Warrantless Search for Marijuana—It Can’t Be Based on Smell Alone

December 24, 2011

An unwarranted police search based only on the odor of drugs is not legal, according to a California appeal court.

The case involved the police opening a shipped package that smelled strongly of pot.  A FedEx employee smelled what she thought was marijuana emanating from a package that was to be shipped from California to Illinois.  She alerted the police, who seized the package and took it back to the station where they opened it and found pot.  The man who shipped the package, Kewhan Robey, returned to FedEx to ask why his package had not been shipped.  The FedEx employee called the police, who arrested Robey.  The seized package was later used as evidence against Robey.

Do they need a warrant to search for marijuana?

The Fourth Amendment protects you from unreasonable search and seizure.  This right is safeguarded by the warrant requirement—police need a warrant to conduct a search and seizure unless they have probable cause to believe that you committed a crime and what amounts to a strong reason to detain you immediately.  If the police see drugs, they have the right to conduct a warrantless search and to seize them.  According to the court of appeal, to smell drugs is not the same as to see them.

Defense attorney Thomas Greenberg has defended drug cases hundreds of times and is up to date about drug laws.  If you have been charged with a drug crime, defense attorney Thomas Greenberg can help you.  Call for free consultation (650) 242-0021

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