Robey v. Superior Court of Santa Barbara Cnty.

• Decision Date: 27 June 2013
• Docket Number: No. S197735.,S197735.
• Citation: 158 Cal.Rptr.3d 261,302 P.3d 574,56 Cal.4th 1218
• Parties: Kewhan ROBEY, Petitioner, v. The SUPERIOR COURT of Santa Barbara County, Respondent; The People, Real Party in Interest.
• Court: California Supreme Court

56 Cal.4th 1218

302 P.3d 574

158 Cal.Rptr.3d 261

Kewhan ROBEY, Petitioner,

v. The SUPERIOR COURT of Santa Barbara County, Respondent;The People, Real Party in Interest.

No. S197735.

Supreme Court of California

June 27, 2013.

See 4 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Illegally Obtained Evidence, § 282.

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.

LIU, J.

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 (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. Officer Totorica returned to the store and arrestedpetitioner, 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. 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 ordered that a peremptory writ of mandate issue 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 circumstancepermitting 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.

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, 12 Cal.Rptr.3d 592, 88 P.3d 498; 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, 12 Cal.Rptr.3d 592, 88 P.3d 498.)

“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, 106 S.Ct. 1809, 90 L.Ed.2d 210, quoting Katz v. United States (1967) 389 U.S. 347, 360, 88 S.Ct. 507, 19 L.Ed.2d 576 (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, 88 S.Ct. 507 (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, 88 S.Ct. 507).]” ( Mincey v. Arizona (1978) 437 U.S. 385, 390, 98 S.Ct. 2408, 57 L.Ed.2d 290.) 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, 104 S.Ct. 1652, 80 L.Ed.2d 85( Jacobsen );United States v. Van Leeuwen (1970) 397 U.S. 249, 251–252, 90 S.Ct. 1029, 25 L.Ed.2d 282;Ex parte Jackson (1877) 96 U.S. 727, 733, 24 L.Ed. 877.)

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 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, 58 Cal.Rptr.3d 847 [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, 103 Cal.Rptr. 897, 500 P.2d 1097( McKinnon ). The defendant in McKinnon brought five cartons to an airline freight counter for shipment, describing their contents as “personal...