is permissible so

long as the police have probable cause to believe the car contains evidence or

contraband. (Id. at p. 48, citing Carroll v. United States (1925) 267 U.S. 132

(Carroll).) 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. (Chambers, at pp. 48, 51.) Although Chambers

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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:

―For constitutional purposes, we see no difference between on the one hand

seizing and holding a car before presenting the probable cause issue to a

magistrate and on the other hand carrying out an immediate search without a

warrant. Given probable cause to search, either course is reasonable under the

Fourth Amendment. [¶] . . . The probable-cause factor still obtained at the station

house and so did the mobility of the car unless the Fourth Amendment permits a

warrantless seizure of the car and the denial of its use to anyone until a warrant is

secured. In that event there is little to choose in terms of practical consequences

between an immediate search without a warrant and the car‘s immobilization until

a warrant is obtained.‖ (Id. at p. 52.)

The court in McKinnon said ―the rationale of Chambers‖ is not ―limited to

searches of automobiles and similar self-propelled ‗vehicles‘ such as trucks, trains,

boats, or airplanes.‖ (McKinnon, supra, 7 Cal.3d at p. 908.) McKinnon stated:

―[W]henever [a container] is consigned to a common carrier, there can be no doubt

that it is intended, in fact, to be moved.‖ (Id. at p. 909.) Because ―all goods or

chattels consigned to a common carrier for shipment‖ are ―no less movable than

an automobile,‖ the court said, ―the reasons for the rule permitting a warrantless

search of a vehicle upon probable cause are equally applicable to the search of

such a chattel.‖ (Ibid.) The court assigned ―no constitutional relevance‖ to the

fact that the cartons were already in the carrier‘s safe custody: ―In Chambers the

defendants‘ automobile was seized by police officers and impounded at the police

station; if the high court can say, as it does, that under those circumstances ‗the

mobility of the car‘ still obtained at the station house [citation], a fortiori a chattel

such as here involved remains ‗mobile‘ in the constitutional sense despite its

limited and voluntary bailment to a common carrier.‖ (McKinnon, at p. 910.)

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McKinnon thus held that ―when the police have probable cause to believe a chattel

consigned to a common carrier contains contraband, they must be entitled either

(1) to search it without a warrant or (2) to ‗seize‘ and hold it until they can obtain a

warrant; absent these remedies, the chattel will be shipped out of the jurisdiction

or claimed by its owner or by the consignee.‖ (Id. at p. 909.)

Three justices dissented in an opinion by Justice Peters. While

acknowledging that the court was ―bound‖ by Chambers, Justice Peters said

―Chambers, however, does not purport to apply to everything that is not nailed

down or affixed to realty. The Supreme Court‘s opinion is closely tied to a long

series of cases involving one and only one form of movable object — that which is

used as a vehicle to transport goods from one place to another.‖ (McKinnon,

supra, 7 Cal.3d at p. 920 (dis. opn. by Peters, J.).) Responding to the court‘s

assertion that a container consigned for shipment ―remains ‗mobile‘ in the

constitutional sense despite its limited and voluntary bailment to a common

carrier‖ (id. at p. 910), Justice Peters said: ―Indeed, chattels will retain their

movable character anywhere, whether within a depot, dwelling house, or concrete

vault as well as an airport, unless they are affixed to realty or otherwise rendered

nonmovable. The point is not that the chattels here involved were within the

custody of the airlines, but that they were not in a vehicle capable of moving them

beyond the jurisdiction on its own power; i.e., they had not entered the course of

transportation. Drawing a line at goods physically aboard a carrier at least has the

virtue of certainty. This is the line drawn by the United States Supreme Court in

case after case. If all things movable could be searched without a warrant if there

were probable cause to believe they contained evidence or contraband, the Fourth

Amendment would be rendered nugatory, and in effect the search without a

warrant would become the rule rather than the exception.‖ (Id. at p. 923 (dis. opn.

by Peters, J.).)

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The central premise of McKinnon — the reason it gave for overruling

McGrew and Abt — is that the high court‘s decision in Chambers, though

involving an automobile search, stands for the broader principle that not only cars

but also ― ‗other things readily moved‘ ‖ are subject to warrantless search upon

probable cause. (McKinnon, supra, 7 Cal.3d at p. 909, italics omitted.) Indeed,

the McKinnon court appeared to treat automobiles as simply one kind of movable

container: ―To be sure, [a box consigned for shipment] has neither wheels nor

motive power; but these features of an automobile are legally relevant only insofar

as they make it movable despite its dimensions. A box, which is a fraction of the

size and weight of an automobile, is movable without such appurtenances.‖ (Id. at

p. 909.) According to McKinnon, a package consigned for shipment falls under

the same rule as an automobile: its mobility renders it subject to a warrantless

search either on the spot or at the station house.

However, during the more than four decades since Chambers was decided,

the high court has never extended the rationale of that decision in the manner that

McKinnon did. To the contrary, as we explain below, 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, Carroll, 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 ―[e]ven 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.‖ (Jacobsen,

supra, 466 U.S. at p. 114.) The development of the law since McKinnon

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undermines its reliance on Chambers as a basis for extending the well-delineated

automobile exception to ―all goods or chattels consigned to a common carrier for

shipment.‖ (McKinnon, at p. 909.)

B.

Seven years after Chambers, the high court decided United States v.

Chadwick (1977) 433 U.S. 1 (Chadwick), which considered the warrantless search

of a container seized from an automobile. In Chadwick, federal agents learned of

two passengers transporting a suspicious footlocker by rail and met the train at its

destination along with a police dog trained to detect marijuana. Without alerting

the suspects, the dog signaled the presence of drugs in the footlocker. The officers

continued to observe the suspects as they loaded the footlocker into the trunk of a

waiting automobile. At that point, before the car engine was started, the officers

arrested the men and seized the footlocker, transporting it to the station house.

There the officers opened the locked footlocker without a warrant and discovered

marijuana inside. (See id. at pp. 3–5.)

Although the footlocker was seized from an automobile, the high court held

that the automobile exception did not apply. (Chadwick, supra, 433 U.S. at

pp. 11–13.) The court explained that the ―footlocker‘s mobility [does not] justify

dispensing with the added protections of the Warrant Clause. Once the federal

agents had seized it at the railroad station and had safely transferred it to the

Boston Federal Building under their exclusive control, there was not the slightest

danger that the footlocker or its contents could have been removed before a valid

search warrant could be obtained. The initial seizure and detention of the

footlocker, the validity of which respondents do not contest, were sufficient to

guard against any risk that evidence might be lost. With the footlocker safely

immobilized, it was unreasonable to undertake the additional and greater intrusion

of a search without a warrant.‖ (Id. at p. 13, fn. omitted.)

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Relying on ―the rationale of [the high court‘s] automobile search cases,‖ the

government argued that ―luggage [is] analogous to motor vehicles for Fourth

Amendment purposes.‖ (Chadwick, supra, 433 U.S. at pp. 11–12.) The high

court acknowledged the automobile search cases, including Chambers, but then

rejected the analogy on several grounds. Whereas a footlocker may be ―safely

immobilized‖ upon seizure, ―[t]his may often not be the case when automobiles

are seized. Absolutely secure storage facilities may not be available, [citation],

and the size and inherent mobility of a vehicle make it susceptible to theft or

intrusion by vandals.‖ (Id. at p. 13 & fn. 7.) Moreover, even where ― ‗the

possibilities of the vehicle‘s being removed or evidence in it destroyed [are]

remote, if not nonexistent,‘ ‖ a warrantless search is justified by ―the diminished

expectation of privacy which surrounds the automobile.‖ (Id. at p. 12.) A person

has a diminished expectation of privacy in an automobile because ― ‗its function is

transportation[,] . . . it seldom serves as one‘s residence or as the repository of

personal effects[,] [i]t travels public thoroughfares where both its occupants and its

contents are in plain view‘ ‖ (id. at p. 12), and both vehicles and drivers are

subject to extensive regulation by states and localities (id. at p. 13). By contrast,

―a person‘s expectations of privacy in personal luggage are substantially greater

than in an automobile.‖ (Id. at p. 13.) Finally, ―[i]t was the greatly reduced

expectation of privacy in the automobile, coupled with the transportation function

of the vehicle, which made the Court in Chambers unwilling to decide whether an

immediate search of an automobile, or its seizure and indefinite immobilization,

constituted a greater interference with the rights of the owner. This is clearly not

the case with locked luggage.‖ (Id. at pp. 13–14, fn. 8; see ibid. [―[a] search of the

interior was . . . a far greater intrusion into Fourth Amendment values than the

impoundment of the footlocker‖ even though the impoundment infringed on the

owners‘ use and possession].)

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Two years later, the high court in Arkansas v. Sanders (1979) 442 U.S. 753

(Sanders) applied the rule in Chadwick to a suitcase found in ―an automobile

lawfully stopped and searched on the street.‖ (Sanders, at p. 762.) As in

Chadwick, the police in Sanders had information that the respondent was carrying

drugs in his luggage. The police met him at the airport and observed as he placed

his luggage in the trunk of a taxi and departed the airport. The police followed,

stopping the taxi several blocks later. An officer opened the trunk and unlocked

the suitcase without a warrant to discover marijuana inside. (See id. at p. 755.)

After citing its automobile search cases, including Chambers, and affirming

the distinctions drawn in Chadwick between luggage and automobiles, the high

court in Sanders said: ―A closed suitcase in the trunk of an automobile may be as

mobile as the vehicle in which it rides. But as we noted in Chadwick, the exigency

of mobility must be assessed at the point immediately before the search — after

the police have seized the object to be searched and have it securely within their

control. [Citation.] Once police have seized a suitcase, as they did here, the

extent of its mobility is in no way affected by the place from which it was taken.

Accordingly, as a general rule there is no greater need for warrantless searches of

luggage taken from automobiles than of luggage taken from other places.‖

(Sanders, supra, 442 U.S. at pp. 763–764, fns. omitted.) Thus Sanders, like

Chadwick, recognized a general rule that movable containers, once lawfully

seized, may not be searched without a warrant and declined to carve out an

exception for luggage seized from an automobile. (See Sanders, at p. 766 [―In

sum, we hold that the warrant requirement of the Fourth Amendment applies to

personal luggage taken from an automobile to the same degree it applies to such

luggage in other locations. Thus, insofar as the police are entitled to search such

luggage without a warrant, their actions must be justified under some exception to

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the warrant requirement other than that applicable to automobiles stopped on the

highway.‖].)

The high court in Sanders rejected the state‘s argument that under

Chambers, ―if the police were entitled to seize the suitcase, then they were entitled

to search it.‖ (Sanders, supra, 442 U.S. at p. 765, fn. 14.) The court saw ―the

seizure of a suitcase as quite different from the seizure of an automobile. In

Chambers, if the Court had required seizure and holding of the vehicle, it would

have imposed a constitutional requirement upon police departments of all sizes

around the country to have available the people and equipment necessary to

transport impounded automobiles to some central location until warrants could be

secured. Moreover, once seized automobiles were taken from the highway the

police would be responsible for providing some appropriate location where they

could be kept, with due regard to the safety of the vehicles and their contents, until

a magistrate ruled on the application for a warrant. Such a constitutional

requirement therefore would have imposed severe, even impossible, burdens on

many police departments. [Citation.] No comparable burdens are likely to exist

with respect to the seizure of personal luggage.‖ (Ibid.)

Three years after Sanders, the high court in United States v. Ross (1982)
456 U.S. 798 (Ross) held that where police have probable cause to search an

automobile without a warrant, the search may encompass not only a closed

compartment such as a glove box, but also any containers or packages found

inside the vehicle. Applying the principle that ―[t]he scope of a warrantless search

based on probable cause is no narrower — and no broader — than the scope of a

search authorized by a warrant supported by probable cause,‖ Ross explained that

―[t]he scope of a warrantless search of an automobile is . . . not defined by the

nature of the container in which the contraband is secreted. Rather, it is defined

by the object of the search and the places in which there is probable cause to

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believe that it may be found.‖ (Id. at pp. 823–824.) ―If probable cause justifies

the search of a lawfully stopped vehicle, it justifies the search of every part of the

vehicle and its contents that may conceal the object of the search.‖ (Id. at p. 825.)

The high court in Ross had occasion to review its automobile search cases,

and it clarified that the justification for searching an automobile without a warrant

is not strictly based on exigency: ―although a failure to seize a moving automobile

believed to contain contraband might deprive officers of the illicit goods, once a

vehicle itself has been stopped the exigency does not necessarily justify a

warrantless search.‖ (Ross, supra, 456 U.S. at p. 807, fn. 9, citing Chambers,

supra, 399 U.S. at pp. 62–64 (conc. & dis. opn. by Harlan, J.).) With regard to

Chambers‘s holding that a vehicle may be searched without a warrant after it has

been impounded if it could have been searched on the spot, Ross explained that the

rule is ―based on the practicalities of the situations presented and a realistic

appraisal of the relatively minor protection that a contrary rule would provide for

privacy interests. Given the scope of the initial intrusion caused by a seizure of an

automobile — which often could leave the occupants stranded on the highway —

the Court [in Chambers] rejected an inflexible rule that would force police officers

in every case either to post guard at the vehicle while a warrant is obtained or to

tow the vehicle itself to the station. Similarly, if an immediate search on the scene

could be conducted, but not one at the station if the vehicle is impounded, police

often simply would search the vehicle on the street — at no advantage to the

occupants, yet possibly at certain cost to the police.‖ (Ross, at p. 807, fn. 9.)

Further, the high court in Ross distinguished Chadwick and Sanders.

Whereas Ross involved the search of a container found inside a car where ―police

officers had probable cause to search respondent‘s entire vehicle‖ (Ross, supra,

456 U.S. at p. 817), Chadwick and Sanders were cases where police had probable

cause to believe only that the luggage — and not ―the vehicle or anything [else]

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within it‖ — contained contraband. (Ross, at p. 814; see id. at p. 824 [―Probable

cause to believe that a container placed in the trunk of a taxi contains contraband

or evidence does not justify a search of the entire cab.‖].) In concluding that ―an

individual‘s expectation of privacy in a vehicle and its contents may not survive if

probable cause is given to believe that the vehicle is transporting contraband‖ (id.

at p. 823, italics added), Ross ―reject[ed] some of the reasoning in Sanders‖

broadly suggesting that ―a warrantless search of a container found in an

automobile could never be sustained as part of a warrantless search of the

automobile itself‖ (Ross, at pp. 814, 824). Ross also said, in tension with

Chadwick‘s statement concerning diminished privacy expectations in cars, that

―[c]ertainly the privacy interests in a car‘s trunk or glove compartment may be no

less than those in a movable container‖ yet ―[t]hese interests must yield to the

authority of a search . . . .‖ (Ross, at p. 823.) But the high court continued to

adhere to the holdings in Sanders and Chadwick because those cases, unlike Ross,

involved probable cause to search only a container and not the car where the

container was found. (Ross, at pp. 809–814, 824.)

Finally, California v. Acevedo (1991) 500 U.S. 565 (Acevedo) dispensed

with the ―dichotomy between the rule in Chadwick and the rule in Ross,‖ which

―dictate[d] that if there is probable cause to search a car, then the entire car —

including any closed container found therein — may be searched without a

warrant, but if there is probable cause only as to a container in the car, the

container may be held but not searched until a warrant is obtained.‖ (Acevedo, at

p. 568.) Explaining that ―Sanders was explicitly undermined in Ross‖ and that

―the dual regimes for automobile searches that uncover containers has proved . . .

confusing‖ for courts and police officers, the high court concluded that ―it is better

to adopt one clear-cut rule to govern automobile searches and eliminate the

warrant requirement for closed containers set forth in Sanders.‖ (Id. at p. 579.)

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Acevedo held: ―The police may search an automobile and the containers within it

where they have probable cause to believe contraband or evidence is contained.‖

(Id. at p. 580.) The high court thus extended the rule in Ross for searching a

container found in the course of a lawful automobile search ―to all searches of

containers found in an automobile,‖ including a search supported only by probable

cause that the container, and not the car, holds evidence or contraband. (Id. at

p. 579.) In so holding, Acevedo overruled Chadwick and Sanders on that point.

(Id. at pp. 576–579.)

C.

The case law on automobile searches, from Carroll to Chambers to

Acevedo, reveals that the rationale for allowing a vehicle to be searched without a

warrant is rooted in practical concerns unique to automobiles. Further, the

rationale for allowing any containers located in a vehicle to be searched without a

warrant is also specific to the automobile context. As we now explain, these

rationales are distinct, and neither supports the analogy drawn in McKinnon

between automobiles and packages consigned for shipment.

1.

As noted, McKinnon said that because ―all goods or chattels consigned to a

common carrier for shipment . . . are no less movable than an automobile, the

reasons for the rule permitting a warrantless search of a vehicle upon probable

cause are equally applicable to the search of such a chattel.‖ (McKinnon, supra, 7

Cal.3d at p. 909.) In concluding that ―a chattel . . . remains ‗mobile‘ in the

constitutional sense despite its limited and voluntary bailment to a common

carrier,‖ McKinnon relied on Chambers‘s statement that the mobility of a car ―still

obtain[s]‖ after it has been seized. (McKinnon, at p. 910, citing Chambers, supra,

399 U.S. at p. 52.) In Ross, however, the high court acknowledged that this

statement in Chambers was something of a legal fiction. Although exigent

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circumstances may justify seizing a moving automobile without a warrant, Ross

explained, ―once a vehicle itself has been stopped the exigency does not

necessarily justify a warrantless search.‖ (Ross, supra, 456 U.S. at p. 807, fn. 9,

citing Chambers, at pp. 62–64 (conc. & dis. opn. by Harlan, J.).) Ross clarified

that the reason for permitting a warrantless search of a lawfully stopped vehicle is

not that the vehicle retains its mobility, but that the ―practicalities‖ of ―forc[ing]

police officers in every case either to post guard at the vehicle while a warrant is

obtained or to tow the vehicle itself to the station‖ — ―which often could leave the

occupants stranded on the highway‖ — are too burdensome to justify a rule

allowing police, upon probable cause, only to seize but not to search a vehicle

without a warrant. (Ross, at p. 807, fn. 9.)

Ross echoed Sanders‘s concern that such a rule would require ―police

departments of all sizes around the country to have available the people and

equipment necessary to transport impounded automobiles to some central location

until warrants could be secured. Moreover, once seized automobiles were taken

from the highway the police would be responsible for providing some appropriate

location where they could be kept, with due regard to the safety of the vehicles and

their contents, until a magistrate ruled on the application for a warrant. Such a

constitutional requirement therefore would have imposed severe, even impossible,

burdens on many police departments.‖ (Sanders, supra, 442 U.S. at p. 765–766,

fn. 14; see also Chadwick, supra, 433 U.S. at p. 13, fn. 7 [noting difficulty of

providing ―[a]bsolutely secure storage facilities‖ for automobiles].) Sanders

observed that these practical concerns limit the rationale of Chambers to

automobiles (Sanders, at p. 765, fn. 14), and it is notable that after Sanders and

Ross, the high court in Acevedo did not explain the holding in Chambers on the

basis of a vehicle‘s continuing mobility after it has been seized. (See Acevedo,

supra, 500 U.S. at pp. 569–570.) Instead, Acevedo explained that the later

17

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warrantless search at the police station in Chambers ―derived from‖ the authority

to conduct ―an immediate search without a warrant at the moment of seizure‖

(Acevedo, at p. 570) — authority that stems from the practical difficulties of

transporting and securely storing an automobile pending issuance of a search

warrant. (See ibid. [describing Chambers as having ―reasoned . . . that the police

could search later whenever they could have searched earlier, had they so

chosen‖].)

The high court‘s refinement of the rationale for Chambers‘s holding

undermines McKinnon‘s purported analogy between automobiles and containers

consigned for shipment. The analogy rests on McKinnon‘s observation that such

containers ―are no less movable than an automobile.‖ (McKinnon, supra, 7 Cal.3d

at p. 909.) But it is clear from Sanders and Ross that the justification for a

warrantless search of an automobile after it has been lawfully stopped turns not on

its continuing mobility but instead on the practical difficulties of towing, storing,

and securing a car, and providing for the safety of its stranded occupants, pending

the issuance of a search warrant. Such difficulties do not generally apply to

packages consigned for shipment, and there is no evidence in the record before us

that the police had any difficulty in bringing the FedEx package to the police

station and securely storing it there pending issuance of a search warrant.

In sum, absent 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.

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2.

Nor do the container searches upheld in Ross and Acevedo lend credence to

McKinnon‘s theory that the mobility of packages consigned for shipment provides

a basis for a warrantless search. Neither Ross nor Acevedo relied on the mobility

of a container found in an automobile as the ground for upholding a warrantless

search.

In Ross, the high court held that when police have probable cause to believe

a vehicle is carrying evidence or contraband, the scope of a search may extend to

―every part of the vehicle that might contain the object of the search,‖ including

the glove compartment, the trunk, and even the upholstery. (Ross, supra, 456 U.S.

at p. 821; see id. at pp. 804–805 [Carroll upheld a search where police tore open a

car‘s upholstery to find contraband].) Ross saw no distinction between the closed

compartments of a car and a closed container found in a car in terms of their utility

for stowing contraband or the privacy interests affected. (Ross, at pp. 820–821,

823.) If a car‘s closed compartments may be opened without a warrant during a

lawful vehicle search, the high court reasoned, then closed containers found during

a lawful vehicle search may be opened as well. (Id. at p. 824 [scope of automobile

search ―is not defined by the nature of the container in which the contraband is

secreted‖ but ―by the object of the search and the places in which there is probable

cause to believe that it may be found‖].)

In reaching this holding, Ross nowhere suggested that seizing or storing a

container posed any of the practical difficulties associated with towing and

impounding an automobile pending issuance of a search warrant. But Ross did

rely on practical concerns unique to containers found in the course of a lawful

automobile search. In rejecting a rule that would allow police to search the entire

vehicle but require any containers found to be taken to a magistrate, Ross observed

that ―prohibiting police from opening immediately a container in which the object

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of the search is most likely to be found and instead forcing them first to comb the

entire vehicle would actually exacerbate the intrusion on privacy interests.

Moreover, until the container itself was opened the police could never be certain

that the contraband was not secreted in a yet undiscovered portion of the vehicle;

thus in every case in which a container was found, the vehicle would need to be

secured while a warrant was obtained.‖ (Ross, supra, 456 U.S. at p. 821, fn. 28.)

It is thus apparent that Ross‘s reasoning applies specifically to containers found

during an automobile search and not to movable containers generally.

The same is true of Acevedo. In allowing police to open a container in a car

where probable cause extends only to the container and not the car, Acevedo, like

Ross, did not rely on the mobility of such containers or on any suggestion that

containers pose the kind of practical problems associated with seizing and storing

an automobile pending a search warrant. Instead, the high court explained that

having held in Ross that police may open a container found in the course of a

general vehicle search, it could see ―no principled distinction‖ between such a

container and ―a container found in a car after a limited search for the container.‖

(Acevedo, supra, 500 U.S. at p. 574; see ibid. [both types of containers ―are

equally easy for the police to store and for the suspect to hide or destroy‖].) As in

Ross, the high court in Acevedo said that prohibiting police from opening a

container found in a car may ―disserve privacy interests.‖ (Acevedo, at p. 574.)

―At the moment when officers stop an automobile, it may be less than clear

whether they suspect with a high degree of certainty that the vehicle contains

drugs in a bag or simply contains drugs. If the police know that they may open a

bag only if they are actually searching the entire car, they may search more

extensively than they otherwise would in order to establish the general probable

cause required by Ross. [¶] . . . We cannot see the benefit of a rule that requires

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law enforcement officers to conduct a more intrusive search in order to justify a

less intrusive one.‖ (Id. at pp. 574–575.)

With this passage and others, Acevedo made clear that its rationale and

holding pertained specifically to containers in the context of automobile searches.

In rejecting the relevance of cases concerning other container searches, Acevedo

said: ―From Carroll through Ross, this Court has explained that automobile

searches differ from other searches.‖ (Acevedo, supra, 500 U.S. at p. 578.)

Further, the court said: ―Our holding today neither extends the Carroll doctrine

nor broadens the scope of the permissible automobile search delineated in Carroll,

Chambers, and Ross. It remains 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.‖ ‘ [Citation.] We held in Ross: ‗The

exception recognized in Carroll is unquestionably one that is ―specifically

established and well delineated.‖ ‘ [Citation.]‖ (Acevedo, at p. 580.) And perhaps

most pointedly, Acevedo explained its holding as follows: ―Until today, this Court

has drawn a curious line between the search of an automobile that coincidentally

turns up a container and the search of a container that coincidentally turns up in an

automobile. The protections of the Fourth Amendment must not turn on such

coincidences. We therefore interpret Carroll as providing one rule to govern all

automobile searches.‖ (Ibid., italics added.)

Thus, in overruling Chadwick and Sanders, Acevedo rejected the view that

containers found in cars are subject to the same Fourth Amendment rules that

apply to container searches generally. However, in bringing all containers found

in cars within the ambit of the automobile exception, Acevedo expressly limited its

holding to automobile searches and did not disturb the general rule that a warrant

is required to search a lawfully seized container. Nothing in the automobile-

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specific reasoning of Ross and Acevedo invites an extension of those holdings to

permit the warrantless search of a sealed package consigned for shipment.

D.

In the midst of developing its jurisprudence on container searches in the

context of automobiles, the high court had occasion to consider the applicability of

the Fourth Amendment to containers outside of the automobile context. (See

Jacobsen, supra, 466 U.S. 109; United States v. Place (1983) 462 U.S. 696

(Place).) These cases confirm that a warrant is required to search a package

consigned for shipment once it has been lawfully seized.

In Place, federal agents met a suspicious airline passenger at his destination

and asked to search his luggage. (Place, supra, 462 U.S. at p. 698.) When the

passenger refused, the agents seized his bags and transported them to another

location for a ―sniff test‖ by a narcotics detection dog. Ninety minutes later, the

test was performed, and the dog alerted to one of the bags, whereupon the agents

obtained a search warrant, opened the bag, and discovered cocaine. (Id. at p. 699.)

The high court held that the officer‘s reasonable suspicion justified an

investigative detention of the luggage and that the canine sniff did not constitute a

search under the Fourth Amendment. (Id. at pp. 706–707.) But the court also held

that the 90-minute detention of the suspect‘s luggage in order to conduct the sniff

test exceeded the permissible scope of the investigative detention. (Id. at pp. 709–

710.)

In setting forth the applicable principles, Place said: ―Where law

enforcement authorities have probable cause to believe that a container holds

contraband or evidence of a crime, but have not secured a warrant, the Court has

interpreted the Amendment to permit seizure of the property, pending issuance of

a warrant to examine its contents, if the exigencies of the circumstances demand it

or some other recognized exception to the warrant requirement is present.‖

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(Place, supra, 462 U.S. at p. 701, italics added.) In other words, exigent

circumstances can justify the seizure of a container without a warrant, but the

container, once seized, cannot be searched without ―issuance of a warrant to

examine its contents.‖ (Ibid.) In support of this general rule, Place cited Sanders

and Chadwick. As noted, Acevedo overruled Sanders and Chadwick insofar as

they applied the warrant requirement to containers found in cars. But Acevedo, in

exempting containers found in cars, did not call into question the general rule for

container searches that was stated by Place and recognized by Sanders and

Chadwick. (See ante, at pp. 20–21.) Indeed, even as it overruled Sanders and

Chadwick with respect to container searches in the automobile context, Acevedo

distinguished Place on the ground that Place ―did not involve an automobile at

all.‖ (Acevedo, supra, 500 U.S. at p. 577; see id. at p. 578 [―Place had nothing to

do with the automobile exception and is inapposite.‖].) The general rule stated by

Place thus remains good law.

One year after Place, the high court decided Jacobsen, supra, 466 U.S. 109.

In that case, FedEx employees opened a package that had been damaged by a

forklift. Upon discovering plastic bags with white powder packed inside a tube

with crumpled newspaper, the employees notified law enforcement. When a

federal agent arrived, he found the package with the top open and one end of the

tube slit open. He removed the plastic bags from the tube and saw the white

powder. He then opened the bags and conducted a field test that identified the

powder as cocaine. (See id. at pp. 111–112.)

The high court held that the initial opening of the package by the FedEx

employees ―did not violate the Fourth Amendment because of their private

character.‖ (Jacobsen, supra, 466 U.S. at p. 115.) The court then held that

because the private search had eliminated any privacy interest in the contents of

the package, the agent‘s handling of the package and its contents was lawful

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insofar as it did not exceed the scope of the private search. (Id. at p. 119 [agent‘s

―manual inspection of the tube and its contents‖ did ―not tell him anything more

than he already had been told‖ by the FedEx employees]; id. at p. 121 [seizure was

reasonable because ―respondents‘ privacy interest in the contents of the package

had been largely compromised . . .‖].) Finally, the court held that ―[a] chemical

test that merely discloses whether or not a particular substance is cocaine does not

compromise any legitimate interest in privacy.‖ (Id. at p. 123.)

Jacobsen prefaced its analysis with the following precepts: ―When the

wrapped parcel involved in this case was delivered to the private freight carrier, it

was unquestionably an ‗effect‘ within the meaning of the Fourth Amendment.

Letters and other sealed packages are in the general class of effects in which the

public at large has a legitimate expectation of privacy; warrantless searches of

such effects are presumptively unreasonable. 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. Such a warrantless search could not be

characterized as reasonable simply because, after the official invasion of privacy

occurred, contraband is discovered.‖ (Jacobsen, supra, 466 U.S. at p. 114, italics

added and fns. omitted.) In support of the italicized rule, the high court cited

Place as well as Ross, Sanders, and Chadwick. (Jacobsen, at p. 114, fn. 8.)

Jacobsen‘s affirmation of the general rule casts further doubt on McKinnon

because if the mobility of a container consigned for shipment were enough to

justify a warrantless search, as McKinnon held, then Jacobsen‘s entire analysis

upholding the agent‘s inspection of the package and its contents would have been

unnecessary.

Since Jacobsen, the issue of whether a package consigned for shipment

may be searched without a warrant appears to have arisen infrequently, and the

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few reported cases on point have concluded that a warrant is required. In Daniels

v. Cochran (Fla.Dist.Ct.App. 1995) 654 So.2d 609 (Daniels), a police officer

opened a package to which a drug-sniffing dog alerted during ―routine package

checks on a conveyor belt at a Federal Express office.‖ (Id. at p. 611.) The court

held that ―[w]hile [the officer] may have been entitled to seize the package based

on the dog‘s alert without a warrant, his opening of the package without a warrant

violated the Fourth Amendment . . . .‖ (Id. at p. 613.) Distinguishing Acevedo‘s

exception for warrantless searches of automobiles and their contents, the court said

that ―a canine sniff which alerts to a package does not eliminate the requirement

that, absent exigent circumstances, consent or other recognized exceptions, a

search warrant must be obtained before a search of the contents of the package

passes constitutional muster. See [Place, supra, 462 U.S. at pp. 706–707].‖

(Daniels, at p. 613.)

In Seeley v. State (Ala.Crim.App. 1995) 669 So.2d 209 (Seeley), a FedEx

employee, Kaufmann, opened an undeliverable box and found a tubular package

inside. He did not open the tube but squeezed it, felt a powdery substance he

suspected to be drugs, and called the police. An officer, Ware, arrived with a

drug-sniffing dog that alerted to the tube. The officer then took the tube to his

office. There, he opened it and performed a test on the powder that indicated the

presence of cocaine. (Id. at p. 211.) The court invalidated the search: ―Under

Jacobsen, Ware exceeded the scope of Kaufmann‘s search when he cut open the

tube in the appellant‘s package without a search warrant. Jacobsen establishes

that a legitimate expectation of privacy exists in sealed packages sent by common

carrier and that a warrantless government search cannot exceed what was carried

out by private parties. Ware should have obtained a search warrant before cutting

open the tubular package that contained cocaine. Ware had probable cause to

obtain a search warrant based on his observations and the results of the ‗sniff test‘

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by the narcotics detection dog. Because Ware had dominion and control over the

package, there was little chance of loss or destruction of the package. There were

no exigent circumstances that justified opening the package before obtaining a

search warrant.‖ (Id. at pp. 213–214.)

In contrast to the warrantless searches held unlawful in Daniels and Seeley,

the conduct of law enforcement in many other cases suggests that it is common

practice, consistent with Place and Jacobsen, to obtain a warrant before searching

a container consigned for shipment. (See, e.g., United States v. Robinson (6th Cir.

2004) 390 F.3d 853, 858–859 [police obtained a warrant to open a package in

shipment that smelled of marijuana]; Unites States v. Logan (8th Cir. 2004) 362

F.3d 530, 531–532 [police obtained a warrant to open a package at a mailbox

facility after narcotics dog alerted to the package]; Unites States v. Morones (8th

Cir. 2004) 355 F.3d 1108, 1109 [police obtained a warrant to search a package

detained at a FedEx facility]; United States v. Smith (7th Cir. 1994) 34 F.3d 514,

516 [police obtained a warrant to search a FedEx package after a canine alert];

United States v. Hall (10th Cir. 1994) 20 F.3d 1084, 1085 [same].)

The District Attorney asserts, without citation to any authority, that

McKinnon ―is still good law and has been followed by numerous courts.‖ In fact,

there appear to be only two California cases that have applied McKinnon to uphold

the warrantless search of a container based on its mobility, and both predate the

development of the law in Chadwick, Sanders, Place, and Jacobsen. (See People

v. Goodyear (1975) 54 Cal.App.3d 157, 162; People v. Superior Court (Reilly)

(1975) 53 Cal.App.3d 40, 51–52.) To buttress McKinnon, the District Attorney

relies on United States v. Johnston (9th Cir. 1974) 497 F.2d 397, which upheld the

warrantless search of two suitcases on a departing train. But United States v.

Johnston also predates the line of cases from Chadwick to Jacobsen. The District

Attorney also relies on United States v. Johns (1985) 469 U.S. 478 (Johns), which

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applied Ross to uphold the delayed search of packages found in two lawfully

seized pickup trucks. But because Johns is an automobile search case, it lends no

support to McKinnon‘s holding for reasons already discussed.

McKinnon‘s rule that the mobility of a container is itself sufficient to justify

a warrantless search has not been followed by any appellate court in California for

almost four decades. This is unsurprising in light of subsequent developments that

have undermined McKinnon‘s analogy between the mobility of cars and the

mobility of containers as the basis for a warrantless search. We conclude that

McKinnon, supra, 7 Cal.3d 899 is no longer to be followed on this point. A

container consigned for shipment is subject to the same rule as other containers

outside of the specific and well-delineated context of an automobile search: ―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.‖ (Jacobsen,

supra, 466 U.S. at p. 114, fn. omitted; see Place, supra, 462 U.S. at p. 701.)

In the present case, the mobility of the package constituted exigent

circumstances justifying Officer Totorica‘s seizure of the FedEx package without

a warrant so long as he had probable cause to believe it contained contraband. But

seizure of the package by the police negated its mobility. Absent some other

exception to the warrant requirement, the Fourth Amendment required the police

to obtain a search warrant before opening the package after it had been seized.

III.

In addition to invoking exigent circumstances, the District Attorney argues

that the plain smell of marijuana emanating from the package was, by itself,

sufficient justification for the warrantless search. As we explain, however, we do

not decide this issue because the District Attorney forfeited the argument by

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failing to raise it in opposition to petitioner‘s suppression motion in the superior

court.

In order to understand our finding of forfeiture here, it is important to

distinguish between two different legal claims involving the sense of smell. The

first is that a distinctive odor can provide probable cause to believe that a closed

container contains contraband. This proposition is well established by cases that

have found the smell of contraband sufficient to establish the probable cause

necessary for police to obtain a search warrant (see Johnson v. United States

(1948) 333 U.S. 10, 13) or to conduct a search or seizure under the automobile or

exigent circumstances exception to the warrant requirement (see People v. Cook

(1975) 13 Cal.3d 663, 668–670, disapproved on other grounds by People v. Doolin

(2009) 45 Cal.4th 390; People v. Gale (1973) 9 Cal.3d 788, 794; United States v.

McCoy (8th Cir. 2000) 200 F.3d 582, 584; United States v. Downs (10th Cir.

1998) 151 F.3d 1301, 1303; U.S. v. Pierre (5th Cir. 1992) 958 F.2d 1304, 1310;

Gilliam v. United States (D.C. 2012) 46 A.3d 360, 364; Dies v. State (Miss. 2006)

926 So.2d 910, 918; People v. Kazmierczak (Mich. 2000) 605 N.W.2d 667, 672;

State v. Moore (Ohio 2000) 734 N.E.2d 804, 807–808 & fns. 1, 2 [collecting

cases]).

The second claim is that the plain smell of marijuana by itself justifies the

search of a container without a warrant, separate and apart from any other

exception to the warrant requirement. Here the claim is not that the smell of

marijuana can establish the probable cause necessary to obtain a warrant or to

invoke an exception to the warrant requirement, but that the police simply do not

need a warrant to search a package that reeks of marijuana. It is this claim that the

District Attorney presses in this court but failed to raise in the superior court.

In opposing petitioner‘s motion to suppress in the trial court, the District

Attorney argued that the smell of marijuana constituted probable cause to support

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the seizure and search of the package without a warrant in light of exigent

circumstances arising from the package‘s mobility. In support of this argument,

the District Attorney offered Officer Totorica‘s testimony that the package smelled

of marijuana and that ―[t]he odor was stronger as I got closer to the package.‖

Officer Totorica also testified that he smelled marijuana upon entering the store

and that the entry was an ―estimated 25 feet‖ from the package, although these

assertions were not included in his incident report. Lieutenant Haley similarly

testified that ―there was a distinct odor of marijuana coming from [the package].‖

Both officers said they were trained and experienced in smelling marijuana. The

smell was also apparent to the store employee, Nancy Her, who did not indicate

she had any special training.

The trial court upheld the seizure of the package under the exigent

circumstances exception to the warrant requirement, and this ruling is fairly

understood to encompass a determination that the evidence adduced at the

suppression hearing established probable cause that the package contained

contraband. As noted, petitioner does not challenge the legality of the seizure —

and for good reason: The trial court‘s implicit finding of probable cause is

supported by substantial evidence, and the existence of probable cause, together

with the exigent circumstance of the package‘s mobility, justified Officer

Totorica‘s seizure of the package without a warrant. (See Place, supra, 462 U.S.

at p. 701.) As for the subsequent search, the trial court upheld it on the basis of

inevitable discovery, but the Court of Appeal rejected that theory and the District

Attorney does not defend it here.

After petitioner sought a writ of mandate in the Court of Appeal, the Court

of Appeal on its own initiative issued a letter to the parties requesting an informal

response to several questions, including the following: ―Do the courts recognize a

‗plain smell‘ doctrine that would have allowed the search and seizure of the

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package without a warrant?‖ This was the first time in the case that the parties

were asked to consider whether the smell of marijuana could alone provide an

independent and sufficient basis for a warrantless search or seizure, and not just a

basis for establishing probable cause. The District Attorney responded in the

affirmative, and the parties proceeded to brief and argue this issue in the Court of

Appeal. The Court of Appeal dedicated a significant portion of its opinion to

rejecting the theory that the plain smell of marijuana can alone justify a

warrantless search, and the District Attorney then sought our review on this issue.

In this court, 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 Sanders: ―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.‖ (Sanders, supra, 442

U.S. at p. 765, fn. 13; see Robbins v. California (1981) 453 U.S. 420, 428 (plur.

opn.) [―to fall within the [exception described in Sanders‘s footnote] a container

must so clearly announce its contents, whether by its distinctive configuration, its

transparency, or otherwise, that its contents are obvious to an observer‖], revd. on

other grounds by Ross, supra, 456 U.S. 798.) Although some courts, relying on

Sanders or Robbins, have held that the plain smell of contraband justifies the

search of a closed container without a warrant (see United States v. Haley (4th Cir.

1982) 669 F.2d 201, 204, fn. 3; United States v. Epps (11th Cir. 2010) 613 F.3d

1093, 1098), other courts have rejected this view (see United States v. Johns (9th

Cir. 1983) 707 F.2d 1093, 1096, revd. on other grounds by Johns, supra, 469 U.S.

at p. 487; United States v. Dien (2d Cir. 1979) 609 F.2d 1038, 1045). Since

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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.

Although it is not improper for a reviewing court to decide the merits of an

alternate ground for affirming the judgment of a trial court even if that ground was

not argued by the parties below (see, e.g., People v. Robles (2000) 23 Cal.4th 789,

800–801 & fn. 7), we have cautioned that appellate courts should not consider a

Fourth Amendment theory for the first time on appeal when ―the People‘s new

theory was not supported by the record made at the first hearing and would have

necessitated the taking of considerably more evidence‖ or when ―the defendant

had no notice of the new theory and thus no opportunity to present evidence in

opposition.‖ (Green v. Superior Court (1985) 40 Cal.3d 126, 137–138.) In this

case, although the facts adduced at the suppression hearing were sufficient to

establish probable cause that the package contained contraband, the evidence on

the issue of smell was not extensive. Neither the District Attorney nor the defense

offered evidence that provided any depth or detail concerning the intensity or other

qualities of the smell detected by the officers. Nor does the record contain much

information about the extent or limitations of the officers‘ training or experience in

detecting marijuana through the sense of smell. 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.

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The way the plain smell issue arose in this case prompts us to caution

appellate courts against proposing, on their own initiative, novel theories that the

parties did not address in the course of litigating a motion to suppress in the trial

court. Our admonition is rooted in principles of judicial restraint, which have

particular salience when courts are confronted with unsettled constitutional issues.

― ‗In an emerging area of the law, we do well to tread carefully and exercise

judicial restraint, deciding novel issues only when the circumstances require.‘ ‖

(Matrixx Initiatives, Inc. v. Doe (2006) 138 Cal.App.4th 872, 881, quoting Mateel

Environmental Justice Foundation v. Edmund A. Gray Co. (2003) 115

Cal.App.4th 8, 20, fn. 6.)

CONCLUSION

For the reasons above, we conclude that the seizure of the package was

lawful but the warrantless search of the sealed package was not justified by

exigent circumstances and that the District Attorney forfeited the argument that

the plain smell of marijuana alone justified the search without a warrant. Because

the Court of Appeal‘s decision did not distinguish between evidence obtained

from the impermissible warrantless search and any evidence that might have been

obtained from the permissible warrantless seizure, we affirm in part and reverse in

part the judgment of the Court of Appeal and remand the matter to that court with

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directions to issue a peremptory writ of mandate. The peremptory writ shall direct

the superior court to vacate its order denying petitioner‘s motion to suppress

evidence and conduct further proceedings consistent with this opinion.

LIU, J.


WE CONCUR: CANTIL-SAKAUYE, C. J.


KENNARD, J.

BAXTER, J.

WERDEGAR, J.

CHIN, J.

CORRIGAN, J.

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CONCURRING OPINION BY LIU, J.

As today‘s opinion explains, there is an important difference between two

kinds of smell-related claims. One is that the detection of a distinctive odor

through a police officer‘s sense of smell may establish probable cause that a

closed container holds contraband. This proposition is well established. (See

Johnson v. United States (1948) 333 U.S. 10, 13 [smell of contraband may support

probable cause where the officer is ―qualified to know the odor, and [the odor] is

one sufficiently distinctive to identify a forbidden substance‖].) The other, quite

different claim is that the plain smell of contraband is sufficient by itself, apart

from any other exception to the warrant requirement, to justify opening a closed

container without a search warrant. This proposition, which is not well

established, is said by some courts and the District Attorney here to rest on an

analogy to the plain view doctrine in Fourth Amendment law. I write separately to

explain why this analogy is inapt and to elucidate concerns that should give courts

pause before authorizing warrantless searches of closed containers based solely on

the smell of contraband.

I.

The difference between a seizure and a search underlies the disanalogy

between the plain view doctrine and the purported plain smell justification for

opening a closed container without a warrant. The plain view doctrine holds that

an officer may seize an object in plain view without a warrant so long as the

officer is lawfully present in the place from which the object is viewed, the

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incriminating nature of the object is immediately apparent, and the officer has a

lawful right of access to seize the object. (See Horton v. California (1990) 496

U.S. 128, 136–137 (Horton).) As the high court has explained, the officer‘s

conduct in such circumstances does not invade any Fourth Amendment privacy

interest; it invades only the owner‘s possessory interest in the object. (Horton, at

pp. 133–134.) This distinction elucidates why the plain view doctrine is a doctrine

about seizures, not searches: ―The ‗plain-view‘ doctrine is often considered an

exception to the general rule that warrantless searches are presumptively

unreasonable, but this characterization overlooks the important difference between

searches and seizures. If an article is already in plain view, neither its observation

nor its seizure would involve any invasion of privacy. [Citations.] A seizure of

the article, however, would obviously invade the owner‘s possessory interest.

[Citations.] If ‗plain view‘ justifies an exception from an otherwise applicable

warrant requirement, therefore, it must be an exception that is addressed to the

concerns that are implicated by seizures rather than by searches.‖ (Id. at pp. 133–

134, fns. omitted.)

This difference between seizures and searches was recognized in one of our

early Fourth Amendment cases addressing the issue of smell. In People v.

Marshall (1968) 69 Cal.2d 51 (Marshall), the court rejected the argument that

police could dispense with the warrant requirement when opening a closed

container based on the smell of marijuana. The officers in Marshall entered an

apartment to arrest a suspect for the sale of marijuana to an informant. No one

was inside the apartment when they arrived, but an officer ―detected a sweet odor‖

coming from a closed paper bag located in an open cardboard box inside an open

bedroom closet. (Id. at p. 55.) The odor was similar to the smell of the marijuana

previously sold to the informant. The officers opened the bag and found 21 plastic

bags of marijuana.

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In an opinion by Chief Justice Traynor, the court stated the general rule that

―police officers may seize contraband evidence ‗in plain sight‘ ‖ and observed that

―[u]nder such circumstances there is, in fact, no search for evidence.‖ (Marshall,

supra, 69 Cal.2d at p. 56.) But the marijuana in Marshall was not in plain sight; it

was concealed inside a brown paper bag. (Id. at pp. 56–57.) In response to the

Attorney General‘s argument that ―the marijuana should . . . be deemed to have

been in plain view of the officer‖ based on its odor, the court reasoned as follows:

―[The Attorney General‘s] contention overlooks the difference between probable

cause to believe contraband will be found, which justifies the issuance of a search

warrant, and observation of contraband in plain sight, which justifies seizure

without a warrant. However strongly convinced officers may be that a search will

reveal contraband, their belief, whether based on the sense of smell or other

sources, does not justify a search without a warrant.‖ (Id. at p. 57.)

The court further explained: ―In the present case the brown paper bag itself

was not contraband. Only by prying into its hidden interior [citation] could the

officer be sure that he was seizing contraband and nothing more. The fact that the

container was only a brown paper bag instead of a packing box, purse, handbag,

briefcase, hatbox, snuffbox, trunk, desk, or chest of drawers [citation] is

immaterial. It is inherently impossible for the contents of a closed opaque

container to be in plain view regardless of the size of the container or the material

it is made of. A search of the container is necessary to disclose its contents. A

search demands a search warrant.

―Of course officers may rely on their sense of smell to confirm their

observation of already visible contraband. [Citations.] To hold, however, that an

odor, either alone or with other evidence of invisible contents[,] can be deemed the

same as or corollary to plain view, would open the door to snooping and

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rummaging through personal effects. Even a most acute sense of smell might

mislead officers into fruitless invasions of privacy where no contraband is found.

―Moreover, however keen their sense of smell, officers cannot seize the

thing they smell until they find it after looking for and through the places from

which the odor emanates. In short, they must still conduct a search. . . . ‗In plain

smell,‘ therefore, is plainly not the equivalent of ‗in plain view.‘ ‖ (Marshall,

supra, 69 Cal.2d at pp. 58–59.)

Although Marshall‘s authority as precedent was arguably undermined by a

four-justice concurring opinion in Guidi v. Superior Court (1973) 10 Cal.3d 1

(Guidi) urging that Marshall be overruled (see Guidi, at p. 19 (conc. opn. by

Mosk, J.)), Guidi involved facts different from those in Marshall. The police in

Guidi, after learning from an informant that two individuals suspected of selling

hashish from a shopping bag were inside an apartment, entered the apartment and

arrested the two suspects in the living room. One of the officers, Holt, then moved

from the living room to the kitchen to investigate sounds coming from the rear of

the apartment. In the kitchen, Officer Holt saw a shopping bag in plain view that

smelled of hashish, and ―[s]eizing the bag he found the 10 ‗baggies‘ of hashish

within.‖ (Id. at p. 5 (lead opn.).) On these facts, the court unanimously concluded

that ―the exigencies of the situation‖ — the possibility that other suspects

remained in the apartment to protect the contraband — justified the warrantless

search. (Id. at p. 19; see ibid. [―Having seen the described container of contraband

in plain sight, Officer Holt was justified in ascertaining if it still contained the

hashish, so as to evaluate the continuing danger of its violent defense.‖].)

To the extent Marshall suggested that the smell of contraband coupled with

exigent circumstances would not justify a warrantless search, Guidi said ―it is no

longer to be followed.‖ (Guidi, supra, 10 Cal.3d at p. 17, fn. 18; see People v.

Cook (1975) 13 Cal.3d 663, 668, fn. 4 (Cook) [―the result in Guidi was a pro tanto

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overruling of Marshall as to the particular issue‖ (italics added)], disapproved on

other grounds by People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) But

Marshall itself, unlike Guidi, did not involve exigent circumstances, and none of

our cases since Guidi has called into question Marshall‘s holding that ―[h]owever

strongly convinced officers may be that a search will reveal contraband, their

belief, whether based on the sense of smell or other sources, does not justify a

search without a warrant‖ absent an established exception to the warrant

requirement. (Marshall, supra, 69 Cal.2d at p. 57.) Further, Chief Justice

Traynor‘s lucid reasoning in Marshall, which carefully distinguished between a

plain-view seizure and a plain-smell search, correctly anticipated the high court‘s

understanding that the plain-view seizure of a container ―does not compromise the

interest in preserving the privacy of its contents because it may only be opened

pursuant to either a search warrant [citations], or one of the well-delineated

exceptions to the warrant requirement. [Citations.]‖ (Horton, supra, 496 U.S. at

p. 141, fn. 11.)

Like the observation of an object in plain view, the detection of the plain

smell of marijuana does not involve any intrusion on privacy. No search has

occurred within the meaning of the Fourth Amendment when an officer simply

uses his nose to smell the odor of marijuana emanating from a closed container.

However, unlike the mere act of sensory detection through sight or smell, the act

of opening a closed container to expose its contents — whether it turns out to be

contraband or something else — typically involves an intrusion on privacy and

constitutes a search. The sense of smell, no less than any of the other senses, may

give rise to probable cause to search. But probable cause ordinarily supports the

issuance of a search warrant; it does not obviate the need for one.

There is nothing anomalous in the fact that the smell of contraband may be

sufficient to justify opening a package with a warrant yet insufficient to justify

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opening it without a warrant. That is equally true of an informant‘s tip, a police

officer‘s observation, or any other evidence supplying probable cause to conduct a

search that is subject to the warrant requirement. The degree of suspicion

supporting a search may be the same whether it is asserted beforehand in a warrant

application or after the fact at a suppression hearing. But there is an important

difference between requiring law enforcement officials to articulate their suspicion

before searching for contraband and permitting officials to articulate their ex ante

suspicion after contraband has already been found. That difference is a key reason

why the law imposes the warrant requirement as a safeguard against excessive zeal

or misconduct by law enforcement.

Further, it is no answer to say that the distinctive odor of marijuana may

enable a trained officer to tell with virtual certainty what is inside a closed

container, for the same degree of certainty might arise through a tip from an

unfailingly reliable informant. In neither case does the accuracy of the officer‘s

suspicion bring the contents of a closed container into plain view such that seizure

of those contents involves no search. As the high court has repeatedly said, even

where ― ‗[i]ncontrovertible testimony of the senses . . . may establish the fullest

possible measure of probable cause,‘ ‖ the settled rule is that ― ‗no amount of

probable cause can justify a warrantless search or seizure absent ―exigent

circumstances‖ ‘ ‖ or some other established exception to the warrant requirement.

(Horton, supra, 496 U.S. at p. 137, fn. 7, quoting Coolidge v. New Hampshire

(1971) 403 U.S. 443, 468.)

II.

Against this legal backdrop, the District Attorney contends that neither the

act of smelling the package nor the act of opening it constitutes a search within the

meaning of the Fourth Amendment because there is no reasonable expectation of

privacy in a sealed package that reeks of marijuana. The argument is that no

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search warrant is required because no search occurs when police open a package

whose contents have already announced themselves through their distinctive odor.

The United States Supreme Court has not resolved whether odor alone

might negate a reasonable expectation of privacy in a sealed package, although the

court flagged this issue in United States v. Johns (1985) 469 U.S. 478, 481

(Johns). There, customs officers investigating a drug smuggling operation smelled

marijuana coming from two pickup trucks in which they also saw distinctive green

packages consistent with a common means of wrapping marijuana. The officers

seized the trucks and removed the packages, opening them three days later without

a warrant. The high court upheld the warrantless search because the odor and

sight of the packages gave the officers probable cause to search the trucks under

the automobile exception to the warrant requirement. (Id. at p. 487.) The court

acknowledged but did not address the argument that the odor of marijuana might

negate an expectation of privacy in a closed container: ―Whether respondents ever

had a privacy interest in the packages reeking of marihuana is debatable. We have

previously observed that certain containers may not support a reasonable

expectation of privacy because their contents can be inferred from their outward

appearance, [citing Arkansas v. Sanders (1979) 442 U.S. 753, 764–765, n. 13], and

based on this rationale the Fourth Circuit has held that ‗plain odor‘ may justify a

warrantless search of a container. [(United States v. Haley (4th Cir. 1982) 669

F.2d 201, 203–204 & fn. 3, cert. denied (1982) 457 U.S. 1117.)] The Ninth

Circuit, however, rejected this approach [below], [(United States v. Johns (9th Cir.

1983) 707 F.2d 1093, 1096)], and the Government has not pursued this issue on

appeal. We need not determine whether respondents possessed a legitimate

expectation of privacy in the packages.‖ (Johns, supra, 469 U.S. at p. 486.)

In citing footnote 13 of Sanders, the high court in Johns was referring to

the following dictum suggesting that there is no legitimate expectation of privacy

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in a package whose contents can be inferred from its outward appearance: ―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. Similarly, in some cases the contents of a package will

be open to ‗plain view,‘ thereby obviating the need for a warrant.‖ (Arkansas v.

Sanders, supra, 442 U.S. at p. 765, fn. 13 (Sanders).) The high court in Sanders

offered this dictum in order to draw a contrast between the example of a gun case

or burglary kit and the container at issue in that case: a green suitcase with no

outward indication of its contents. (See id. at pp. 755, 763–764.)

A four-justice plurality in Robbins v. California (1981) 453 U.S. 420

(Robbins), reversed on other grounds by United States v. Ross (1982) 456 U.S.

798, elaborated on the Fourth Amendment exceptions suggested in footnote 13 of

Sanders: ―The second of these exceptions,‖ i.e., where a package‘s contents are

open to plain view, ―obviously refers to items in a container that is not closed.

The first exception is likewise little more than another variation of the ‗plain view‘

exception, since, if the distinctive configuration of a container proclaims its

contents, the contents cannot fairly be said to have been removed from a searching

officer‘s view.‖ (Robbins, at p. 427 (plur. opn. by Stewart, J.).) The Robbins

plurality further elaborated: ―Expectations of privacy are established by general

social norms, and to fall within the second exception of the footnote in question a

container must so clearly announce its contents, whether by its distinctive

configuration, its transparency, or otherwise, that its contents are obvious to an

observer.‖ (Id. at p. 428.) The Robbins plurality concluded that the exception did

not apply on the facts there: ―If indeed a green plastic wrapping reliably indicates

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that a package could only contain marihuana, that fact was not shown by the

evidence of record in this case.‖ (Ibid.)

Although footnote 13 of Sanders was dicta, various courts have relied on it

to uphold warrantless searches of closed containers with distinctive configurations.

For example, in United States v. Banks (8th Cir. 2008) 514 F.3d 769 (Banks), the

court upheld the warrantless search of a gun case that was ―readily identifiable‖ as

such because it was ― ‗a molded plastic case, a configuration handgun

manufacturers commonly use when initially packaging a firearm for the end

consumer,‘ ‖ and ― ‗had the manufacturer‘s name [―PHOENIX ARMS‖], clearly

indicating an arms product, imprinted on the entire length of the front of the

case.‘ [Citation.]‖ (Id. at p. 775; see also United States v. Taylor (D.C. Cir. 2007)
497 F.3d 673, 680 [upholding warrantless search of gun case]; United States v.

Meada (1st Cir. 2005) 408 F.3d 14, 23 [distinctively configured gun case rendered

its contents ―unambiguous‖].) Other courts, however, have required a search

warrant where a gun case, though recognized by trained officers, was not readily

identifiable as such to lay observers. (See United States v. Gust (9th Cir. 2005)
405 F.3d 797, 803 (Gust) [―courts should assess the nature of a container primarily

‗with reference to ―general social norms‖ ‘ rather than ‗solely . . . by the

experience and expertise of law enforcement officers‘ ‖]; United States v. Bonitz

(10th Cir. 1987) 826 F.2d 954, 956 [same].)

Beyond gun cases and other single-purpose containers, federal courts of

appeals have divided on whether other indicia, apart from outward appearance,

may negate a reasonable expectation of privacy in the contents of a closed

container. For example, courts have disagreed on whether the label on a container

may justify a warrantless search. (Compare United States v. Morgan (6th Cir.

1984) 744 F.2d 1215, 1222 [―the labels on the bottles of pills made it ‗immediately

apparent‘ to the agents that the items were evidence of a crime‖] and United States

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v. Eschweiler (7th Cir. 1984) 745 F.2d 435, 439 [envelope ―said safe-deposit box

key, and had the name of the bank on it‖] with United States v. Villarreal (5th Cir.

1992) 963 F.2d 770, 776 [―a label on a container is not an invitation to search it‖

at least where the label does not indicate contraband].)

In addition, some cases have held that ― ‗the circumstances under which an

officer finds the container may add to the apparent nature of its contents‘ ‖ even

when the container has no distinctive outward appearance. (United States v. Davis

(4th Cir. 2012) 690 F.3d 226, 235; see id. at p. 236 [upholding warrantless search

of a bag containing incriminating bloodstained clothes under a hospital bed where

the officer knew ―it was the practice and procedure of the hospital to place a

patient‘s clothing in a bag on the shelf under his bed‖].) But this approach has

been criticized. (See Gust, supra, 405 F.3d at p. 802 [Sanders exception requires

container to be evaluated ―without regard for the context in which it is found or

the fact that the searching officer had special reasons to believe the container held

contraband‖]; United States v. Donnes (10th Cir. 1991) 947 F.2d 1430, 1438

[invalidating search of a camera lens case even though ―the officer‘s experience

and training could have led him to infer that the camera lens case contained

narcotics in light of the fact that it was found inside the glove with a syringe‖];

United States v. Sylvester (5th Cir. 1988) 848 F.2d 520, 525 [invalidating search of

a hunting box found at the scene of a suspected hunting offense because its

―contents cannot be inferred from simply looking at the box‖].) The latter cases

limited the Sanders exception to containers whose contents may be inferred

strictly from a container‘s outward appearance out of concern that ―the exception

could swallow the warrant requirement.‖ (Gust, at p. 802; see Banks, supra, 514

F.3d at p. 774 [Sanders ―exception is limited to those rare containers that are

designed for a single purpose‖].)

10

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There is similar conflict among the few courts that have addressed whether

the smell of contraband can alone negate a reasonable expectation of privacy in a

closed container. In United States v. Haley, supra, 669 F.2d 201, the Fourth

Circuit said that in addition to a container‘s outward appearance or distinctive

configuration, ―[a]nother characteristic which brings the contents into plain view

is the odor given off by those contents.‖ (Id. at p. 203.) The court upheld the

search of opaque plastic garbage bags on the ground that their ―distinctive

configuration together with the intense marijuana odor brought‖ their contents into

plain view. (Id. at p. 204.) But the court went on to say: ―We do not imply that

both distinctive configuration and odor are necessary to justify the search of the

containers. This Court has previously held that odor alone is sufficient cause to

search such containers as cardboard boxes.‖ (Id. at p. 204, fn. 3, citing United

States v. Sifuentes (4th Cir. 1974) 504 F.2d 845, 848 [interpreting ―plain view‖ to

mean ―obvious to the senses‖ through odor as well as sight].) The Eleventh

Circuit has also endorsed this view. (See United States v. Epps (11th Cir. 2010)
613 F.3d 1093, 1098 [―[W]e have upheld a warrantless search of closed, opaque

packages that reeked of marijuana.‖].)

By contrast, the Ninth Circuit in United States v. Johns rejected the

argument that because the smell of marijuana ―brought that contraband into plain

view,‖ customs officers had authority to search closed packages without a warrant.

(United States v. Johns, supra, 707 F.2d at p. 1096, revd. on other grounds by

Johns, supra, 469 U.S. at p. 487.) While acknowledging that the smell of

marijuana provided probable cause for a plain-view seizure of the packages, the

Ninth Circuit said ―[i]t is a different question . . . whether an opaque container that

is properly seized may be searched.‖ (United States v. Johns, 707 F.2d at

p. 1095.) ―Our precedent . . . directs that while the odor of marijuana smelled by

the agents would contribute to probable cause to believe that the container held

11

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contraband, a recognized exception to the warrant requirement was necessary to

justify a warrantless search. [Citation.] The odor and circumstances of the seizure

supplied the probable cause for a search warrant. They did not eliminate the need

for one.‖ (Id. at p. 1096, fn. omitted.) The court declined to apply the Sanders

exception because ―[t]he wrapped bales here did not announce their contents with

sufficient clarity to eliminate the need for a warrant.‖ (Id. at p. 1096, fn. 2.) The

Second Circuit has similarly rejected the contention that a distinctive odor can, by

itself, bring the contents of a closed container into plain view. (United States v.

Dien (2d Cir. 1979) 609 F.2d 1038, 1045.)

In considering this split of authority, it is important to note that although

courts have applied the Sanders dictum with varying results, the United States

Supreme Court has never itself applied the Sanders dictum to uphold a warrantless

search of a closed container on the theory that its outward appearance or any other

characteristic announced its contents. In California, only two published cases

have applied the Sanders dictum to uphold a warrantless search; neither addressed

the question before us. (See People v. Green (1981) 115 Cal.App.3d 259

[upholding search of a gun case]; People v. Johnson (1981) 123 Cal.App.3d Supp.

26 [upholding search of a suitcase where defendant told officers it contained

marijuana].) In People v. Chavers (1983) 33 Cal.3d 462 (Chavers), this court,

without citing Sanders, allowed an officer to open a plastic shaving kit after he

had lawfully ―lifted [it]‖ and ―felt the outline of a gun.‖ (Chavers, at p. 466.) But

Chavers, like Guidi, upheld the warrantless search in the context of exigent

circumstances. (Chavers, at p. 473 [the gun was ―an extremely dangerous

instrument posing significant and immediate risks both to the police and to

members of the public in the immediately surrounding area‖].)

Chavers relied on Guidi and on People v. Lilienthal (1978) 22 Cal.3d 891,

which upheld the warrantless seizure of a distinctively folded square piece of

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paper that fell from a suspect‘s wallet during a traffic stop. Noting the officer‘s

―experience in making numerous arrests where cocaine or heroin was transported

in paper bindles similar to the one dropped by defendant‖ (id. at p. 898), the court

in Lilienthal concluded that the officer was ―justified in making the plain view

seizure of the paper‖ (id. at p. 899). But Lilienthal did not address whether it was

lawful for the officer to open the paper after seizing it. Chavers also relied on

People v. Guy (1980) 107 Cal.App.3d 593, where the officer ―[u]pon lifting the

baggie . . . was able to conclude it contained a controlled substance.‖ (Id. at

p. 599.) But there, the plastic baggie was transparent, and ―[t]he contraband was

in plain sight.‖ (Id. at p. 600.)

The unsettled scope of the Sanders dictum and the great variety of factual

scenarios potentially implicating it should give courts substantial pause before

extending it to hold that a distinctive odor may negate any reasonable expectation

of privacy in the contents of a closed container. (See Flippo v. West Virginia

(1999) 528 U.S. 11, 13 [exceptions to the warrant requirement must be ―narrow

and well-delineated‖]; People v. Escudero (1979) 23 Cal.3d 800, 811 [―the courts

must ever be on their guard to keep [exceptions to the warrant requirement] within

firm and narrow bounds‖].) It may seem commonsensical to say that petitioner

here could not have had a reasonable expectation of privacy in a sealed package

that reeked of marijuana and turned out to contain marijuana. But it is a cardinal

Fourth Amendment principle that ―the ‗reasonable person‘ test presupposes an

innocent person.‖ (Florida v. Bostick (1991) 501 U.S. 429, 438.) And it is not

difficult to contemplate situations where the smell of marijuana emanating from a

closed container does not clearly or accurately announce its contents.

For one thing, the record here does not indicate whether the package

smelled of burned or unburned marijuana. Yet courts, including ours, have

recognized ―a commonsense distinction between the smells of burnt and raw

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marijuana.‖ (United States v. Downs (10th Cir. 1998) 151 F.3d 1301, 1303; see

Wimberly v. Superior Court (1976) 16 Cal.3d 557, 571–572 (Wimberly); State v.

Larson (Mont. 2010) 243 P.3d 1130, 1142; Bailey v. State (Md. 2010) 987 A.2d

72, 91; Com. v. Waddell (Pa.Super.Ct. 2012) 61 A.3d 198, 217–218; Meek v. State

(Ind.Ct.App. 2011) 950 N.E.2d 816, 818; Taylor v. State (Fla.Dist.Ct.App. 2009)

13 So.3d 77, 79.) Because ―the smell of burnt marijuana is generally consistent

with personal use of marijuana‖ (Downs, at p. 1303), the smell does not

necessarily indicate the presence of marijuana when it emanates from a closed

container. As is familiar to anyone who has sat at a bar, in a lounge, or on an

airplane before the widespread advent of smoking prohibitions, the permeation of

smoke into clothes, purses, briefcases, backpacks, or other articles can leave a

strong and lasting odor. Similarly, an object or person present in a room, car, or

other space where marijuana is burned may acquire a distinctive smell, even

though the object or person does not hold marijuana.

Prior to the high court‘s decisions expanding the scope of automobile

searches (see maj. opn., ante, at pp. 10–16), we held that ―the odor of burnt

marijuana‖ supported the reasonableness of searching a car‘s interior for evidence

of ―casual‖ or ―personal‖ use of marijuana, but did not by itself provide reasonable

grounds to search the vehicle‘s trunk for raw marijuana to be transported or sold.

(Wimberly, supra, 16 Cal.3d at pp. 572–573.) In Wimberly, we ―differentiate[d]

between the casual user and the dealer of narcotics‖ and explained that the smell

of burned marijuana provided reason to suspect the former but not the latter. (Id.

at p. 572; accord, United States v. Nielsen (10th Cir. 1993) 9 F.3d 1487, 1491

[smell of burnt marijuana in car‘s passenger compartment did not provide

probable cause to believe the car‘s trunk contained marijuana].) As these cases

suggest, the smell of burned marijuana emanating from a sealed package may

indicate that the package or its contents have been in a place where marijuana was

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consumed. But it does not necessarily indicate that the package contains

marijuana. At the very least, it is questionable whether the smell ―so clearly

announce[s] its contents‖ as to render those contents ―obvious to an observer‖ and

thereby negate any reasonable expectation of privacy. (Robbins, supra, 453 U.S.

at p. 428 (plur. opn.).)

Moreover, even assuming that an ordinary observer can distinguish

between raw and burned marijuana, the fact that a sealed package smells of raw

marijuana does not necessarily reveal that the package contains marijuana. Like

the smell of burned marijuana, the smell of unburned marijuana may be due to a

transferred or residual odor. In People v. Gale (1973) 9 Cal.3d 788 (Gale), the

―defendant‘s clothing . . . smelled strongly of marijuana‖ (id. at p. 792), and ―both

officers testified they detected a strong odor of fresh marijuana apparently

emanating from defendant‘s person.‖ (Id. at p. 793, fn. 4.) But ―[a] search of

defendant‘s person disclosed . . . no marijuana or other contraband.‖ (Id. at

p. 792; see United States v. Quintana (M.D.Fla. 2009) 594 F.Supp.2d 1291, 1295

[duffel bag ―smelled strongly of raw marijuana‖ but police ―found no marijuana

inside the bag‖]; State v. Davis (La.Ct.App. 1991) 580 So.2d 1046, 1048 [police

―detected a strong odor of raw marijuana during the vehicle search‖ but ―found no

marijuana‖].) As these examples show, it is not difficult to conjure scenarios in

which the smell of marijuana emanating from an otherwise nondescript package

does not reveal its contents with a level of clarity akin to plain view.

It may be possible for a marijuana odor emanating from a closed container

to be so distinctive and intense that no one could have a reasonable expectation of

privacy in the container‘s contents. As today‘s opinion notes, the record in this

case does not permit us to resolve that issue one way or the other. (See maj. opn.,

ante, at p. 31.) The discussion above suggests there are substantial hurdles that

15

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such a plain smell doctrine would have to overcome to justify departing from the

clear, administrable rule that opening a closed container requires a search warrant.

My observations cast no doubt on the settled proposition that the smell of

marijuana can establish probable cause to search and, in the context of an

automobile search or exigent circumstances, can provide a sufficient basis to

proceed without a warrant. (See, e.g., Cook, supra, 13 Cal.3d at pp. 668–670;

Gale, supra, 9 Cal.3d at p. 794; Mann v. Superior Court (1970) 3 Cal.3d 1, 7.)

But it is an altogether different proposition to contend that the smell of marijuana

can be sufficient by itself to negate any reasonable expectation of privacy in a

closed container. Although the high court has suggested that there might be no

legitimate expectation of privacy in a container whose ―outward appearance‖

(Sanders, supra, 442 U.S. at p. 765, fn. 13) or ―distinctive configuration‖

(Robbins, supra, 453 U.S. at p. 428 (plur. opn.)) clearly announces its contents,

neither the high court nor this court has upheld a warrantless search solely on the

basis of Sanders‘s posited expansion of the plain view doctrine. Lower courts

have not agreed on the scope or proper application of the Sanders dictum, and the

breadth of circumstances potentially implicating it is cause for caution. Moreover,

it is questionable whether the smell of marijuana alone can reveal the contents of a

closed container so clearly as to eliminate any legitimate privacy interest.

In sum, there is ample reason for courts, including ours, to hesitate before

accepting a novel legal theory that would allow the search of a closed container to

proceed without a warrant based solely on the smell of contraband.

LIU, J.

I CONCUR: WERDEGAR, J.

16

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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Robey v. Superior Court
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 200 Cal.App.4th 1
Rehearing Granted

__________________________________________________________________________________

Opinion No. S197735
Date Filed: June 27, 2013
__________________________________________________________________________________

Court: Superior
County: Santa Barbara
Judge: Edward H. Bullard

__________________________________________________________________________________

Counsel:

Raimundo Montes De Oca, Public Defender, and Patricia Dark, Deputy Public Defender, for Petitioner.

Stephen P. Lipson, Public Defender (Ventura) and Michael C. McMahon, Chief Deputy Public Defender,
for California Public Defenders Association and Public Defenders of Ventura County as Amici Curiae on
behalf of Petitioner.

No appearance of Respondent.

Joyce E. Dudley, District Attorney, and Michael J. Carrozzo, Deputy District Attorney, for Real Party in
Interest.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C.
Hamanaka, Assistant Attorney General, James William Bilderback II and Thomas C. Hsieh, Deputy
Attorneys General, as Amici Curiae on behalf of Real Party in Interest.

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Counsel who argued in Supreme Court (not intended for publication with opinion):

Patricia Dark
Deputy Public Defender
County Courthouse, 3rd Floor
Santa Barbara, CA 93101
(805) 568-3494

Michael J. Carrozzo
Deputy District Attorney
1112 Santa Barbara Street
Santa Barbara, CA 93101
(805) 568-2399

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Petition for review after the Court of Appeal granted a petition for peremptory writ of mandate. This case presents the following issues: (1) Could police conduct a warrantless search of a package smelling of marijuana under a "plain smell" exception to the warrant requirement? (2) Could police conduct a warrantless search of the package because the mobility of the box created exigent circumstances even after an officer seized the package from a common carrier and held it at the police station?

Opinion Information

Date:	Citation:	Docket Number:
Thu, 06/27/2013	56 Cal.4th 1218, 302 P.3d 574, 13 Cal. Daily Op. Serv. 6790, 2013 Daily Journal D.A.R. 8422 Decided June 27, 2013	S197735

Opinion Authors
Opinion	Justice Goodwin Liu
Concur	Justice Goodwin Liu

Brief Downloads
Real Party in Interest, The People, Petition for Review.pdf (1064825 bytes)
Real Party in Interest, The People, Opening Brief on the Merits.pdf (1016403 bytes)
Petitioner’s Answer Brief on the Merits.pdf (1144153 bytes)
Real Party in Interest, The People, Reply Brief on the Merits.pdf (577880 bytes)

If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website

May 31, 2014 Annotated by Anita Jwa

FACTS A FedEx employee found out a package smelling of marijuana and reported it to the police. The police seized the package and opened it at the police station without a warrant for either the seizure or search of the package. 44 grams of marijuana were found in the package. Three days later, defendant/petitioner Kewhan Robey was arrested and charged with possession of marijuana for sale and with the sale or transportation of marijuana when he was at the same FedEX location with a packing slip of the seized package to inquire about the delivery of the package. PROCEDURAL HISOTRY The superior court of Santa Barbara County denied petitioner's motion to suppress evidence relying on exigent circumstances and inevitable discovery. Defendant petitioned for writ of mandate. The Court of Appeal granted defendant's petition for writ of mandate and ordered the superior court to grant the motion to suppress. The Office of the Santa Barbara County District Attorneys sought review, and the Supreme Court granted review. ISSUES (1) Whether the mobility of the package constituted an exigent circumstance permitting the officers to conduct a warrantless search after the package was already seized; and (2) Whether the plain smell of marijuana constitutes an exception to the warrant requirement HOLDING (1) Although a container's mobility in shipment may constitute exigent circumstances sufficient to justify a warrantless seizure, it cannot alone justify a search of the container once it has been seized. (2) The District Attorney forfeited the plain smell argument by failing to raise it in opposition to petitioner's motion to suppress in the superior court. ANALYSIS Majority Opinion (1) In Chambers v. Maroney (399 U.S. 42 (1970)), the U.S. Supreme Court stated that there is a long adhered rule that a warrantless search of an automobile is permissible so long as the police have probable cause to believe the car contains evidence or contraband. This exception to the warrant requirement is justified by the ease with which an automobile might be moved out of the jurisdiction before a warrant can be obtained (Chambers, 399 U.S. at 48, 51, 90). In People v. McKinnon, the Supreme Court of California court extended this rule by stating that because “all goods or chattels consigned to a common carrier for shipment” are “no less movable than an automobile,” “the reasons for the rule permitting a warrantless search of a vehicle upon probable cause are equally applicable to the search of such a chattel” (7 Cal.3d 899, 909 (1972)). According to McKinnon, a package consigned for shipment falls under the same rule as an automobile: its mobility renders it subject to a warrantless search either on the spot or at the station house. However, during the more than four decades since Chambers was decided, the U.S. Supreme Court has never extended the rationale of that decision in the manner that McKinnon did. To the contrary, subsequent cases treat Chambers as part of line of authority specifically addressing automobile searches, and the U.S. Supreme 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. (See United States v. Chadwick, 433 U.S. 1 (1977); Arkansas v. Sanders, 442 U.S. 753 (1979); United States v. Ross, 456 U.S. 798 (1982); California v. Acevedo, 500 U.S. 565 (1991)). Outside the context of an automobile search, the U.S. Supreme 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. Thus, McKinnon is no longer to be followed on this point. A container consigned for shipment is subject to the same rule as other containers outside of the specific and well-delineated context of an automobile search: “[e]ven 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” (United States v. Jacobsen, 466 U.S. 109, 114 (1984)). In the present case, the mobility of the package constituted exigent circumstances justifying the police’s seizure of the FedEx without a warrant so long as it had probable cause to believe it contained contraband. However, since seizure of the package by the police negated its mobility, absent some other exception to the warrant requirement, the Fourth Amendment required the police to obtain a search warrant before opening the package after it had been seized. (2) In addition to invoking exigent circumstances, the District attorney argued that the plain smell of marijuana emanating from the package was, by itself, sufficient justification for the warrantless search, drawing an analogy to the dictum from the U.S. Supreme Court’s decision in Sanders (Sanders at 765, fn. 13): “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.” However, since Sanders, neither the United States Supreme Court nor the Supreme Court of California 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. Lower courts also have not agreed on the scope or proper application of the Sanders dictum. 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 Supreme Court of California has cautioned that appellate courts should not consider a Fourth Amendment theory for the first time on appeal when “the People's new theory was not supported by the record made at the first hearing and would have necessitated the taking of considerably more evidence” or when “the defendant had no notice of the new theory and thus no opportunity to present evidence in opposition” (Green v. Superior Court, 40 Cal.3d 126 (1985)). In the present case, the evidence on the issue of smell was not extensive. Because the District Attorney did not raise the plain smell theory at the trial level, neither the District Attorney nor the defense offered evidence that provided any depth or detail concerning the intensity or other qualities of the smell detected by the officers. Nor does the record contain much information about the extent or limitations of the officers' training or experience in detecting marijuana through the sense of smell. In light of this limited record, the Supreme Court of California decline to resolve whether the smell of marijuana can alone justify the warrantless search of a closed container and, if so, under what circumstances. Dissenting Opinion The U.S. Supreme Court in Sanders has suggested that there might be no legitimate expectation of privacy in a container whose “outward appearance” (Sanders, at 765, fn. 13) clearly announces its contents. However, the unsettled scope of this dictum in the lower courts and the great variety of factual scenarios potentially implicating it should give courts substantial pause before extending it to hold that a distinctive odor may negate any reasonable expectation of privacy in the contents of a closed container. Moreover, it is questionable whether the smell of marijuana alone can reveal the contents of a closed container so clearly as to eliminate any legitimate privacy interest. For example, it is not difficult to conjure scenarios in which the smell of marijuana emanating from an otherwise nondescript package does not reveal its contents with a level of clarity akin to plain view. Thus, there is ample reason for courts to hesitate before accepting a novel legal theory that would allow the search of a closed container to proceed without a warrant based solely on the smell of contraband. KEY RELATED CASES Robey v. Superior Court, 132 Cal.Rptr.3d 510 (2013): caselaw.lp.findlaw.com/data2/californiastatecases/B231019.PDF People v. McKinnon, 7 Cal.3d 899 (1972): https://scocal.stanford.edu/opinion/people-v-mckinnon-22855 Chambers v. Maroney, 399 U.S. 42 (1970): http://scholar.google.com/scholar_case?case=2193054308612397767&q=Chambe... United States v. Chadwick, 433 U.S. 1 (1977): http://scholar.google.com/scholar_case?case=7941794401088685966&q=United... Arkansas v. Sanders, 442 U.S. 753 (1979): http://scholar.google.com/scholar_case?case=2198646416645971542&q=Arkans... United States v. Ross, 456 U.S. 798 (1982): http://scholar.google.com/scholar_case?case=16486997063826411961&q=Unite... United States v. Jacobsen, 466 U.S. 109, 114 (1984): http://scholar.google.com/scholar_case?case=16573686290496533405&q=Unite... California v. Acevedo, 500 U.S. 565 (1991): http://scholar.google.com/scholar_case?case=16692558659390304073&q=Calif... Green v. Superior Court, 40 Cal.3d 126 (1985): http://law.justia.com/cases/california/cal3d/10/616.html TAGS California, Criminal Law, Fourth Amendment, Evidence, Search, Seizure, Warrantless Search, Warrantless Seizure, Automobile, Exigency Circumstances, Mobility, Outward Appearance, Marijuana, Smell, Odor, Plain Smell LEGAL DEFINITION Writ of Mandate: “A judicial command directed to an officer of the court to enforce a court order.” BLACK’S LAW DICTIONARY 1105, 1848 (10th ed. 2014). Motion to Suppress: “A request that the court prohibit the introduction of illegally obtained evidence at a criminal trial.” BLACK’S LAW DICTIONARY 1172 (10th ed. 2014). Annotation: Anita Jwa