ROBEY v. S.C. (PEOPLE)

Real Party in Interest, The People, Petition for Review

Cal.November 28, 2011

LIU, J. 7 IN THE SUPREME COURTOF THE STATE OF CALIFORNIA KEWHAN ROBEY, | Om & he} fis wi gelee! Petitioner, —Vv:. THE SUPERIOR COURT OF SANTA Case No. S ~ BARBARA COUNTY, Respondent; THE PEOPLE, Real Party in Interest. Second Appellate District, Division Six, No. B231019 Santa Barbara County Superior Court No. 1349412 The Honorable Edward Bullard, Judge PETITION FOR REVIEW JOYCE E, DUDLEY District Attorney of Santa Barbara MICHAEL J. CARROZZO (161078) Deputy District Attorney 1112 Santa Barbara Street Santa Barbara, CA 93101 Telephone: (805) 568-2399 Facsimile: (805) 560-1077 E-mail: mcarrozzo@co.santa- barbara.ca.us Attorneysfor Respondent RECE acme COURS WED TABLE OF CONTENTS TABLE OF AUTHORITIES... 00... 0c cecceccce cece cceeceeee PETITION FOR REVIEW ....0.0... 00 cc cccccceccccuccceceucee. ISSUE PRESENTED. ...0.00... 00.000 cc cccccceeceeccccueceeseuecces. STATEMENTOF THE CASE... 0... cccccceeccccecccceeceeees REASON FOR GRANTINGTHEPETITION................... I. The Issues for Review are Important andReview is Needed to Secure Uniformity of Decision...... A. The Court of Appeals decision Fails to Apply Current Fourth AmendmentLaw................... B. The Court ofAppeal Decision Creates Conflict With Published Authority and Treatises........... I. Mobile Nature of Package Justify the Seizure and Search of a Package that Probable Cause Shows May Contain Controlled Substance..................... Ill. The Search of the Package was Supported by Probable Cause «0.00.00... co.cc ececeece sce ceecusecevenee CONCLUSION...ccc cecceeccenecececcecccececeues CERTIFICATION OF COMPLIANCE.................... PROOFOF SERVICE...........0..ccccccecsceeeceesceecee, COURT OF APPEAL DECISION............00cccccccceeee 13 14 15 16 TABLE OF AUTHORITIES CASES Carroll v. United States, (1925) 267 U.S.132...cccccccceceecececeuee 2,3 Chambers v. Maroney (1970) 399 U.S. 42.0... ..ccecccceccecceceececes 2,3,7,8 Guidi v. Superior Court (1973) 10 Cal.3d 1.....cccccccccececceccecee 4,5,10 In re Rudy F. (2004) 117 Cal.App.4th 1124.00.00... .ceccceeeeceee eee 9 Johnson v. United States (1948) 333 U.S. 10......ccccccccccecececece 1] People v. Benjamin (1999) 77 Cal.App.4th 264...........0.0.c0ec00. 9,12 People v. Bock Leung Chew (1956) 142 Cal.App.2d 400........... 1] People v. Christensen, (1969) 2 Cal. App. 3d 546..............0005. 8,10 People v. Cook (1975) 13 Cal.3d 663.000.0000. cccccccceccecccecuceeees 2,5,9 People v. Divito (1984) 152 Cal.App.3d 11.0.0... ccccecceceeecce eee 1] People v. Duncan (1986) 42 Cal.3d 91.0.0... 0 cccccececcececcccevcecece 1] People v. Gale, (1973) 9 Cal. 3d 788..........cccccecceeceeseeeceuseens 2,3,9 People v. Marshall (1968) 69 Cal.2d 51.0.0... 0... ccccccccceceecceceeee 455 People v. Mayberry (1982) 31 Cal.3d 335.00... 00. ccccececceeecee cece 1] People v. McKinnon (1972) 7 Cal. 3d B99ccc ceeec ccna eens 4,5,6 People v. Pereira (2007) 150 Cal. App. 4th 1106.................0.. 12 People v. Racklin (2011) 195 Cal.App.4th 872...........c.ccccceceus 10 People v. Shandloff(1985) 170 Cal.App.3d 372.........c.0cceceeee. 1] People v. Yackee (1984) 161 Cal. App.3d 843............ccccccceeees 6 United States v. Angelos qo" Cir. 2006) 433 F.3d 738............ 9 United States v. Clayton (8" Cir. 2000) 210 F.3d 841.........06.. 9 United States v. Haley (4 Cir. 1982) 669 F.2d 201........0.0.0... 9 United States v. Jacobson (1984) 466 US 109.00... 0. ccc cc cceeccee eee 6 United States v. Johns (1985) 469 U.S. 478.0... cc ccccceccceseccceeeee 9 United States v. Place (1983) 462 U.S. 696.00... ccc. ccccccccceseceees 8 li STATUTES Health and Safety Code, § 1135920000000 cecceccecce cee cceceeceuees 2 Health and Safety Code, § 11360.......... 00. cccceccsecceeceeceucceeces 2 Cal Rules of Ct 8.500.000... cccccccccccceseeceusseceuscuseecerereeens 1 MISCELLANEOUS California Judges Benchbook Search and Seizure (CEB) ........... 4 Witkin & Epstein, Cal. Criminal Law (3d Ed. 2000)............0008. 5 LaFave, 3 Search & Seizure § 5.5 (4th1 8 ili IN THE SUPREME COURT OF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, Court of Appeal . No. B231019 Superior Court No. 1349412KEWHAN DONELLEROBEY, Defendant and Petitioner. Appeal from the Superior Court of Santa Barbara County The Honorable Edward Bullard, Judge PETITION FOR REVIEW TO THE HONORABLETANI CANTIL-SAKAUYE, CHIEF JUSTICE, AND TO THE HONORABLE ASSOCIATE JUSTICES OF THE CALIFORNIA SUPREME COURT: The People of the State of California respectfully petition this Honorable Court to grant review, pursuant to California Rules of Court, rule 8.500, of the published decision of the California Court of Appeal, Second Appellate District, Division Six, filed on October 24, 2011. A copy of the court’s decision is attached to this petition. ISSUES PRESENTED 1. Whether warrantless seizures of highly mobile packages from commoncarriers are constitutional, if based upon probable cause? 2. Whetherthe “plain smell” of marijuana from a container sensed by police officer is an exception to the warrant requirement? STATEMENT OF THE CASE On November17, 2010, following a preliminary hearing in the Santa Barbara County Superior Court, Petitioner was held to answer for charges of possession of marijuana for sale (Health and Saf. Code, § 11359) and sale or transportation of marijuana (Health and Saf. Code, § 11360, subd. (a)). On January 20, 2011, the Superior Court conducted a hearing on Petitioner’s motion to suppress evidence and denied that motion. On February 18, 2011, Petitioner filed a petition for writ of mandate in the Court of Appeal. On March 3, 2011, the Court of Appealsent a letter to the Santa Barbara County District Attorney’s Office, requesting that the People submit an informal oppositionto the petition for writ of mandate. On April 7, 2011, the Court of Appeal issued an order to show cause. The Office of the Attorney General submitted an amicus curiae brief and the matter was heard on August 18, 2011. The Court of Appeal issued a published decision on October 24, 2011. The decision failed to properly follow prevailing state and federal case law, e.g., People v. Cook (1975) 13 Cal.3d 663, People v. Gale, (1973) 9 Cal. 3d 788, 794, Chambersv. Maroney (1970) 399 U.S. 42, Carroll vy. United States, (1925) 267 U.S. 132. Likewise the Court of Appeal has published a decision contradicting treatises, misconstrued other California decisional, to wit, and authority and failed adhere to federal standards on sensory use for probable cause. Respondent did not file a Petition for Rehearing, but rather hasfiled the instant Petition for Review. REASONS FOR GRANTINGTHE PETITION 1. THE ISSUES FOR REVIEW ARE IMPORTANT AND REVIEW IS NEEDED TO SECURE UNIFORMITY OF DECISION A. The Court of Appeals decision Fails to Apply Current Fourth Amendment Law Prevailing case law holds, where law enforcementdetects narcotics by smell from a highly mobile object, law enforcement may seize and search the object. The key to this line of cases is the interaction of the sensing of the narcotic via the senses combined with its placement in a highly mobile object. In People v. Gale, the California Supreme Court concluded, when an officer smelled marijuana from a vehicle that law enforcement officer has “probable causeto believe ... that contraband may be present.” (People v. Gale, (1973) 9 Cal. 3d 788, 794, 511 P.2d 1204). The Court then held, that when the marijuana waslocated “...in an automobile parked in a publiclot - unlocked, accessible, and readily movable - the same probable cause would have justified the subsequent search of each vehicle under the rationale of Carroll v. United States, 267 U.S. 132 69 L.Ed. 543, 45 S.Ct. 280, 39 A.L.R. 790, andits progeny.” Ibid. The Gale case is significant in that it provides a close analogy to the instant case as to a highly mobile object containing a narcotic that is readily sensed with smell that is in a public location. When the holding is combined with Chambers v. Maroney (1970) 399 U.S. 42, 52, it reveals that law enforcement may search the mobile object either at the scene or at the police station. Neither location matters for a Fourth Amendmentanalysis. Likewise, the Court of Appeals fails to correctly apply the rationale of People v. McKinnon (1972) 7 Cal. 3d 899. The Petitioner contendsthat People v. McKinnon does not require a search warrant, contrary to the decision issued by the Court of Appeal. The McKinnon Court expressly holds that a warrant is not required to search a package where probable cause exists. (Ibid at 916-917). B. The Court of Appeal Decision Creates Conflict with Published Authority and Treatises Petitioner contends black letter treatise law holds that plain smell is an exception to the warrant requirement under the Fourth Amendmentakin to plain view. Forinstance, California Judges Benchbook Search and Seizure, 2™ edition 2002 (CEB), Published by Judicial Counsel of California, lists “Plains Smell”, under the heading of plain view, Section 5.13. In the benchbook guide, it simply states, “plain view principles apply by analogy to other senses other, such as: Plain smell ...” The bench guide then goes on to list several of the authorities Petitioner has likewise submitted to the Court. Yet, the Second District Court of Appeal states their reluctance to find a plain smell in this case noting, “We recognize that a number of exceptions exist, but we are wary of creating another one underthefacts of this case.” (COA Decision p.7). The Court of Appeal’s interpretation of prior decisional authority in California was in error. The Court of Appeal’s interpretation of Guidi v. Superior Court (1973) 10 Cal.3d 1 and People v. Marshall (1968) 69 Cal.2d 51, that the California Supreme Court has rejected the plain smell exception to the warrant requirementis incorrect. The Marshall Court held that a warrantless search on the basis of odor alone was unconstitutional, and that “plain smell” is not equivalent to “plain view.” (People v. Marshall, supra, 69 Cal.2d at p. 59.) However as Witkin points out, this portion ofMarshall has beenoverruled by People v. Cook, supra, 13 Cal.3d at p. 668, fn. 4. (4 Witkin & Epstein, Cal. Criminal Law (3d Ed. 2000) Illegally Obtained Evidence § 286, pp. 947-950 & id. (2010 supp.) p. 308 [noting Marshall has been repudiated and citing several treatises providing that warrantless search based on odorofnarcoticsis constitutional].) Further, Guidi is not precedent rejecting the plain smell doctrine. Rather, Guidi constitutes precedent which effectively overrules Marshall, since a majority of the Court (three Justices plus Justice Mosk) agreed with that part of Justice Mosk’s concurring opinion stating that smell has “equal weight”as sight in determining probable cause to search and seize. (Guidi v. Superior Court, supra, 10 Cal.3d at p. 20; see People v. Cook, supra,, 13 Cal.3d at p. 668, fn. 4. Therefore, the result in Guidi was a pro tanto overruling ofMarshall as to the particular issue. Therefore, this Petition for Review raises issues that the California Supreme Court needsto address. The ongoingbattle against criminals that grow marijuana in California and ship it out of state through common carriers warrants that the California Supreme Court clarify whether law enforcement may seize and search a package turned over to a common carrier which plainly smells of a specific controlled substance. II. MOBILE NATURE OF PACKAGEJUSTIFY THE SEIZURE AND SEARCH OF A PACKAGE THAT PROBABLE CAUSE SHOWS MAY CONTAIN CONROLLED SUBSTANCE Law enforcement in seizing a commoncarrier package, smelling the marijuana from the package acted appropriately under the law. McKinnon states that “when the police have probable cause to believe a chattel consigned to a commoncarrier contains contraband, they must beentitled 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 owneror by the consignee.” People v. McKinnon (1972) 7 Cal. 3d 899 is stood good law when read in conjunction with other proceeding authority. It has not been overruled by People v. Yackee (1984) 161 Cal. App.3d 843 and United States v. Jacobson (1984) 466 US 109. In fact, those decisions support the People’s position in this case. In People v. Yackee, the court held that an airline employee’s search of a suitcase and uncovering of a Suspicious baggie, whichlead to a police seizure, was legal. A box consigned to a common carrier for shipment to another destination is a “thing readily moved”and not a “fixed piece of property.” To be sure, such a box has neither wheels nor motive power; but these features of an automobile are legally relevant only insofar as they makeit movable despite its dimensions. A box, which is a fraction ofthe size and weight of an automobile, is movable without such appurtenances.It is also true that a box ortrunk,as distinguished from an automobile, may serve the double purpose of both storing goods and packaging them for shipment. But wheneversuch a box is consigned to a commoncarrier, there can be no doubtthatit is intended,in fact, to be moved. In this case, law enforcement relied on McKinnon and complied with its mandates by searching the item once they had probable causeto believe marijuana was located inside the package. The search was even less intrusive than the extensive manipulation of the package permitted by Jacobsen. The court in Yackee and Jacobsen, both concludedthatthetrial court did not abuse its discretion in denying defendant's motionto suppress. Therefore, People v. McKinnon, supra is still good law and has been followed by numerous courts. In its decision, the Court of Appeal cited McKinnon to hold that a search warrant was required. Ironically, this portion of the People v. McKinnon, supra, holds the exact opposite, that packages may be search where probable cause exists. In this case, the probable cause that existed was the plain and obvious smell of marijuana emanating from the box that was about to be shipped by commoncarrier. The Court of Appeal concedes that law enforcement had probable cause to search the package. However, the Court of Appeal’s logic is that by moving the package to a police station, the officers somehow lost probable cause to search the package. Thisis contrary to binding United States Supreme Court authority under Chambers v. Maroney, (1970) 399 U.S. 42, 65. The fact that the package was very mobile and potentially valuable created exigent circumstances for the officers to remove the package from the Federal Expressoffice. In Chambers v. Maroney (1970) 399 U.S. 42, the United States Supreme Court held where there is probable cause to search an automobile, it may be searched with or without a warrant duetoits mobility. The car in question was seized bythe police, impoundedat the police station, and then searched without a warrant backatthe police station. The Court considered the question of whether a search later at the police station without a warrant wasstill permitted based on the characteristic of mobility. The Court held that the warrantless search was constitutional. Law enforcementofficers could not leave the package inside the store because the marijuana was mobile and created a known danger. Therefore, the mobility of the marijuana package created exigent circumstances which allowed the search and seizure of the package based on the probable cause acquired by law enforcement. The probable cause consisted of the statement of witnesses that marijuana was believed to be inside the package, the odor observed by multiple officers and the inaccurate information contained on the Federal Express shipping label. HI. THE SEARCH OF THE PACKAGE WAS SUPPORTED BY PROBABLE CAUSE The Court of Appeal decision invited this Court to rule on the issue of plain smell by stating “Does the passage of 43 years since Marshall was decided warrant (pardon the expression) reconsideration of Mosk’s view?” (COADecision p. 6) The decision went even further by suggesting that the logic of the People’s argument was sound, but the Court of Appeal was restrained by precedent: The People argue that no distinction exists between something that is apparent to the sense of smell and something that is apparent to the sense of sight. We comprehend the logic of the argument. But we cannot hold the seizure proper. Our Supreme Court has not endorsed this view when probable cause is based. on odor alone. (COA Decision p. 5) As another Court of Appeal succinctly noted, “Marshall does not state a rule applicable to the use of smell in determining probable cause to believe a crime has been committed or contraband is present. (People v. Christensen, (1969) 2 Cal. App. 3d 546, 548-49. The Court of Appeal’s reliance on Marshall and it’s holding is misplaced in denying that odor could be a basis for probable cause anda search of the package. Respondent, notes that the Court has failed to account for critical facts of this case: the smell of marijuana emanating from a mobile object, i.e. a package. The “plain view” doctrine, as applied to containers, has been held applicable to “plain smell” situations, justifying a warrantless search where the incriminating odoris attributed to a container. (3 LaFave, Search & Seizure, § 5.5(f), (4 ed.) p. 253.). The United States Supreme Court has recognized the “plain smell” doctrine in United States v. Place (1983) 462 U.S. 696. Numerous courts have held that the strong odor of marijuanais sufficient to establish probable cause to search. (United States v. Johns (1985) 469 U.S. 478, 482; People v. Gale (1973) 9 Cal.3d 788) This is true whether the odor is of fresh marijuana or burnt marijuana. (People v. Benjamin (1999) 77 Cal.App.4th 264, 273-274.) Based upon odor alone, an officer may conduct an immediate search of an automobile from which the odor is emitting or conducta search incidentto an arrest of persons associated with the odor. (People v. Cook, supra, 13 Cal.3d 663). Several federal courts have held that a warrantless search of a containeris lawful based solely on the fact the container has a strong smell of marijuana. United States v. Angelos qo" Cir. 2006) 433 F.3d 738, 747, held that plain smell doctrine is “simply a logical extension” of the plain view doctrine. The Court of Appeal failed to follow a long line of federal case law as to the plain “smell” rule under federal law as required by Proposition 8. Since adoption of Proposition 8, defendant's right to object to seized evidence is controlled by federal law. (In re Rudy F. (2004) 117 Cal.App.4th 1124.) Respondent appropriately cited to a number of federal cases holding probable cause to conduct a warrantless search based on the officers’ observations of smell. (E.g., United States v. Angelos (10" Cir. 2006) 433 F.3d 738, 747 [upholding search and seizure based on smell of marijuana and evident residue on duffle bags]; United States v. Clayton (8" Cir. 2000) 210 F.3d 841, 845 [noting that officer executing arrest warrant "quickly developed probable cause for a search based on his immediate perception of an odor associated with methamphetamine production"); United States v. Haley (4" Cir. 1982) 669 F.2d 201, 203 [holding that the odor emanating from a container in an automobile may Justify invocation of the "plain view"doctrine] as cited in the Court.of Appeal decision). In the face of this at least widespread authority, the Court of appeal noted that they were “distinguishable”and therefore not authoritative. The Court of Appeal though declined to state with any detail in what meaningful manner that any of these cases were distinguishable from the instant case of still good law case of People v. Christensen (1969) 2 Cal.App.3d 546, 548-549. Petitioner disagrees though that these cases were not in direct opposition to California law as the decision suggests. However,if they were in opposition, the court would have been obligated to follow the federal standard: “Federal constitutional standards govern review of issues related to the suppression of evidence seized by the police. (People v. Racklin (2011) 195 Cal.App.4th 872.) In rejecting the Petitioner’s position, the Court of Appeal misapplied the holding in Guidi v. Superior Court (1973) 10 Cal.3d 1. Chief Justice Wright wrote the main opinion which was joined by two other justices, holding that under the “particular circumstances”of that case, an officer’s seizure of a bag was reasonable. In a footnote, Chief Justice Wright “emphasized”that the odor of contraband corroborated prior information, and statedthat: We do not here hold that only the smell of contraband and nothing more would justify seizing a supposed container of the contraband, nor do we mean to accord “plain smell” a place in Fourth Amendmentdoctrine equivalent to that occupied by “plain sight.” We recognize that the scent of contraband within a residence may well provide, of itself, probable cause to search, and when conjoined with exigent circumstances may justify a warrantless search for and seizure of that contraband. Guidi v. Superior Court (1973) 10 Cal.3d 1, p. 17, fn. 18.) Footnote 18 of Chief Justice Wright’s opinion is not binding precedent. Only a total of three Justices concurred in Chief Justice 10 Wright’s Opinion. Indeed, a majority of the Justices specifically disagreed with footnote 18’s language that the smell of contraband alone could not Justify a warrantless search of a container. Justice Mosk wrote a separate concurring opinion, joined by three other Justices, criticizing footnote 18 (/d. at pp. 19-20 [conc.opn. of Mosk, J.]) andstating, in relevant part: I insisted then, and continue to believe, that the sense of smell, and indeed all the senses, may be employed, not merely in confirmation of what is already visible, but in equal weight with the sense of sight in the determination of probable cause to search and seize. (Ibid. at p. 20.) Accordingly, under the authorities set forth above, law enforcement may conduct a warrantless search based solely on the plain smell, in the absence of any exigent circumstances. In this case, the officers were dispatched to the location based on a citizen complaint and had a lawful right to be at the location when the plain “view” observation was made by law enforcement. It is clear that a citizen (Federal Express employee) conducted the initial seizure and removed the package from the “shippingline.” Oncethe police arrive, the long standing doctrine that an observation of contraband in plain view provides probable causeto arrest applies. There is no logical distinction between something being apparent to the sense of smell and something apparentto the sense of sight or the sense of hearing. (People v. Mayberry (1982) 31 Cal.3d 335; People v. Bock Leung Chew (1956) 142 Cal.App.2d 400) Theplain smell of contrabandby an experienced officer supplies at least reasonable causeto suspect a crime, if not probable cause to arrest or search. (People v. Duncan (1986) 42 Cal.3d 91, 101-104; People v. Shandloff (1985) 170 Cal.App.3d 372, 381; People v. Divito (1984) 152 Cal.App.3d 11, 14). “If the presence ofodorsis 1] testified to before [the court andit] finds the affiant qualified to know the odor, andit is one sufficiently distinctive to identify a forbidden substance, this Court has never held sucha basis insufficient to justify issuance of a search warrant. Indeed it might very well be found to be evidence of most persuasive character.” (Johnson y. United States ( 1948) 333 U.S. 10; People v. Benjamin (1999) 77 Cal.App.4th 264, 273.) Officer Totorica’s warrantless search of Petitioner’s package that was left for shipment with Federal Express was based uponthe fact that that package had a strong odor of marijuana, and otherinvestigative techniques such as the invalid name, address and telephone numberlisted on the Federal Express receipt. Also, Federal Express employee Her and Officer Totorica both noticed the smell of marijuana from the package when it was at the Federal Express office. Lieutenant Haley also noticed the smell of marijuana coming from the package whenit was taken to the policestation. Officer Totorica and Lieutenant Haley both had training and experiencein identifying marijuana and were familiar with its odor. Thus, the warrantless search in this case was constitutional under the “plain smell” doctrine. The Court of Appeals also relied upon dicta from People v. Pereira (2007) 150 Cal. App. 4th 1106. Pereira involved the abandonment of property and standing to claim it in a motion to suppress. The court necessarily relied on dicta because the only question presented in Pereira was whether the package, containing a false name and address, was abandoned. There was no discussion of probable cause in the court’s analysis in Pereira because that was not the issue in that case. There is nothing in Pereira that standsfor the proposition that probable cause is no longer a valid exception to a warrantless search. The circumstances known to the officer when the search was conducted would certainly include the 12 suspicious nature of the transaction as well as the undeniable odor of marijuana emanating from the package. In summation, this decision conflicts with the usual approach of Courts of Appeal on an important question of law, and therefore, this Court should grant the Petition for Review. Respondent contends that in 2011, the odor of marijuana is so distinct and commonthat the plain smell of marijuanais as reliable as the plain view of marijuana. CONCLUSION For the foregoing reasons, Respondentrespectfully requests that this Petition for Review be granted. Dated: November3, 2011 Respectfully submitted, JOYCE E. DUDLEY District Attorney of Santa Barbara MICHAEL J. CARROZZO FU Deputy District Attorney Attorneysfor Respondent 13 CERTIFICATE OF COMPLIANCE I certify that the attached PETITION FOR REVIEW uses a 13 point Times New Romanfont and contains 3,948 words. Dated: November3, 2011 Respectfully submitted, JOYCE E. DUDLEY District Attorney of Santa Barbara AddedOrs MICHAELJ. SAR Deputy District Attorney Attorneysfor Respondent 14 PROOF OF SERVICE STATE OF CALIFORNIA PEOPLE v. KEWHAN ROBEY) ). ss. COUNTY OF SANTA BARBARA ) ) Case No. B231019 I am a citizen of the United States and a resident of Santa Barbara County, California. I am over the age ofeighteen years, and not a party to the above-entitled action. My businessaddressis the Office of the District Attorney, 1112 Santa Barbara Street, Santa Barbara, CA 93101, telephone: (805) 568-2399. On NOVEMBER3, 2011, I served a true copy ofthe attached PETITION FOR REVIEW on the following, by method(s) indicated below: BY PERSONAL SERVICE:By handdelivering a true copy thereof, at his office with his clerk therein or the person having chargethereof, at the address indicated below: BY FIRST CLASS MAIL:Byplacinga true copy thereof, enclosed in a sealed envelope with postage thereon fully prepaid in the U.S. Post Office Box addressed as indicated below: , Patty Dark Superior Court Deputy Public Defender Honorable Edward Bullard 312 East CookStreet 312 East Cook Street Santa Maria, CA 93454 Santa Maria, CA 93454 Attorney General of California Court of Appeals 300 S. Spring Street Second District North Tower-Fifth Floor 200 East Santa Clara Los Angeles, CA 90012 Ventura, CA 93001 BY FACSIMILE TRANSMISSION:Byfaxing a true copy thereofto the recipient at the facsimile numberindicated below: I declare under penalty of perjury underthe laws of the State of California that the foregoingis true and correct, andthat this declaration was executed at Santa Barbara, California. NOVEMBER3,2011 Lirica £{[efar—jor _UL Donna Crawford / 15 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SIX KEWHAN ROBEY, Petitioner, Vv. THE SUPERIOR COURT OF SANTA BARBARA COUNTY, Respondent; THE PEOPLE, Real Party in Interest. 2d Crim. No. B231019 (Super. Ct. No. 1349412) (Santa Barbara County) COURT OF APPEAL - SECOND DIST FILED OCT 2 4 2011 JOSEFH A.Laine, Cierk PetitionerKewhan Robey consigned a sealed package to a common carrier for shipment. The package reeked of marijuana. Thecarrier notified the police, whoseized the package and later openedit at the police station. The police did not seek a warrant even though no exigent circumstances existed at the time of the search. Wasthe warrantless search justified based on smell alone? Not according to the California Supreme Court. (Guidi v. Superior Court (1973) 10 Cal.3d 1; People v. Marshall (1968) 69 Cal.2d 51.) To smell it is not the sameasto seeit. Thetrial court erred in denying Robey's motion to suppress evidence of the marijuana. Wegranthis petition for wnt of mandate. FACTS On Friday afternoon, July 23, 2010, Federal Express ("FedEx") employee Nancy Her smelled the odor of marijuana emanating from a package received for shipment from Santa Maria to Illinois. She followed company protocol; she withheld the package from the shipping line and telephoned the Santa Maria Police Department. Officer Nathan Totorica responded. When Totorica walked into the FedEx office, he smelled the distinct odor of marijuana. As he approached the counter where the box waslocated, the odor becamestronger. Her told Totorica that FedEx "could not deliver the package" and asked what he wanted done with it. Totorica seized the unopened box "as evidence.” Totorica took the package to the police station, where his supervisor, Lieutenant Jerel Haley, also notedthe strong odor of marijuana. Both officers have significant training and experience in identifying controlled substances, including the odor of marijuana. When the narcotics unit declined to investigate, Totorica and Haley opened the package, which contained 444 grams (approximately 15 ounces) of marijuana. The officers did not seek a search warrant. A few days later, Robey brought the packing slip for the box back to FedEx and asked whyit had not been delivered. Her telephoned Totorica, who subsequently arrestedRobey. The slip confirmed that Robey had used a false name. Robey is charged with possession of marijuana for sale (Health & Saf. Code, § 11359) andsale or transportation of marijuana(id., § 11360, subd. (a)). The trial court denied his motion to suppress evidence of the marijuana. The court held that exigent circumstancesjustified the seizure of the package andthat the inevitable discovery doctrine justified the search. Robey petitioned for a writ of mandate directing the trial court to grant the motion. Weissued an order to show cause. . DISCUSSION The Fourth Amendmentofthe UnitedStates Constitution prohibits unreasonable searchesand seizures of a person's effects. (Chambers v. Maroney (1970) 399 US. 42,51.) Letters and sealed packages are among the personal effects entitled to Fourth Amendmentprotection. (United States v. Jacobsen (1984) 466 U.S. 109, 114.) Subject tocertain exceptions, police must have probable cause to search items protected by the Fourth Amendment and must obtain a warrant before the search is made. (Chambers, at p. 51.) Onesuch exception applies to automobiles. When probable cause exists to search an automobile, it may be searched with or without a warrant dueto its mobility. (Chambers v. Maroney, supra, 399 U.S. at p. 52.) In People v. McKinnon (1972) 7 Cal.3d 899, 909, our Supreme Court expanded this exception to permit the warrantless seizure of goods or chattels consigned to a commoncarrier for shipment. The court held that when the police have probable cause to believe that a package consigned to a commoncarrier contains contraband, they are entitled either to search it immediately without a warrant or to seize and hold it until they can obtain a warrant. (bid.) Totorica elected to seize the package. Robey contends that McKinnon has been overruled, and, therefore, the police violated the Fourth Amendmentbyseizing the package without a warrant. In People v. Yackee (1984) 161 Cal.App.3d 843, 848, footnote 2, the appellate court rejected the rule that packages consigned to a commoncarrier may be searched without a warrant. The court observedthat "[t]his holding ofMcKinnon has been impliedly overruled both by United States v. Chadwick (1977) 433 U.S. 1... and People v. Dalton (1979) 24 Cal.3d 850... ." bid.) Chadwick and Dalton once stood for the proposition that when a closed container in an automobile comes under the exclusive control of law enforcement officers, a warrantless search is permissible only if both probable causeand exigent circumstances are present. (United States v. Chadwick, supra, 433 U.S. at p. 13; People v. Dalton, supra, 24 Cal.3d at pp. 856-857.) The United States Supreme Court overruled those cases in California v. Acevedo (1991) 500 U.S. 565, by eliminating the exigent circumstances requirement. The court held that "[t]he police may search an automobile and the containers within it where they have probable causeto believe contrabandor evidence is contained." (Jd. at p. 580.) The court emphasizedthatthis rule applies only to automobiles. (/d. at pp. 578, 580.) Because the instant case does not involve an automobile, the cases discussing this exception do not apply. Weneed not decide, however, whether McKinnon permitted Totorica to seize the package from FedEx without a warrant. Once he elected to seize the package, McKinnon did require that the police officers hold the package until they obtained a search warrant.. (People v. McKinnon, supra, 7 Cal.3d at p. 909.) They failed to do so. Consequently, even if we assumethe seizure waslegal, the search wasperse unreasonable unless another exception to the warrant requirement applies. (Katz v. United States (1967) 389 U.S. 347, 357.) Here, there is no such exception. People v. Pereira (2007) 150 Cal-App.4th 1106is instructive. The defendant mailed a package via a private shipping company. Theproprietorofthe company becamesuspiciousofthe package, openedit and founda teddy bear inside. (Ud. at p. 1110.) After observing some abnormal stitching on the bear, the proprietor telephoned the police, who transported the packageto the police station. A few hours later, an officer cut into the bear without a search warrant and discovered marijuana. ([bid.) In affirming the trial] court's order suppressing evidence of the marijuana, the court observedthat "[e]ven when an officer lawfully seizes a package, the Fourth Amendment requires that in the absence of exigent circumstances, the officer obtain a warrant before examining the contents of the package.” (Ud. at p. 1112.) The court upheldthe trial court's finding that no exigency justified the warrantless search. (bid) The same analysis applies here. Totorica took the packageto the police station, where it remained in police custody and control. There was norisk the package would leave the station. The officers had time to consult with the narcotics unit before opening the package. They also had time to seek a warrant. Here there is no evidence of exigent circumstances. The People contend that even without exigent circumstances, the warrantless search was permissible under a "plain smell” theory. This theory is an offshoot of the "plain view" exception to the warrant requirement. Underthis exception, incriminating evidence or contraband in the plain view of an officer who has the right to be in the position to have that view is subject to seizure without a warrant. (People v. Mack (1980) 27 Cal.3d 145, 150.) The People argue that no distinction exists between somethingthat is apparent to the sense of smell and something that is apparent ‘to the sense ofsight. ‘We comprehendthe logic of the argument. But we cannot hold the seizure proper. Our Supreme Court has not endorsed this view whenprobable cause is based on odoralone. People v. Marshall, supra, 69 Caj.2d 51 held that the odor of contraband creates probable cause to seek a search warrant but doesnotjustify a warrantless search. "To hold .. . that an odor, either aloneor with other evidenceofinvisible contents can be deemed the sameas or corollary to plain view, would open the door to snooping and rummaging through personal effects. Even a most acute sense of smell might mislead officers into fruitless invasions of privacy where no contrabandis found.” (dd. at p. 59.) The court concludedthat "[iJn plain smell,’ therefore, is plainly not the equivalent of 'in plain view." (bid.) Guidi v. Superior Court, supra, 10 Cal.3d 1 disapproved of Marshall to the extent it suggested that police may not consider odor along with other corroborating factors in assessing whether contraband1s in plain view. (Guidi, at p. 17, fn. 18.) In both cases, a witness had provided a visual description of the bag containing the contraband. After visually locating the bag based on that description, the searching officer used his sense of smell to confirm the bag's contents. The Marshall court held that this was insufficient to justify a warrantless search on a plain view theory. (People v. Marshall, supra, 69 CaJj.2d at p. 59.) In contrast, the Guidi court concludedthat the warrantless search was permissible because the odor corroboratedprior visual confirmation of the contraband's location. (Guidi, at p. 17, fn. 18.) The court cautioned, however, that "[w]e do not here hold that only the smell of contraband and nothing more would justify seizing a supposed container of the contraband, nor do we mean to accord ‘plain smell’ a place in Fourth Amendmentdoctrine equivalent to that occupied by'plain sight." (Jbid.) The Guidi court refused to revisit the debate in Marshall as to whetherthe "plain smell" of contraband justifies a warrantless search for the source of that odor. Nonetheless, the justices were divided on that issue. (Guidi v. Superior Court, supra, 10 Cal.3d at p. 17, fn. 18.) In a concurring opinion,signed by four of the seven justices, Justice Moskreiterated his belief, as stated in his dissent in Marshall, "that the sense of smell, and indeedall the senses, may be employed, not merely in confirmation ofwhat is already visible, but in equal weight with the sense of sight in the determination of probable cause to search and seize." (Guidi, at p. 20 (conc. opn. of Mosk,J.).) Does the passage of 43 years since Marshall was decided warrant (pardon the expression) reconsideration ofMosk's view? Perhaps not. Courts require an experienced peaceofficer's testimony to establish the presence of marijuana through its odor. (People v. McKinnon, supra, 7 Cal.3d at p. 917.) Indeed, both Totorica and Haleytestified about their training and experiencein identifying the odor of marijuana. Wewisely do not speculate whether marijuana's alleged pungent odoris familiar to a larger segment of the population today than it was in 1968. We do recognize that courts have questioned the extent of Guidi’s limitation on the plain smell doctrine but they, too, have been reluctant to apply the doctrine when odoris the sole basis for probable cause. In People v. Dickson (1983) 144 Cal.App.3d 1046, 1056, footnote 7 (superseded on another ground as stated in People v. Hull (1995) 34 Cal.App.4th 1448, 1455), the court observed that Guidi's "limitation loses muchofits force . . . because of [the] short concurring opinion filed by Justice Mosk joined by three other members of the court." Nonetheless, the court rejected the argumentthat the odor of ether alone is enough to supply probable cause for a warrantless entry of a dwelling. (/d. at pp. 1057-1058.) The People cite several federal cases they contend endorse or apply the plain smell doctrine. (E.g., United States v. Angelos (10th Cir. 2006) 433 F.3d 738, 747 [upholding search and seizure based on smell of marijuana and evident residue on duffle bags]; United States v. Clayton (8th Cir: 2000) 210 F.3d 841, 845 [noting that officer executing arrest warrant "quickly developed probable cause for a search based on his immediate perception of an odor associated with methamphetamine production"); United States v. Haley (4th Cir. 1982) 669 F.2d 201, 203 [holding that the odor | emanating from a container in an automobile mayjustify invocation of the "plain view" doctrine].) These cases are factually distinguishable; also they are contrary to California precedent rejecting the doctrine that odor alone will justify a warrantless search. (Guidi v. Superior Court, supra, 10 Cal.3d at p. 17, fn. 18; People v. Marshall, supra, 69 Cal.2d at p. 59.) We are boundby this precedent. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455-456.) The warrant requirement is not an empty formality. It is the cornerstone ofthe Fourth Amendment's guarantee of the right to privacy. (Johnson v. United States (1948) 333 U.S. 10, 13-14.) We recognize that a numberofexceptions exist, but we are wary of creating another one underthe facts ofthis case. The odor of marijuana gave the officers probable cause to obtain a search warrant and they had plenty oftime to obtain one. They had no other evidence corroborating the contents of the package. The officers chose not to seek a warrant. The consequenceofthis decision is the marijuana is not admissible. Thetrial court concludedthat, notwithstanding the warrantless search, the marijuana is admissible under the inevitable discovery doctrine. We disagree. This doctrine permits the introduction of evidence initially discovered during, or as a consequence of, an unlawful search, but later obtained independently from lawful activities untainted by theinitial illegality. (Murray v. United States (1988) 487 U.S. 533, 537.) To establish inevitable discovery, the prosecution "must demonstrate by a preponderanceofthe evidencethat, due to a separate line of investigation, application of routine police procedures, or some other circumstance, the [unlawfully obtained evidence] would have been discovered by lawful means." (People v. Hughston (2008) 168 Cal.App.4th 1062, 1072.) The People have not met that burden. InPeople v. Superior Court (Walker) (2006) 143 Cal.App.4th 1183, 1193- 1194, campussecurity had the contractual authority to enter and inspect the defendant's dormitory room. After discovering drugs in his room, the campussecurity guard contacted the police, who conducted an unlawful warrantless search of the room. The court applied the inevitable discovery doctrine on the basis that even if the unlawful search had not occurred, campus security, having discovered a potentially significant marijuana sales enterprise on the campus, would have turned overthe evidenceto police by lawful means. (/d. at p. 1216.) The People argue, by analogy, that if Totorica had notseized the box, FedEx would have turned over the contrabandto the police by lawful means. This argument assumes that FedEx would have opened the box on its own and then turned in the marijuana. The record does not support this assumption. We do not know what FedEx would havedoneif Totorica had left the box without any instructions. The FedEx agent could have thrown out the box or returned it to Robey whemhe appeared with the packing slip. We maynotrely on speculation to concludethat thepolice inevitably would have discovered the marijuana by lawful means. (See Peoplev. Hughston, supra, 168 Cal.App.4th at p. 1073 [observing "that the possibility someone would have removedor destroyed the evidence at issue undermines a showing of inevitability”].) Wereject the People's argument that Robey lacks standing to seek suppression of the evidence because he abandoned any expectation ofprivacy in the package. The use of a false name does not necessarily constitute an abandonmentof property for purposes of Fourth Amendmentprotection. "The appropriatetest is whether defendant's words or actions would cause a reasonable person in the searching officer's position to believe that the property was abandoned." (People v. Pereira, supra, 150 Cal.App.4th at p. 1113.) The substantial evidence supports the trial court's determination that _ Robey did not abandon the package. He obtained a packingslip, with a tracking number, which allowed him to retain significant control over the package while it was in transit. He also returned to FedEx to inquire asto the status of the package, | "objectively demonstrating his continuing interestin it.” (People v. Pereira, supra, 150 Cal.App.4th at p. 1113.) | Wegrant the petition. Let a peremptory writ issue directing the respondent superior court to vacate its order denying Robey's motion to suppress the evidence and to enter a new and different order granting the motion. CERTIFIED FOR PUBLICATION. GILBERT,PJ. Weconcur: COFFEE,J. PERREN,J. Edward H.Bullard, Judge Superior Court County of Santa Barbara Raimundo Montes De Oca, Interim Public Defender, Patricia Dark, Deputy Public Defender, for Petitioner. Kamala D.Harris, Attomey General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka,SeniorAssistant Attorney General, James William Bilderback II, Supervising Deputy Attorney General, ThomasC. Hsieh, Deputy Attomey General, for Respondent. Joyce E. Dudley, District Attorney, Michael J. Carrozzo, Deputy District Attomey, for Real Party in Interest. 10