“Plain Smell Test” Fails With State Supreme Court

Posted by Steve Eversole | Jul 04, 2013 | 0 Comments

Our Birmingham criminal defense lawyers know that generally speaking, an officer who sees illegal substances in plain site in the course of a legal traffic stop or home contact may seize that substance as evidence without a warrant.

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This is sometimes referred to as the "plain view doctrine," and it holds that prosecutors can use this evidence against you, so long as it was spotted during the course of a lawful observation, per the Fourth Amendment.

However, a case out of California challenged whether this same theory might be applied to an officer's sense of smell. In the end, the California Supreme Court ruled in Robey v. People that an officer's olfactory detection of illegal substances was not enough to justify a warrantless search. While the case doesn't have any direct implications for those in Alabama, it sets a strong precedent, which builds on the earlier U.S. Supreme Court case, Florida v. Jardines, which held that a police dog's sniff in front the home of a suspected drug dealer did in fact amount to a search under the Fourth Amendment, and as such, required a warrant.

This is not to say that warrants are all that tough for police to obtain in these cases, but it does provide one more layer of civil rights protections and more of an opportunity for your defense lawyer to challenge the evidence against you.

In Robey v. People, the case started with a Fed-Ex package that was dropped off with the intended shipping destination of Illinois. An employee of the private shipping firm contacted police after noting that this particular package had a strong odor of marijuana. An officer responded, confirmed the smell and seized the package. He brought it, unopened, back to the station, where his supervisor also confirmed the distinct smell.

From there, detectives with the department's narcotics unit decided to open the package, based on its smell. They did not have a warrant. Inside, they discovered nearly 445 grams of marijuana, or nearly a pound. In Alabama, such an offense would be considered unlawful distribution of a controlled substance. It is a Class B felony, and per Alabama Code Section 13A-12-211, it's punishable by between 2 and 20 years behind bars.

In this case, the defendant was charged with possession of marijuana for sale and sale or transportation of marijuana. The lower court initially held that the evidence in the warrantless search was admissible, per the inevitable discovery doctrine because the police did have sufficient probable cause in order to obtain a warrant, had they bothered to do so.

However, they didn't, and the state court ultimately determined this to be a fatal flaw. The strong odor of marijuana, they ruled, was enough for the officer to seize the package. However, it wasn't enough for police to initiate a search absent a warrant.

On this basis, the case against the defendant was ultimately tossed.

What this shows is that sometimes, even actual guilt isn't necessarily enough to secure a criminal conviction. Police are held to a higher standard because of their position, and when they fail to follow all relevant laws and procedures, their entire case may be shot.

Contact Birmingham Criminal Defense Attorney Steven Eversole at (866) 831-5292.

Additional Resources:

Police need warrant to open package that reeks of pot, court says, June 27, 2013, By Maura Dolan, The Los Angeles Times

About the Author

Steve Eversole

Admitted to practice in All State and Federal Courts in Alabama: AllAlabama State Courts, Alabama Supreme Court, Alabama Court of Appeals,Northern...

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