{"id":6180,"date":"2012-02-01T15:03:11","date_gmt":"2011-10-26T08:12:10","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2011-10-26T08:12:10","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=6180","title":{"rendered":"Cal.2d: Fed Ex package in transit opened without warrant suppressed"},"content":{"rendered":"

A package consigned to Fed Ex \u201creeked of marijuana.\u201d They called police who seized it, took it to the police station and opened it without a warrant in violation of the Fourth Amendment. Robey v. Superior Court<\/a>, 200 Cal. App. 4th 1, 132 Cal. Rptr. 3d 510 (2d Dist. 2011), petition for review granted Nov. 1, 2011<\/a>:<\/p>\n

Was the warrantless search justified based on smell alone? Not according to the California Supreme Court. (Guidi v. Superior Court (1973) 10 Cal.3d 1 [109 Cal. Rptr. 684, 513 P.2d 908]; People v. Marshall (1968) 69 Cal.2d 51 [69 Cal. Rptr. 585, 442 P.2d 665].) To smell it is not the same as to see it. [\u00b6] The trial court erred in denying Robey’s motion to suppress evidence of the marijuana.\n<\/p><\/blockquote>\n

The officer had a kind of anonymous tip, but face to face, and he could assess the credibility of the story about defendant having a gun. It was not a situation where a gun was being brandished. The court doesn\u2019t have to decide whether the informant\u2019s tale is enough because, once the officer encountered the defendant, his conduct added to what the informant said, and it completed the totality of circumstances. United States v. Washington, 2011 U.S. Dist. LEXIS 122446 (S.D. Ill. October 24, 2011).*<\/p>\n

In analyzing consent, court factors handcuffs, number of officers, familiar surroundings, no warning of right to refuse, fact defendant had been arrested before, being intelligent and \u201cvery cooperative and nice,\u201d and telling the officers where the stuff was to find it was all by consent. \u201cAs the Fifth Circuit remarked in Martinez, \u2018it would be significantly more likely for a defendant to consent voluntarily to a search that he knew would produce evidence of a crime if he had already voluntarily admitted to committing the crime.\u2019\u201d United States v. Jenkins, 2011 U.S. Dist. LEXIS 122225 (W.D. La. September 12, 2011).*<\/p>\n","protected":false},"excerpt":{"rendered":"

b2evALnk.b2WPAutP Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"","ping_status":"pingsdone","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[],"tags":[],"class_list":["post-6180","post","type-post","status-publish","format-standard","hentry"],"_links":{"self":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/6180","targetHints":{"allow":["GET"]}}],"collection":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=6180"}],"version-history":[{"count":0,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/6180\/revisions"}],"wp:attachment":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=6180"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=6180"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=6180"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}