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Warrantless Search of FedEx Package Containing Marijuana Held Improper

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  • Warrantless Search of FedEx Package Containing Marijuana Held Improper

    Kewhan Robey put 450 grams of marijuana in a FedEx box and attempted to mail it from California to Illinois. A FedEx employee noticed 'a strong odor'? of marijuana, however, held the package back and called the Santa Maria Police Department.

    Officer Nathan Totorica then came to the FedEx office. According to Totorica, the moment he walked into the FedEx office, he noticed the smell of marijuana. As he walked closer to the package, he testified, the smell strengthened.

    Totorica then seized the package, 'as evidence'? he said. He then took the package to the police station and opened it up without a search warrant.

    A few days later, Robey went to the FedEx office with his packing slip to ask why his package had not been delivered. The FedEx employee then telephone Totorica, who came to the office and arrested Robey. It was later determined that Robey had used a false name on the packing slip.

    Robey was then prosecuted for violation of California Health and Safety Code ? 11379 for possession for sale and transportation of marijuana. Robey filed a motion to suppress the evidence of marijuana, alleging that the police should have secured a search warrant before opening the FedEx package, as there was no exigent circumstances justifying such an immediate opening. The trial court denied the motion, saying that exigent circumstances did exist and the inevitable discovery doctrine supported the warrantless search.

    Before the case proceeded further, Robey filed a petition for writ of mandate, asking the appellate court to direct the trial court to grant the motion.

    The Second Appellate District, in Robey v. Superior Court (2011 DJDAR 15551), agreed with Robey. In finding the trial court erred, the appellate court noted that in California Supreme Court case, People v. McKinnon (1972) 7 Cal.3d 899, the officer was allowed to seize the package as he did, but once he seized it, he was required to hold it unopened until he obtained a search warrant, unless there were exigent circumstances.
    Here, the package was in police custody and control. There was no exigency.

    The Court also rejected the People's attempt at arguing a 'plain smell'? of the package made its contents obvious and therefore, no warrant was necessary, as is the law with the 'plain view'? doctrine. The Court said a 'plain smell'? approach was not so objective and would 'open the door to snooping and rummaging through a person's personal effects.'?

    In closing, the Court reminded us, 'the warrant requirement is not an empty formality. It is the cornerstone of the Fourth Amendment's guarantee of the right of privacy'? (Johnson v. United States (1948) 333 U.S. 10, 13-14).

    If you are charged in with possession of illegal drugs, do not trust your defense to an inexperienced lawyer who may not understand the current state of the law. Greg Hill is an attorney in Torrance, California. He is a U.S. Naval Academy graduate (B.S., 1987), Boston University graduate (M.B.A., 1994) and Loyola Law School graduate (J.D., 1998). Greg Hill & Associates represents clients in Torrance, Long Beach and the surrounding areas in federal drug matters, as well as DUI, domestic violence and restraining orders, among other crimes. Visit the firm's website at Torrance Criminal Defense Lawyer - Long Beach, California Criminal Attorney - San Pedro Crime Lawyer or the firm's Facebook page at Greg Hill & Associates - Legal/Law - Torrance, CA | Facebook.

  • #2
    Re: Warrantless Search of FedEx Package Containing Marijuana Held Improper

    That's really good to know. I would've thought the police would have gotten a warrant but I guess they figured they didn't need one since it was in their control.


    • #3
      Re: Warrantless Search of FedEx Package Containing Marijuana Held Improper

      So the point is, you need to hire a professional lawyer to defend you when you're in that kind of situation.


      • #4
        Re: Warrantless Search of FedEx Package Containing Marijuana Held Improper

        This is an awesome case! I can't believe he got it thrown out! I'd like to know if this was the end, or if the prosecutor still continued to trial? Thanks again for the post & sharing!! YAY...go legal rights good job sure mr robey appreciates it.


        • #5
          Re: Warrantless Search of FedEx Package Containing Marijuana Held Improper

          @Greghill this is an EXTREMELY late reply, hopefully you still get this.

          Do you still monitor this board?


          • #6
            Moral of the story, don't send in Fedex!


            • #7
              How many people are in prison now still for marijuana? What a waste of the nations resources.


              • #8
                don't send contraband by fed ex friends


                • #9
                  is that really so difficult to figure out ?


                  • #10
                    What actually gives thern the right to search a privately sent package?They are not police?


                    • #11
                      Fed Ex scan most packages for contraband.
                      And for cash as well which they will often keep unless you go through a whole series of steps to get it back.


                      • #12
                        I guess they hope you wont do that because it is illicit money they are hoping!! it seems to me..


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