While mailing marijuana is always a risky proposition, those who choose to do so have been granted a measure of protection. Last week the California Supreme Court unanimously ruled that law enforcement must obtain a warrant before opening a suspicious package – even if it really smells like pot.
The decision was based on a case involving Kewhan Robey, arrested at a Santa Maria FedEx facility in July 2010 after inquiring about a package from Illinois he was expecting and hadn't received. Unbeknownst to Robey at the time, his parcel had already been opened by Santa Maria police when a FedEx employee called the cops to report that it reeked of reefer.
The officers discovered just under a pound of pot (444 grams) and Robey was charged with possession with intent to sell. Why Robey would import pot from Illinois to sell in California remains a mystery.
Regardless of Robey's intentions, the California Supreme Court ruled that law enforcement couldn’t use the “novel legal theory” of confiscating cannabis by mere use of “plain smell” – as opposed to the legal “plain sight” practice. While police had the legal right to seize Robey's pot delivery, they should have obtained a warrant before opening the FedEx package.
The high court's decision was penned by Associate Justice Goodwin Liu, who wrote: “The fact that a sealed package smells like raw marijuana does not necessarily reveal that the package contains marijuana.” Liu referenced cases where cops mistakenly arrested suspects based on what they thought was the smell of cannabis.
More @ www.allgov.com