Filed 6/27/13




      IN THE SUPREME COURT OF CALIFORNIA


KEWHAN ROBEY,                       )
                                    )
           Petitioner,              )
                                    )                             S197735
           v.                       )
                                    )                       Ct.App. 2/6 B231019
THE SUPERIOR COURT OF SANTA         )
BARBARA COUNTY,                     )                       Santa Barbara County
                                    )                      Super. Ct. No. 1349412
           Respondent;              )
                                    )
THE PEOPLE,                         )
                                    )
           Real Party in Interest.  )
____________________________________)



        Petitioner Kewhan Robey was arrested and charged with possession of
marijuana for sale and with the sale or transportation of marijuana after police
seized a package from a private shipping company and discovered the drug inside.
The superior court denied petitioner‘s motion to suppress evidence, relying on
exigent circumstances and inevitable discovery. The Court of Appeal granted
Robey‘s petition for writ of mandate and ordered the superior court to grant the
motion to suppress. The Office of the Santa Barbara County District Attorney, as
real party in interest, sought this court‘s review on two issues: (1) whether a
police officer may conduct a warrantless search of a package seized from a
common carrier based on the exigent circumstance of the container‘s mobility, and



                                          1
(2) whether a police officer can conduct a warrantless search based on the ―plain
smell‖ of contraband.
       On the first issue, we hold that although a container‘s mobility may
constitute exigent circumstances sufficient to justify a warrantless seizure, it
cannot alone justify a search of the container once it has been seized. On the
second issue, we find that the District Attorney forfeited the plain smell argument
by failing to raise it in opposition to petitioner‘s motion to suppress in the superior
court. Because the District Attorney presents no other grounds to justify the
search of the container, petitioner‘s motion to suppress should be granted as to the
evidence obtained as a result of the warrantless search.
                                          I.
       On July 23, 2010, FedEx employee Nancy Her contacted the Santa Maria
Police Department to report that a package smelling of marijuana had been
dropped off for shipment to an Illinois address. Officer Nathan Totorica
responded. As he entered the store and walked toward the package, Officer
Totorica smelled the odor of marijuana, which got stronger as he approached the
package. Nancy Her informed Officer Totorica that FedEx could not deliver the
package and asked what she should do with it.
       Officer Totorica seized the unopened and sealed box as evidence and took
it to the police station. At the station, he contacted his supervisor, Lieutenant Jerel
Haley, who also concluded that the box smelled of marijuana. The officers
conferred with the narcotics unit and then opened the box. Inside they found 444
grams of marijuana. The officers did not seek a warrant for either the seizure or
subsequent search of the container.
       Three days later, petitioner Robey arrived at the same FedEx location to
inquire about an undelivered package. Her recognized petitioner as the man who
had delivered the box seized by the police, and she telephoned Officer Totorica.

                                           2
Officer Totorica returned to the store and arrested petitioner, who was carrying a
packing slip for the seized package.
       Petitioner was charged with possession of marijuana for sale and with the
sale or transportation of marijuana. (Health & Saf. Code, §§ 11359, 11360, subd.
(a).) The superior court denied petitioner‘s motion to suppress evidence, finding
that exigent circumstances justified the seizure and that the subsequent search was
valid under the inevitable discovery doctrine, presumably because the police had
sufficient probable cause to obtain a warrant had one been sought.
       Petitioner then sought a writ of mandate in the Court of Appeal, which in
turn issued an order to show cause to the superior court. The Court of Appeal, on
its own initiative, asked the parties to provide an informal response to several
questions, including whether the plain smell of marijuana, by itself, would have
allowed the search and seizure of the package without a warrant. After briefing
and argument by the parties, the Court of Appeal granted the petition and issued a
peremptory writ of mandate directing the trial court to grant petitioner‘s motion to
suppress evidence. Without deciding whether the officer was entitled to seize the
package, the Court of Appeal held (1) that exigent circumstances did not justify
the subsequent search of the container, (2) that the odor of contraband alone
cannot justify a warrantless search, (3) that the inevitable discovery doctrine did
not apply to the facts here, and (4) that petitioner had not abandoned the package
and therefore had ―standing‖ to seek suppression of the evidence.
       The District Attorney sought review in this court on two issues: whether
the mobility of the package constituted an exigent circumstance permitting the
officers to conduct a warrantless search after the package was already seized, and
whether the plain smell of marijuana constitutes an exception to the warrant
requirement. We granted review.



                                          3
                                          II.
       ―Our review of issues related to the suppression of evidence seized by the
police is governed by federal constitutional standards.‖ (People v. Lenart (2004)
32 Cal.4th 1107, 1118; see Cal. Const., art. I, § 28, subd. (f)(2).) ―In reviewing a
trial court‘s ruling on a motion to suppress evidence, we defer to that court‘s
factual findings, express or implied, if they are supported by substantial evidence.
[Citation.] We exercise our independent judgment in determining whether, on the
facts presented, the search or seizure was reasonable under the Fourth
Amendment.‖ (Lenart, at p. 1119.)
       ―The touchstone of Fourth Amendment analysis is whether a person has a
‗constitutionally protected reasonable expectation of privacy.‘ ‖ (California v.
Ciraolo (1986) 476 U.S. 207, 211, quoting Katz v. United States (1967) 389 U.S.
347, 360 (conc. opn. by Harlan, J.).) ―What a person knowingly exposes to the
public, even in his own home or office, is not a subject of Fourth Amendment
protection. [Citation.] But what he seeks to preserve as private, even in an area
accessible to the public, may be constitutionally protected.‖ (Katz, at pp. 351–352
(maj. opn.).) ―The Fourth Amendment proscribes all unreasonable searches and
seizures, and it is a cardinal principle that ‗searches conducted outside the judicial
process, without prior approval by judge or magistrate, are per se unreasonable
under the Fourth Amendment — subject only to a few specifically established and
well-delineated exceptions.‘ [(Katz, at p. 357).]‖ (Mincey v. Arizona (1978) 437
U.S. 385, 390.) It is well established that the Fourth Amendment‘s protection
extends to letters and other sealed packages in shipment. (See, e.g., United States
v. Jacobsen (1984) 466 U.S. 109, 114 (Jacobsen); United States v. Van Leeuwen
(1970) 397 U.S. 249, 251–252; Ex parte Jackson (1877) 96 U.S. 727, 733.)
       As an initial matter, the District Attorney says petitioner abandoned his
interest in the package by using a false name and address when he shipped it. But

                                          4
this argument is unavailing because the District Attorney, at the suppression
hearing, accepted petitioner‘s offer of proof to establish a privacy interest in the
container, a concession inconsistent with the District Attorney‘s later claim of
abandonment. In addition, the District Attorney did not enter the packing slip into
evidence or create any other record of a false name or address to support a claim
of abandonment in response to defense counsel‘s claim that petitioner showed he
continued to have an interest in the package by checking on its delivery after
leaving it for shipment. (See People v. Pereira (2007) 150 Cal.App.4th 1106,
1113–1114 [upholding trial court‘s finding that defendant did not abandon
package despite using false name and return address because other evidence
showed defendant ― ‗really care[d] about it getting delivered‘ ‖].)
       As to the first issue on which we granted review, the District Attorney
contends that petitioner‘s motion to suppress should be denied because the
warrantless seizure and subsequent search of the container in this case were
justified by exigent circumstances arising from the container‘s mobility. Here
petitioner contests only the search, not the seizure, of the container. As explained
below, we conclude that although the mobility of a package in shipment may
constitute an exigent circumstance permitting officers to seize it without a warrant,
such mobility cannot alone justify a warrantless search of the package after it has
been seized.
                                          A.
       The District Attorney argues that ―[o]nce the package was seized, law
enforcement had the right to open the package based on the exigent circumstances
that existed at the time of the seizure.‖ For this proposition, the District Attorney
relies principally on People v. McKinnon (1972) 7 Cal.3d 899 (McKinnon). The
defendant in McKinnon brought five cartons to an airline freight counter for
shipment, describing their contents as ―personal effects.‖ After the defendant left,

                                           5
an airline employee suspected that the cartons contained contraband and, upon
opening one of the cartons, found several brick-shaped packages inside. The
employee, believing he had discovered marijuana in one of the packages,
telephoned the police. When the officer arrived, the carton remained open, and the
officer could see the same brick-shaped packages. The officer ―formed the
opinion that the substance in the packages was marijuana. He proceeded to open
one of the packages, and verified its contents.‖ (Id. at p. 903.)
       This court, by a four-to-three majority, upheld the warrantless search and,
in so doing, overruled a pair of four-to-three decisions issued three years earlier
holding that when containers consigned for shipment are safely in the carrier‘s
custody, there is no exigent circumstance justifying a warrantless search.
(McKinnon, supra, 7 Cal.3d at p. 910, overruling People v. McGrew (1969) 1
Cal.3d 404 (McGrew) and Abt v. Superior Court (1969) 1 Cal.3d 418 (Abt).) The
basis for the overruling, McKinnon said, was that the intervening high court
decision in Chambers v. Maroney (1970) 399 U.S. 42 (Chambers) ―undermine[d]
the foundation of the majority opinions in McGrew and Abt.‖ (McKinnon, at
p. 910.)
       In Chambers, the high court held that where police have probable cause to
stop and search a car without a warrant, a subsequent search of the car after it has
been driven to a police station is also permissible without a warrant. (Chambers,
supra, 399 U.S. at pp. 51–52.) Chambers observed that the high court had long
adhered to the rule that a warrantless search of an automobile is permissible so
long as the police have probable cause to believe the car contains evidence or
contraband. (Id. at p. 48, citing Carroll v. United States (1925) 267 U.S. 132
(Carroll).) This exception to the warrant requirement, Chambers said, is justified
by the ease with which an automobile might be moved out of the jurisdiction
before a warrant can be obtained. (Chambers, at pp. 48, 51.) Although Chambers

                                          6
recognized that the problem of mobility might be solved by first seizing the car
and then seeking a search warrant, the high court declined to adopt such a rule:
―For constitutional purposes, we see no difference between on the one hand
seizing and holding a car before presenting the probable cause issue to a
magistrate and on the other hand carrying out an immediate search without a
warrant. Given probable cause to search, either course is reasonable under the
Fourth Amendment. [¶] . . . The probable-cause factor still obtained at the station
house and so did the mobility of the car unless the Fourth Amendment permits a
warrantless seizure of the car and the denial of its use to anyone until a warrant is
secured. In that event there is little to choose in terms of practical consequences
between an immediate search without a warrant and the car‘s immobilization until
a warrant is obtained.‖ (Id. at p. 52.)
       The court in McKinnon said ―the rationale of Chambers‖ is not ―limited to
searches of automobiles and similar self-propelled ‗vehicles‘ such as trucks, trains,
boats, or airplanes.‖ (McKinnon, supra, 7 Cal.3d at p. 908.) McKinnon stated:
―[W]henever [a container] is consigned to a common carrier, there can be no doubt
that it is intended, in fact, to be moved.‖ (Id. at p. 909.) Because ―all goods or
chattels consigned to a common carrier for shipment‖ are ―no less movable than
an automobile,‖ the court said, ―the reasons for the rule permitting a warrantless
search of a vehicle upon probable cause are equally applicable to the search of
such a chattel.‖ (Ibid.) The court assigned ―no constitutional relevance‖ to the
fact that the cartons were already in the carrier‘s safe custody: ―In Chambers the
defendants‘ automobile was seized by police officers and impounded at the police
station; if the high court can say, as it does, that under those circumstances ‗the
mobility of the car‘ still obtained at the station house [citation], a fortiori a chattel
such as here involved remains ‗mobile‘ in the constitutional sense despite its
limited and voluntary bailment to a common carrier.‖ (McKinnon, at p. 910.)

                                            7
McKinnon thus held that ―when the police have probable cause to believe a chattel
consigned to a common carrier contains contraband, they must be entitled either
(1) to search it without a warrant or (2) to ‗seize‘ and hold it until they can obtain a
warrant; absent these remedies, the chattel will be shipped out of the jurisdiction
or claimed by its owner or by the consignee.‖ (Id. at p. 909.)
       Three justices dissented in an opinion by Justice Peters. While
acknowledging that the court was ―bound‖ by Chambers, Justice Peters said
―Chambers, however, does not purport to apply to everything that is not nailed
down or affixed to realty. The Supreme Court‘s opinion is closely tied to a long
series of cases involving one and only one form of movable object — that which is
used as a vehicle to transport goods from one place to another.‖ (McKinnon,
supra, 7 Cal.3d at p. 920 (dis. opn. by Peters, J.).) Responding to the court‘s
assertion that a container consigned for shipment ―remains ‗mobile‘ in the
constitutional sense despite its limited and voluntary bailment to a common
carrier‖ (id. at p. 910), Justice Peters said: ―Indeed, chattels will retain their
movable character anywhere, whether within a depot, dwelling house, or concrete
vault as well as an airport, unless they are affixed to realty or otherwise rendered
nonmovable. The point is not that the chattels here involved were within the
custody of the airlines, but that they were not in a vehicle capable of moving them
beyond the jurisdiction on its own power; i.e., they had not entered the course of
transportation. Drawing a line at goods physically aboard a carrier at least has the
virtue of certainty. This is the line drawn by the United States Supreme Court in
case after case. If all things movable could be searched without a warrant if there
were probable cause to believe they contained evidence or contraband, the Fourth
Amendment would be rendered nugatory, and in effect the search without a
warrant would become the rule rather than the exception.‖ (Id. at p. 923 (dis. opn.
by Peters, J.).)

                                            8
       The central premise of McKinnon — the reason it gave for overruling
McGrew and Abt — is that the high court‘s decision in Chambers, though
involving an automobile search, stands for the broader principle that not only cars
but also ― ‗other things readily moved‘ ‖ are subject to warrantless search upon
probable cause. (McKinnon, supra, 7 Cal.3d at p. 909, italics omitted.) Indeed,
the McKinnon court appeared to treat automobiles as simply one kind of movable
container: ―To be sure, [a box consigned for shipment] has neither wheels nor
motive power; but these features of an automobile are legally relevant only insofar
as they make it movable despite its dimensions. A box, which is a fraction of the
size and weight of an automobile, is movable without such appurtenances.‖ (Id. at
p. 909.) According to McKinnon, a package consigned for shipment falls under
the same rule as an automobile: its mobility renders it subject to a warrantless
search either on the spot or at the station house.
       However, during the more than four decades since Chambers was decided,
the high court has never extended the rationale of that decision in the manner that
McKinnon did. To the contrary, as we explain below, subsequent cases treat
Chambers as part of line of authority specifically addressing automobile searches,
and the high court has repeatedly held that a movable container suspected to hold
evidence or contraband is subject to a warrantless search if the container is located
inside an automobile. Outside the context of an automobile search, the high court
has not applied the rationale of Chambers, Carroll, or any other authority to hold
that the mobility of a container by itself constitutes an exigent circumstance
justifying a warrantless search. Instead, the settled rule is that ―[e]ven when
government agents may lawfully seize such a package to prevent loss or
destruction of suspected contraband, the Fourth Amendment requires that they
obtain a warrant before examining the contents of such a package.‖ (Jacobsen,
supra, 466 U.S. at p. 114.) The development of the law since McKinnon

                                           9
undermines its reliance on Chambers as a basis for extending the well-delineated
automobile exception to ―all goods or chattels consigned to a common carrier for
shipment.‖ (McKinnon, at p. 909.)
                                           B.
       Seven years after Chambers, the high court decided United States v.
Chadwick (1977) 433 U.S. 1 (Chadwick), which considered the warrantless search
of a container seized from an automobile. In Chadwick, federal agents learned of
two passengers transporting a suspicious footlocker by rail and met the train at its
destination along with a police dog trained to detect marijuana. Without alerting
the suspects, the dog signaled the presence of drugs in the footlocker. The officers
continued to observe the suspects as they loaded the footlocker into the trunk of a
waiting automobile. At that point, before the car engine was started, the officers
arrested the men and seized the footlocker, transporting it to the station house.
There the officers opened the locked footlocker without a warrant and discovered
marijuana inside. (See id. at pp. 3–5.)
       Although the footlocker was seized from an automobile, the high court held
that the automobile exception did not apply. (Chadwick, supra, 433 U.S. at
pp. 11–13.) The court explained that the ―footlocker‘s mobility [does not] justify
dispensing with the added protections of the Warrant Clause. Once the federal
agents had seized it at the railroad station and had safely transferred it to the
Boston Federal Building under their exclusive control, there was not the slightest
danger that the footlocker or its contents could have been removed before a valid
search warrant could be obtained. The initial seizure and detention of the
footlocker, the validity of which respondents do not contest, were sufficient to
guard against any risk that evidence might be lost. With the footlocker safely
immobilized, it was unreasonable to undertake the additional and greater intrusion
of a search without a warrant.‖ (Id. at p. 13, fn. omitted.)

                                          10
       Relying on ―the rationale of [the high court‘s] automobile search cases,‖ the
government argued that ―luggage [is] analogous to motor vehicles for Fourth
Amendment purposes.‖ (Chadwick, supra, 433 U.S. at pp. 11–12.) The high
court acknowledged the automobile search cases, including Chambers, but then
rejected the analogy on several grounds. Whereas a footlocker may be ―safely
immobilized‖ upon seizure, ―[t]his may often not be the case when automobiles
are seized. Absolutely secure storage facilities may not be available, [citation],
and the size and inherent mobility of a vehicle make it susceptible to theft or
intrusion by vandals.‖ (Id. at p. 13 & fn. 7.) Moreover, even where ― ‗the
possibilities of the vehicle‘s being removed or evidence in it destroyed [are]
remote, if not nonexistent,‘ ‖ a warrantless search is justified by ―the diminished
expectation of privacy which surrounds the automobile.‖ (Id. at p. 12.) A person
has a diminished expectation of privacy in an automobile because ― ‗its function is
transportation[,] . . . it seldom serves as one‘s residence or as the repository of
personal effects[,] [i]t travels public thoroughfares where both its occupants and its
contents are in plain view‘ ‖ (id. at p. 12), and both vehicles and drivers are
subject to extensive regulation by states and localities (id. at p. 13). By contrast,
―a person‘s expectations of privacy in personal luggage are substantially greater
than in an automobile.‖ (Id. at p. 13.) Finally, ―[i]t was the greatly reduced
expectation of privacy in the automobile, coupled with the transportation function
of the vehicle, which made the Court in Chambers unwilling to decide whether an
immediate search of an automobile, or its seizure and indefinite immobilization,
constituted a greater interference with the rights of the owner. This is clearly not
the case with locked luggage.‖ (Id. at pp. 13–14, fn. 8; see ibid. [―[a] search of the
interior was . . . a far greater intrusion into Fourth Amendment values than the
impoundment of the footlocker‖ even though the impoundment infringed on the
owners‘ use and possession].)

                                          11
       Two years later, the high court in Arkansas v. Sanders (1979) 442 U.S. 753
(Sanders) applied the rule in Chadwick to a suitcase found in ―an automobile
lawfully stopped and searched on the street.‖ (Sanders, at p. 762.) As in
Chadwick, the police in Sanders had information that the respondent was carrying
drugs in his luggage. The police met him at the airport and observed as he placed
his luggage in the trunk of a taxi and departed the airport. The police followed,
stopping the taxi several blocks later. An officer opened the trunk and unlocked
the suitcase without a warrant to discover marijuana inside. (See id. at p. 755.)
       After citing its automobile search cases, including Chambers, and affirming
the distinctions drawn in Chadwick between luggage and automobiles, the high
court in Sanders said: ―A closed suitcase in the trunk of an automobile may be as
mobile as the vehicle in which it rides. But as we noted in Chadwick, the exigency
of mobility must be assessed at the point immediately before the search — after
the police have seized the object to be searched and have it securely within their
control. [Citation.] Once police have seized a suitcase, as they did here, the
extent of its mobility is in no way affected by the place from which it was taken.
Accordingly, as a general rule there is no greater need for warrantless searches of
luggage taken from automobiles than of luggage taken from other places.‖
(Sanders, supra, 442 U.S. at pp. 763–764, fns. omitted.) Thus Sanders, like
Chadwick, recognized a general rule that movable containers, once lawfully
seized, may not be searched without a warrant and declined to carve out an
exception for luggage seized from an automobile. (See Sanders, at p. 766 [―In
sum, we hold that the warrant requirement of the Fourth Amendment applies to
personal luggage taken from an automobile to the same degree it applies to such
luggage in other locations. Thus, insofar as the police are entitled to search such
luggage without a warrant, their actions must be justified under some exception to



                                         12
the warrant requirement other than that applicable to automobiles stopped on the
highway.‖].)
       The high court in Sanders rejected the state‘s argument that under
Chambers, ―if the police were entitled to seize the suitcase, then they were entitled
to search it.‖ (Sanders, supra, 442 U.S. at p. 765, fn. 14.) The court saw ―the
seizure of a suitcase as quite different from the seizure of an automobile. In
Chambers, if the Court had required seizure and holding of the vehicle, it would
have imposed a constitutional requirement upon police departments of all sizes
around the country to have available the people and equipment necessary to
transport impounded automobiles to some central location until warrants could be
secured. Moreover, once seized automobiles were taken from the highway the
police would be responsible for providing some appropriate location where they
could be kept, with due regard to the safety of the vehicles and their contents, until
a magistrate ruled on the application for a warrant. Such a constitutional
requirement therefore would have imposed severe, even impossible, burdens on
many police departments. [Citation.] No comparable burdens are likely to exist
with respect to the seizure of personal luggage.‖ (Ibid.)
       Three years after Sanders, the high court in United States v. Ross (1982)
456 U.S. 798 (Ross) held that where police have probable cause to search an
automobile without a warrant, the search may encompass not only a closed
compartment such as a glove box, but also any containers or packages found
inside the vehicle. Applying the principle that ―[t]he scope of a warrantless search
based on probable cause is no narrower — and no broader — than the scope of a
search authorized by a warrant supported by probable cause,‖ Ross explained that
―[t]he scope of a warrantless search of an automobile is . . . not defined by the
nature of the container in which the contraband is secreted. Rather, it is defined
by the object of the search and the places in which there is probable cause to

                                         13
believe that it may be found.‖ (Id. at pp. 823–824.) ―If probable cause justifies
the search of a lawfully stopped vehicle, it justifies the search of every part of the
vehicle and its contents that may conceal the object of the search.‖ (Id. at p. 825.)
       The high court in Ross had occasion to review its automobile search cases,
and it clarified that the justification for searching an automobile without a warrant
is not strictly based on exigency: ―although a failure to seize a moving automobile
believed to contain contraband might deprive officers of the illicit goods, once a
vehicle itself has been stopped the exigency does not necessarily justify a
warrantless search.‖ (Ross, supra, 456 U.S. at p. 807, fn. 9, citing Chambers,
supra, 399 U.S. at pp. 62–64 (conc. & dis. opn. by Harlan, J.).) With regard to
Chambers‘s holding that a vehicle may be searched without a warrant after it has
been impounded if it could have been searched on the spot, Ross explained that the
rule is ―based on the practicalities of the situations presented and a realistic
appraisal of the relatively minor protection that a contrary rule would provide for
privacy interests. Given the scope of the initial intrusion caused by a seizure of an
automobile — which often could leave the occupants stranded on the highway —
the Court [in Chambers] rejected an inflexible rule that would force police officers
in every case either to post guard at the vehicle while a warrant is obtained or to
tow the vehicle itself to the station. Similarly, if an immediate search on the scene
could be conducted, but not one at the station if the vehicle is impounded, police
often simply would search the vehicle on the street — at no advantage to the
occupants, yet possibly at certain cost to the police.‖ (Ross, at p. 807, fn. 9.)
       Further, the high court in Ross distinguished Chadwick and Sanders.
Whereas Ross involved the search of a container found inside a car where ―police
officers had probable cause to search respondent‘s entire vehicle‖ (Ross, supra,
456 U.S. at p. 817), Chadwick and Sanders were cases where police had probable
cause to believe only that the luggage — and not ―the vehicle or anything [else]

                                          14
within it‖ — contained contraband. (Ross, at p. 814; see id. at p. 824 [―Probable
cause to believe that a container placed in the trunk of a taxi contains contraband
or evidence does not justify a search of the entire cab.‖].) In concluding that ―an
individual‘s expectation of privacy in a vehicle and its contents may not survive if
probable cause is given to believe that the vehicle is transporting contraband‖ (id.
at p. 823, italics added), Ross ―reject[ed] some of the reasoning in Sanders‖
broadly suggesting that ―a warrantless search of a container found in an
automobile could never be sustained as part of a warrantless search of the
automobile itself‖ (Ross, at pp. 814, 824). Ross also said, in tension with
Chadwick‘s statement concerning diminished privacy expectations in cars, that
―[c]ertainly the privacy interests in a car‘s trunk or glove compartment may be no
less than those in a movable container‖ yet ―[t]hese interests must yield to the
authority of a search . . . .‖ (Ross, at p. 823.) But the high court continued to
adhere to the holdings in Sanders and Chadwick because those cases, unlike Ross,
involved probable cause to search only a container and not the car where the
container was found. (Ross, at pp. 809–814, 824.)
       Finally, California v. Acevedo (1991) 500 U.S. 565 (Acevedo) dispensed
with the ―dichotomy between the rule in Chadwick and the rule in Ross,‖ which
―dictate[d] that if there is probable cause to search a car, then the entire car —
including any closed container found therein — may be searched without a
warrant, but if there is probable cause only as to a container in the car, the
container may be held but not searched until a warrant is obtained.‖ (Acevedo, at
p. 568.) Explaining that ―Sanders was explicitly undermined in Ross‖ and that
―the dual regimes for automobile searches that uncover containers has proved . . .
confusing‖ for courts and police officers, the high court concluded that ―it is better
to adopt one clear-cut rule to govern automobile searches and eliminate the
warrant requirement for closed containers set forth in Sanders.‖ (Id. at p. 579.)

                                          15
Acevedo held: ―The police may search an automobile and the containers within it
where they have probable cause to believe contraband or evidence is contained.‖
(Id. at p. 580.) The high court thus extended the rule in Ross for searching a
container found in the course of a lawful automobile search ―to all searches of
containers found in an automobile,‖ including a search supported only by probable
cause that the container, and not the car, holds evidence or contraband. (Id. at
p. 579.) In so holding, Acevedo overruled Chadwick and Sanders on that point.
(Id. at pp. 576–579.)
                                          C.
       The case law on automobile searches, from Carroll to Chambers to
Acevedo, reveals that the rationale for allowing a vehicle to be searched without a
warrant is rooted in practical concerns unique to automobiles. Further, the
rationale for allowing any containers located in a vehicle to be searched without a
warrant is also specific to the automobile context. As we now explain, these
rationales are distinct, and neither supports the analogy drawn in McKinnon
between automobiles and packages consigned for shipment.
                                          1.
       As noted, McKinnon said that because ―all goods or chattels consigned to a
common carrier for shipment . . . are no less movable than an automobile, the
reasons for the rule permitting a warrantless search of a vehicle upon probable
cause are equally applicable to the search of such a chattel.‖ (McKinnon, supra, 7
Cal.3d at p. 909.) In concluding that ―a chattel . . . remains ‗mobile‘ in the
constitutional sense despite its limited and voluntary bailment to a common
carrier,‖ McKinnon relied on Chambers‘s statement that the mobility of a car ―still
obtain[s]‖ after it has been seized. (McKinnon, at p. 910, citing Chambers, supra,
399 U.S. at p. 52.) In Ross, however, the high court acknowledged that this
statement in Chambers was something of a legal fiction. Although exigent

                                          16
circumstances may justify seizing a moving automobile without a warrant, Ross
explained, ―once a vehicle itself has been stopped the exigency does not
necessarily justify a warrantless search.‖ (Ross, supra, 456 U.S. at p. 807, fn. 9,
citing Chambers, at pp. 62–64 (conc. & dis. opn. by Harlan, J.).) Ross clarified
that the reason for permitting a warrantless search of a lawfully stopped vehicle is
not that the vehicle retains its mobility, but that the ―practicalities‖ of ―forc[ing]
police officers in every case either to post guard at the vehicle while a warrant is
obtained or to tow the vehicle itself to the station‖ — ―which often could leave the
occupants stranded on the highway‖ — are too burdensome to justify a rule
allowing police, upon probable cause, only to seize but not to search a vehicle
without a warrant. (Ross, at p. 807, fn. 9.)
       Ross echoed Sanders‘s concern that such a rule would require ―police
departments of all sizes around the country to have available the people and
equipment necessary to transport impounded automobiles to some central location
until warrants could be secured. Moreover, once seized automobiles were taken
from the highway the police would be responsible for providing some appropriate
location where they could be kept, with due regard to the safety of the vehicles and
their contents, until a magistrate ruled on the application for a warrant. Such a
constitutional requirement therefore would have imposed severe, even impossible,
burdens on many police departments.‖ (Sanders, supra, 442 U.S. at p. 765–766,
fn. 14; see also Chadwick, supra, 433 U.S. at p. 13, fn. 7 [noting difficulty of
providing ―[a]bsolutely secure storage facilities‖ for automobiles].) Sanders
observed that these practical concerns limit the rationale of Chambers to
automobiles (Sanders, at p. 765, fn. 14), and it is notable that after Sanders and
Ross, the high court in Acevedo did not explain the holding in Chambers on the
basis of a vehicle‘s continuing mobility after it has been seized. (See Acevedo,
supra, 500 U.S. at pp. 569–570.) Instead, Acevedo explained that the later

                                           17
warrantless search at the police station in Chambers ―derived from‖ the authority
to conduct ―an immediate search without a warrant at the moment of seizure‖
(Acevedo, at p. 570) — authority that stems from the practical difficulties of
transporting and securely storing an automobile pending issuance of a search
warrant. (See ibid. [describing Chambers as having ―reasoned . . . that the police
could search later whenever they could have searched earlier, had they so
chosen‖].)
       The high court‘s refinement of the rationale for Chambers‘s holding
undermines McKinnon‘s purported analogy between automobiles and containers
consigned for shipment. The analogy rests on McKinnon‘s observation that such
containers ―are no less movable than an automobile.‖ (McKinnon, supra, 7 Cal.3d
at p. 909.) But it is clear from Sanders and Ross that the justification for a
warrantless search of an automobile after it has been lawfully stopped turns not on
its continuing mobility but instead on the practical difficulties of towing, storing,
and securing a car, and providing for the safety of its stranded occupants, pending
the issuance of a search warrant. Such difficulties do not generally apply to
packages consigned for shipment, and there is no evidence in the record before us
that the police had any difficulty in bringing the FedEx package to the police
station and securely storing it there pending issuance of a search warrant.
       In sum, absent unusual circumstances where transporting or storing a
container poses practical difficulties for law enforcement, the concerns justifying
an immediate warrantless search of a lawfully stopped automobile do not apply to
packages consigned for shipment. In this case, there is no dispute as to whether
the police lawfully seized the package without a warrant. Because there was no
justification for an immediate search of the package once it was seized, the police
had no derivative authority to search the package later at the police station without
a warrant.

                                          18
                                            2.
       Nor do the container searches upheld in Ross and Acevedo lend credence to
McKinnon‘s theory that the mobility of packages consigned for shipment provides
a basis for a warrantless search. Neither Ross nor Acevedo relied on the mobility
of a container found in an automobile as the ground for upholding a warrantless
search.
       In Ross, the high court held that when police have probable cause to believe
a vehicle is carrying evidence or contraband, the scope of a search may extend to
―every part of the vehicle that might contain the object of the search,‖ including
the glove compartment, the trunk, and even the upholstery. (Ross, supra, 456 U.S.
at p. 821; see id. at pp. 804–805 [Carroll upheld a search where police tore open a
car‘s upholstery to find contraband].) Ross saw no distinction between the closed
compartments of a car and a closed container found in a car in terms of their utility
for stowing contraband or the privacy interests affected. (Ross, at pp. 820–821,
823.) If a car‘s closed compartments may be opened without a warrant during a
lawful vehicle search, the high court reasoned, then closed containers found during
a lawful vehicle search may be opened as well. (Id. at p. 824 [scope of automobile
search ―is not defined by the nature of the container in which the contraband is
secreted‖ but ―by the object of the search and the places in which there is probable
cause to believe that it may be found‖].)
       In reaching this holding, Ross nowhere suggested that seizing or storing a
container posed any of the practical difficulties associated with towing and
impounding an automobile pending issuance of a search warrant. But Ross did
rely on practical concerns unique to containers found in the course of a lawful
automobile search. In rejecting a rule that would allow police to search the entire
vehicle but require any containers found to be taken to a magistrate, Ross observed
that ―prohibiting police from opening immediately a container in which the object

                                            19
of the search is most likely to be found and instead forcing them first to comb the
entire vehicle would actually exacerbate the intrusion on privacy interests.
Moreover, until the container itself was opened the police could never be certain
that the contraband was not secreted in a yet undiscovered portion of the vehicle;
thus in every case in which a container was found, the vehicle would need to be
secured while a warrant was obtained.‖ (Ross, supra, 456 U.S. at p. 821, fn. 28.)
It is thus apparent that Ross‘s reasoning applies specifically to containers found
during an automobile search and not to movable containers generally.
       The same is true of Acevedo. In allowing police to open a container in a car
where probable cause extends only to the container and not the car, Acevedo, like
Ross, did not rely on the mobility of such containers or on any suggestion that
containers pose the kind of practical problems associated with seizing and storing
an automobile pending a search warrant. Instead, the high court explained that
having held in Ross that police may open a container found in the course of a
general vehicle search, it could see ―no principled distinction‖ between such a
container and ―a container found in a car after a limited search for the container.‖
(Acevedo, supra, 500 U.S. at p. 574; see ibid. [both types of containers ―are
equally easy for the police to store and for the suspect to hide or destroy‖].) As in
Ross, the high court in Acevedo said that prohibiting police from opening a
container found in a car may ―disserve privacy interests.‖ (Acevedo, at p. 574.)
―At the moment when officers stop an automobile, it may be less than clear
whether they suspect with a high degree of certainty that the vehicle contains
drugs in a bag or simply contains drugs. If the police know that they may open a
bag only if they are actually searching the entire car, they may search more
extensively than they otherwise would in order to establish the general probable
cause required by Ross. [¶] . . . We cannot see the benefit of a rule that requires



                                         20
law enforcement officers to conduct a more intrusive search in order to justify a
less intrusive one.‖ (Id. at pp. 574–575.)
       With this passage and others, Acevedo made clear that its rationale and
holding pertained specifically to containers in the context of automobile searches.
In rejecting the relevance of cases concerning other container searches, Acevedo
said: ―From Carroll through Ross, this Court has explained that automobile
searches differ from other searches.‖ (Acevedo, supra, 500 U.S. at p. 578.)
Further, the court said: ―Our holding today neither extends the Carroll doctrine
nor broadens the scope of the permissible automobile search delineated in Carroll,
Chambers, and Ross. It remains a ‗cardinal principle that ―searches conducted
outside the judicial process, without prior approval by judge or magistrate, are per
se unreasonable under the Fourth Amendment — subject only to a few specifically
established and well-delineated exceptions.‖ ‘ [Citation.] We held in Ross: ‗The
exception recognized in Carroll is unquestionably one that is ―specifically
established and well delineated.‖ ‘ [Citation.]‖ (Acevedo, at p. 580.) And perhaps
most pointedly, Acevedo explained its holding as follows: ―Until today, this Court
has drawn a curious line between the search of an automobile that coincidentally
turns up a container and the search of a container that coincidentally turns up in an
automobile. The protections of the Fourth Amendment must not turn on such
coincidences. We therefore interpret Carroll as providing one rule to govern all
automobile searches.‖ (Ibid., italics added.)
       Thus, in overruling Chadwick and Sanders, Acevedo rejected the view that
containers found in cars are subject to the same Fourth Amendment rules that
apply to container searches generally. However, in bringing all containers found
in cars within the ambit of the automobile exception, Acevedo expressly limited its
holding to automobile searches and did not disturb the general rule that a warrant
is required to search a lawfully seized container. Nothing in the automobile-

                                         21
specific reasoning of Ross and Acevedo invites an extension of those holdings to
permit the warrantless search of a sealed package consigned for shipment.
                                          D.
        In the midst of developing its jurisprudence on container searches in the
context of automobiles, the high court had occasion to consider the applicability of
the Fourth Amendment to containers outside of the automobile context. (See
Jacobsen, supra, 466 U.S. 109; United States v. Place (1983) 462 U.S. 696
(Place).) These cases confirm that a warrant is required to search a package
consigned for shipment once it has been lawfully seized.
        In Place, federal agents met a suspicious airline passenger at his destination
and asked to search his luggage. (Place, supra, 462 U.S. at p. 698.) When the
passenger refused, the agents seized his bags and transported them to another
location for a ―sniff test‖ by a narcotics detection dog. Ninety minutes later, the
test was performed, and the dog alerted to one of the bags, whereupon the agents
obtained a search warrant, opened the bag, and discovered cocaine. (Id. at p. 699.)
The high court held that the officer‘s reasonable suspicion justified an
investigative detention of the luggage and that the canine sniff did not constitute a
search under the Fourth Amendment. (Id. at pp. 706–707.) But the court also held
that the 90-minute detention of the suspect‘s luggage in order to conduct the sniff
test exceeded the permissible scope of the investigative detention. (Id. at pp. 709–
710.)
        In setting forth the applicable principles, Place said: ―Where law
enforcement authorities have probable cause to believe that a container holds
contraband or evidence of a crime, but have not secured a warrant, the Court has
interpreted the Amendment to permit seizure of the property, pending issuance of
a warrant to examine its contents, if the exigencies of the circumstances demand it
or some other recognized exception to the warrant requirement is present.‖

                                          22
(Place, supra, 462 U.S. at p. 701, italics added.) In other words, exigent
circumstances can justify the seizure of a container without a warrant, but the
container, once seized, cannot be searched without ―issuance of a warrant to
examine its contents.‖ (Ibid.) In support of this general rule, Place cited Sanders
and Chadwick. As noted, Acevedo overruled Sanders and Chadwick insofar as
they applied the warrant requirement to containers found in cars. But Acevedo, in
exempting containers found in cars, did not call into question the general rule for
container searches that was stated by Place and recognized by Sanders and
Chadwick. (See ante, at pp. 20–21.) Indeed, even as it overruled Sanders and
Chadwick with respect to container searches in the automobile context, Acevedo
distinguished Place on the ground that Place ―did not involve an automobile at
all.‖ (Acevedo, supra, 500 U.S. at p. 577; see id. at p. 578 [―Place had nothing to
do with the automobile exception and is inapposite.‖].) The general rule stated by
Place thus remains good law.
       One year after Place, the high court decided Jacobsen, supra, 466 U.S. 109.
In that case, FedEx employees opened a package that had been damaged by a
forklift. Upon discovering plastic bags with white powder packed inside a tube
with crumpled newspaper, the employees notified law enforcement. When a
federal agent arrived, he found the package with the top open and one end of the
tube slit open. He removed the plastic bags from the tube and saw the white
powder. He then opened the bags and conducted a field test that identified the
powder as cocaine. (See id. at pp. 111–112.)
       The high court held that the initial opening of the package by the FedEx
employees ―did not violate the Fourth Amendment because of their private
character.‖ (Jacobsen, supra, 466 U.S. at p. 115.) The court then held that
because the private search had eliminated any privacy interest in the contents of
the package, the agent‘s handling of the package and its contents was lawful

                                         23
insofar as it did not exceed the scope of the private search. (Id. at p. 119 [agent‘s
―manual inspection of the tube and its contents‖ did ―not tell him anything more
than he already had been told‖ by the FedEx employees]; id. at p. 121 [seizure was
reasonable because ―respondents‘ privacy interest in the contents of the package
had been largely compromised . . .‖].) Finally, the court held that ―[a] chemical
test that merely discloses whether or not a particular substance is cocaine does not
compromise any legitimate interest in privacy.‖ (Id. at p. 123.)
       Jacobsen prefaced its analysis with the following precepts: ―When the
wrapped parcel involved in this case was delivered to the private freight carrier, it
was unquestionably an ‗effect‘ within the meaning of the Fourth Amendment.
Letters and other sealed packages are in the general class of effects in which the
public at large has a legitimate expectation of privacy; warrantless searches of
such effects are presumptively unreasonable. Even when government agents may
lawfully seize such a package to prevent loss or destruction of suspected
contraband, the Fourth Amendment requires that they obtain a warrant before
examining the contents of such a package. Such a warrantless search could not be
characterized as reasonable simply because, after the official invasion of privacy
occurred, contraband is discovered.‖ (Jacobsen, supra, 466 U.S. at p. 114, italics
added and fns. omitted.) In support of the italicized rule, the high court cited
Place as well as Ross, Sanders, and Chadwick. (Jacobsen, at p. 114, fn. 8.)
Jacobsen‘s affirmation of the general rule casts further doubt on McKinnon
because if the mobility of a container consigned for shipment were enough to
justify a warrantless search, as McKinnon held, then Jacobsen‘s entire analysis
upholding the agent‘s inspection of the package and its contents would have been
unnecessary.
       Since Jacobsen, the issue of whether a package consigned for shipment
may be searched without a warrant appears to have arisen infrequently, and the

                                          24
few reported cases on point have concluded that a warrant is required. In Daniels
v. Cochran (Fla.Dist.Ct.App. 1995) 654 So.2d 609 (Daniels), a police officer
opened a package to which a drug-sniffing dog alerted during ―routine package
checks on a conveyor belt at a Federal Express office.‖ (Id. at p. 611.) The court
held that ―[w]hile [the officer] may have been entitled to seize the package based
on the dog‘s alert without a warrant, his opening of the package without a warrant
violated the Fourth Amendment . . . .‖ (Id. at p. 613.) Distinguishing Acevedo‘s
exception for warrantless searches of automobiles and their contents, the court said
that ―a canine sniff which alerts to a package does not eliminate the requirement
that, absent exigent circumstances, consent or other recognized exceptions, a
search warrant must be obtained before a search of the contents of the package
passes constitutional muster. See [Place, supra, 462 U.S. at pp. 706–707].‖
(Daniels, at p. 613.)
       In Seeley v. State (Ala.Crim.App. 1995) 669 So.2d 209 (Seeley), a FedEx
employee, Kaufmann, opened an undeliverable box and found a tubular package
inside. He did not open the tube but squeezed it, felt a powdery substance he
suspected to be drugs, and called the police. An officer, Ware, arrived with a
drug-sniffing dog that alerted to the tube. The officer then took the tube to his
office. There, he opened it and performed a test on the powder that indicated the
presence of cocaine. (Id. at p. 211.) The court invalidated the search: ―Under
Jacobsen, Ware exceeded the scope of Kaufmann‘s search when he cut open the
tube in the appellant‘s package without a search warrant. Jacobsen establishes
that a legitimate expectation of privacy exists in sealed packages sent by common
carrier and that a warrantless government search cannot exceed what was carried
out by private parties. Ware should have obtained a search warrant before cutting
open the tubular package that contained cocaine. Ware had probable cause to
obtain a search warrant based on his observations and the results of the ‗sniff test‘

                                         25
by the narcotics detection dog. Because Ware had dominion and control over the
package, there was little chance of loss or destruction of the package. There were
no exigent circumstances that justified opening the package before obtaining a
search warrant.‖ (Id. at pp. 213–214.)
       In contrast to the warrantless searches held unlawful in Daniels and Seeley,
the conduct of law enforcement in many other cases suggests that it is common
practice, consistent with Place and Jacobsen, to obtain a warrant before searching
a container consigned for shipment. (See, e.g., United States v. Robinson (6th Cir.
2004) 390 F.3d 853, 858–859 [police obtained a warrant to open a package in
shipment that smelled of marijuana]; Unites States v. Logan (8th Cir. 2004) 362
F.3d 530, 531–532 [police obtained a warrant to open a package at a mailbox
facility after narcotics dog alerted to the package]; Unites States v. Morones (8th
Cir. 2004) 355 F.3d 1108, 1109 [police obtained a warrant to search a package
detained at a FedEx facility]; United States v. Smith (7th Cir. 1994) 34 F.3d 514,
516 [police obtained a warrant to search a FedEx package after a canine alert];
United States v. Hall (10th Cir. 1994) 20 F.3d 1084, 1085 [same].)
       The District Attorney asserts, without citation to any authority, that
McKinnon ―is still good law and has been followed by numerous courts.‖ In fact,
there appear to be only two California cases that have applied McKinnon to uphold
the warrantless search of a container based on its mobility, and both predate the
development of the law in Chadwick, Sanders, Place, and Jacobsen. (See People
v. Goodyear (1975) 54 Cal.App.3d 157, 162; People v. Superior Court (Reilly)
(1975) 53 Cal.App.3d 40, 51–52.) To buttress McKinnon, the District Attorney
relies on United States v. Johnston (9th Cir. 1974) 497 F.2d 397, which upheld the
warrantless search of two suitcases on a departing train. But United States v.
Johnston also predates the line of cases from Chadwick to Jacobsen. The District
Attorney also relies on United States v. Johns (1985) 469 U.S. 478 (Johns), which

                                         26
applied Ross to uphold the delayed search of packages found in two lawfully
seized pickup trucks. But because Johns is an automobile search case, it lends no
support to McKinnon‘s holding for reasons already discussed.
       McKinnon‘s rule that the mobility of a container is itself sufficient to justify
a warrantless search has not been followed by any appellate court in California for
almost four decades. This is unsurprising in light of subsequent developments that
have undermined McKinnon‘s analogy between the mobility of cars and the
mobility of containers as the basis for a warrantless search. We conclude that
McKinnon, supra, 7 Cal.3d 899 is no longer to be followed on this point. A
container consigned for shipment is subject to the same rule as other containers
outside of the specific and well-delineated context of an automobile search: ―Even
when government agents may lawfully seize such a package to prevent loss or
destruction of suspected contraband, the Fourth Amendment requires that they
obtain a warrant before examining the contents of such a package.‖ (Jacobsen,
supra, 466 U.S. at p. 114, fn. omitted; see Place, supra, 462 U.S. at p. 701.)
       In the present case, the mobility of the package constituted exigent
circumstances justifying Officer Totorica‘s seizure of the FedEx package without
a warrant so long as he had probable cause to believe it contained contraband. But
seizure of the package by the police negated its mobility. Absent some other
exception to the warrant requirement, the Fourth Amendment required the police
to obtain a search warrant before opening the package after it had been seized.
                                         III.
       In addition to invoking exigent circumstances, the District Attorney argues
that the plain smell of marijuana emanating from the package was, by itself,
sufficient justification for the warrantless search. As we explain, however, we do
not decide this issue because the District Attorney forfeited the argument by



                                          27
failing to raise it in opposition to petitioner‘s suppression motion in the superior
court.
         In order to understand our finding of forfeiture here, it is important to
distinguish between two different legal claims involving the sense of smell. The
first is that a distinctive odor can provide probable cause to believe that a closed
container contains contraband. This proposition is well established by cases that
have found the smell of contraband sufficient to establish the probable cause
necessary for police to obtain a search warrant (see Johnson v. United States
(1948) 333 U.S. 10, 13) or to conduct a search or seizure under the automobile or
exigent circumstances exception to the warrant requirement (see People v. Cook
(1975) 13 Cal.3d 663, 668–670, disapproved on other grounds by People v. Doolin
(2009) 45 Cal.4th 390; People v. Gale (1973) 9 Cal.3d 788, 794; United States v.
McCoy (8th Cir. 2000) 200 F.3d 582, 584; United States v. Downs (10th Cir.
1998) 151 F.3d 1301, 1303; U.S. v. Pierre (5th Cir. 1992) 958 F.2d 1304, 1310;
Gilliam v. United States (D.C. 2012) 46 A.3d 360, 364; Dies v. State (Miss. 2006)
926 So.2d 910, 918; People v. Kazmierczak (Mich. 2000) 605 N.W.2d 667, 672;
State v. Moore (Ohio 2000) 734 N.E.2d 804, 807–808 & fns. 1, 2 [collecting
cases]).
         The second claim is that the plain smell of marijuana by itself justifies the
search of a container without a warrant, separate and apart from any other
exception to the warrant requirement. Here the claim is not that the smell of
marijuana can establish the probable cause necessary to obtain a warrant or to
invoke an exception to the warrant requirement, but that the police simply do not
need a warrant to search a package that reeks of marijuana. It is this claim that the
District Attorney presses in this court but failed to raise in the superior court.
         In opposing petitioner‘s motion to suppress in the trial court, the District
Attorney argued that the smell of marijuana constituted probable cause to support

                                            28
the seizure and search of the package without a warrant in light of exigent
circumstances arising from the package‘s mobility. In support of this argument,
the District Attorney offered Officer Totorica‘s testimony that the package smelled
of marijuana and that ―[t]he odor was stronger as I got closer to the package.‖
Officer Totorica also testified that he smelled marijuana upon entering the store
and that the entry was an ―estimated 25 feet‖ from the package, although these
assertions were not included in his incident report. Lieutenant Haley similarly
testified that ―there was a distinct odor of marijuana coming from [the package].‖
Both officers said they were trained and experienced in smelling marijuana. The
smell was also apparent to the store employee, Nancy Her, who did not indicate
she had any special training.
       The trial court upheld the seizure of the package under the exigent
circumstances exception to the warrant requirement, and this ruling is fairly
understood to encompass a determination that the evidence adduced at the
suppression hearing established probable cause that the package contained
contraband. As noted, petitioner does not challenge the legality of the seizure —
and for good reason: The trial court‘s implicit finding of probable cause is
supported by substantial evidence, and the existence of probable cause, together
with the exigent circumstance of the package‘s mobility, justified Officer
Totorica‘s seizure of the package without a warrant. (See Place, supra, 462 U.S.
at p. 701.) As for the subsequent search, the trial court upheld it on the basis of
inevitable discovery, but the Court of Appeal rejected that theory and the District
Attorney does not defend it here.
       After petitioner sought a writ of mandate in the Court of Appeal, the Court
of Appeal on its own initiative issued a letter to the parties requesting an informal
response to several questions, including the following: ―Do the courts recognize a
‗plain smell‘ doctrine that would have allowed the search and seizure of the

                                          29
package without a warrant?‖ This was the first time in the case that the parties
were asked to consider whether the smell of marijuana could alone provide an
independent and sufficient basis for a warrantless search or seizure, and not just a
basis for establishing probable cause. The District Attorney responded in the
affirmative, and the parties proceeded to brief and argue this issue in the Court of
Appeal. The Court of Appeal dedicated a significant portion of its opinion to
rejecting the theory that the plain smell of marijuana can alone justify a
warrantless search, and the District Attorney then sought our review on this issue.
       In this court, the District Attorney argues that the plain smell of marijuana
negated any reasonable expectation of privacy in the package, drawing an analogy
to the following dictum in a footnote from the United States Supreme Court‘s
decision in Sanders: ―Not all containers and packages found by police during the
course of a search will deserve the full protection of the Fourth Amendment.
Thus, some containers (for example a kit of burglar tools or a gun case) by their
very nature cannot support any reasonable expectation of privacy because their
contents can be inferred from their outward appearance.‖ (Sanders, supra, 442
U.S. at p. 765, fn. 13; see Robbins v. California (1981) 453 U.S. 420, 428 (plur.
opn.) [―to fall within the [exception described in Sanders‘s footnote] a container
must so clearly announce its contents, whether by its distinctive configuration, its
transparency, or otherwise, that its contents are obvious to an observer‖], revd. on
other grounds by Ross, supra, 456 U.S. 798.) Although some courts, relying on
Sanders or Robbins, have held that the plain smell of contraband justifies the
search of a closed container without a warrant (see United States v. Haley (4th Cir.
1982) 669 F.2d 201, 204, fn. 3; United States v. Epps (11th Cir. 2010) 613 F.3d
1093, 1098), other courts have rejected this view (see United States v. Johns (9th
Cir. 1983) 707 F.2d 1093, 1096, revd. on other grounds by Johns, supra, 469 U.S.
at p. 487; United States v. Dien (2d Cir. 1979) 609 F.2d 1038, 1045). Since

                                         30
Sanders, neither the United States Supreme Court nor this court has ever upheld a
warrantless search of a closed container solely on the ground that its smell,
appearance, or other outward characteristic clearly announced its contents. Thus,
it is fair to say that the legal theory urged by the District Attorney is unsettled in
the extant case law and novel in this court‘s jurisprudence.
       Although it is not improper for a reviewing court to decide the merits of an
alternate ground for affirming the judgment of a trial court even if that ground was
not argued by the parties below (see, e.g., People v. Robles (2000) 23 Cal.4th 789,
800–801 & fn. 7), we have cautioned that appellate courts should not consider a
Fourth Amendment theory for the first time on appeal when ―the People‘s new
theory was not supported by the record made at the first hearing and would have
necessitated the taking of considerably more evidence‖ or when ―the defendant
had no notice of the new theory and thus no opportunity to present evidence in
opposition.‖ (Green v. Superior Court (1985) 40 Cal.3d 126, 137–138.) In this
case, although the facts adduced at the suppression hearing were sufficient to
establish probable cause that the package contained contraband, the evidence on
the issue of smell was not extensive. Neither the District Attorney nor the defense
offered evidence that provided any depth or detail concerning the intensity or other
qualities of the smell detected by the officers. Nor does the record contain much
information about the extent or limitations of the officers‘ training or experience in
detecting marijuana through the sense of smell. Because the District Attorney did
not raise the plain smell theory at the suppression hearing, the parties had no
occasion to put forward the most probative evidence for or against the proposition
that the plain smell of marijuana was, by itself, sufficient to justify the warrantless
search. In light of the limited record before us, we decline to resolve whether the
smell of marijuana can alone justify the warrantless search of a closed container
and, if so, under what circumstances.

                                           31
       The way the plain smell issue arose in this case prompts us to caution
appellate courts against proposing, on their own initiative, novel theories that the
parties did not address in the course of litigating a motion to suppress in the trial
court. Our admonition is rooted in principles of judicial restraint, which have
particular salience when courts are confronted with unsettled constitutional issues.
― ‗In an emerging area of the law, we do well to tread carefully and exercise
judicial restraint, deciding novel issues only when the circumstances require.‘ ‖
(Matrixx Initiatives, Inc. v. Doe (2006) 138 Cal.App.4th 872, 881, quoting Mateel
Environmental Justice Foundation v. Edmund A. Gray Co. (2003) 115
Cal.App.4th 8, 20, fn. 6.)
                                   CONCLUSION
       For the reasons above, we conclude that the seizure of the package was
lawful but the warrantless search of the sealed package was not justified by
exigent circumstances and that the District Attorney forfeited the argument that
the plain smell of marijuana alone justified the search without a warrant. Because
the Court of Appeal‘s decision did not distinguish between evidence obtained
from the impermissible warrantless search and any evidence that might have been
obtained from the permissible warrantless seizure, we affirm in part and reverse in
part the judgment of the Court of Appeal and remand the matter to that court with




                                          32
directions to issue a peremptory writ of mandate. The peremptory writ shall direct
the superior court to vacate its order denying petitioner‘s motion to suppress
evidence and conduct further proceedings consistent with this opinion.


                                                 LIU, J.

WE CONCUR: CANTIL-SAKAUYE, C. J.
           KENNARD, J.
           BAXTER, J.
           WERDEGAR, J.
           CHIN, J.
           CORRIGAN, J.




                                         33
                      CONCURRING OPINION BY LIU, J.
       As today‘s opinion explains, there is an important difference between two
kinds of smell-related claims. One is that the detection of a distinctive odor
through a police officer‘s sense of smell may establish probable cause that a
closed container holds contraband. This proposition is well established. (See
Johnson v. United States (1948) 333 U.S. 10, 13 [smell of contraband may support
probable cause where the officer is ―qualified to know the odor, and [the odor] is
one sufficiently distinctive to identify a forbidden substance‖].) The other, quite
different claim is that the plain smell of contraband is sufficient by itself, apart
from any other exception to the warrant requirement, to justify opening a closed
container without a search warrant. This proposition, which is not well
established, is said by some courts and the District Attorney here to rest on an
analogy to the plain view doctrine in Fourth Amendment law. I write separately to
explain why this analogy is inapt and to elucidate concerns that should give courts
pause before authorizing warrantless searches of closed containers based solely on
the smell of contraband.
                                           I.
       The difference between a seizure and a search underlies the disanalogy
between the plain view doctrine and the purported plain smell justification for
opening a closed container without a warrant. The plain view doctrine holds that
an officer may seize an object in plain view without a warrant so long as the
officer is lawfully present in the place from which the object is viewed, the


                                           1
incriminating nature of the object is immediately apparent, and the officer has a
lawful right of access to seize the object. (See Horton v. California (1990) 496
U.S. 128, 136–137 (Horton).) As the high court has explained, the officer‘s
conduct in such circumstances does not invade any Fourth Amendment privacy
interest; it invades only the owner‘s possessory interest in the object. (Horton, at
pp. 133–134.) This distinction elucidates why the plain view doctrine is a doctrine
about seizures, not searches: ―The ‗plain-view‘ doctrine is often considered an
exception to the general rule that warrantless searches are presumptively
unreasonable, but this characterization overlooks the important difference between
searches and seizures. If an article is already in plain view, neither its observation
nor its seizure would involve any invasion of privacy. [Citations.] A seizure of
the article, however, would obviously invade the owner‘s possessory interest.
[Citations.] If ‗plain view‘ justifies an exception from an otherwise applicable
warrant requirement, therefore, it must be an exception that is addressed to the
concerns that are implicated by seizures rather than by searches.‖ (Id. at pp. 133–
134, fns. omitted.)
       This difference between seizures and searches was recognized in one of our
early Fourth Amendment cases addressing the issue of smell. In People v.
Marshall (1968) 69 Cal.2d 51 (Marshall), the court rejected the argument that
police could dispense with the warrant requirement when opening a closed
container based on the smell of marijuana. The officers in Marshall entered an
apartment to arrest a suspect for the sale of marijuana to an informant. No one
was inside the apartment when they arrived, but an officer ―detected a sweet odor‖
coming from a closed paper bag located in an open cardboard box inside an open
bedroom closet. (Id. at p. 55.) The odor was similar to the smell of the marijuana
previously sold to the informant. The officers opened the bag and found 21 plastic
bags of marijuana.

                                          2
       In an opinion by Chief Justice Traynor, the court stated the general rule that
―police officers may seize contraband evidence ‗in plain sight‘ ‖ and observed that
―[u]nder such circumstances there is, in fact, no search for evidence.‖ (Marshall,
supra, 69 Cal.2d at p. 56.) But the marijuana in Marshall was not in plain sight; it
was concealed inside a brown paper bag. (Id. at pp. 56–57.) In response to the
Attorney General‘s argument that ―the marijuana should . . . be deemed to have
been in plain view of the officer‖ based on its odor, the court reasoned as follows:
―[The Attorney General‘s] contention overlooks the difference between probable
cause to believe contraband will be found, which justifies the issuance of a search
warrant, and observation of contraband in plain sight, which justifies seizure
without a warrant. However strongly convinced officers may be that a search will
reveal contraband, their belief, whether based on the sense of smell or other
sources, does not justify a search without a warrant.‖ (Id. at p. 57.)
       The court further explained: ―In the present case the brown paper bag itself
was not contraband. Only by prying into its hidden interior [citation] could the
officer be sure that he was seizing contraband and nothing more. The fact that the
container was only a brown paper bag instead of a packing box, purse, handbag,
briefcase, hatbox, snuffbox, trunk, desk, or chest of drawers [citation] is
immaterial. It is inherently impossible for the contents of a closed opaque
container to be in plain view regardless of the size of the container or the material
it is made of. A search of the container is necessary to disclose its contents. A
search demands a search warrant.
       ―Of course officers may rely on their sense of smell to confirm their
observation of already visible contraband. [Citations.] To hold, however, that an
odor, either alone or with other evidence of invisible contents[,] can be deemed the
same as or corollary to plain view, would open the door to snooping and



                                          3
rummaging through personal effects. Even a most acute sense of smell might
mislead officers into fruitless invasions of privacy where no contraband is found.
       ―Moreover, however keen their sense of smell, officers cannot seize the
thing they smell until they find it after looking for and through the places from
which the odor emanates. In short, they must still conduct a search. . . . ‗In plain
smell,‘ therefore, is plainly not the equivalent of ‗in plain view.‘ ‖ (Marshall,
supra, 69 Cal.2d at pp. 58–59.)
       Although Marshall‘s authority as precedent was arguably undermined by a
four-justice concurring opinion in Guidi v. Superior Court (1973) 10 Cal.3d 1
(Guidi) urging that Marshall be overruled (see Guidi, at p. 19 (conc. opn. by
Mosk, J.)), Guidi involved facts different from those in Marshall. The police in
Guidi, after learning from an informant that two individuals suspected of selling
hashish from a shopping bag were inside an apartment, entered the apartment and
arrested the two suspects in the living room. One of the officers, Holt, then moved
from the living room to the kitchen to investigate sounds coming from the rear of
the apartment. In the kitchen, Officer Holt saw a shopping bag in plain view that
smelled of hashish, and ―[s]eizing the bag he found the 10 ‗baggies‘ of hashish
within.‖ (Id. at p. 5 (lead opn.).) On these facts, the court unanimously concluded
that ―the exigencies of the situation‖ — the possibility that other suspects
remained in the apartment to protect the contraband — justified the warrantless
search. (Id. at p. 19; see ibid. [―Having seen the described container of contraband
in plain sight, Officer Holt was justified in ascertaining if it still contained the
hashish, so as to evaluate the continuing danger of its violent defense.‖].)
       To the extent Marshall suggested that the smell of contraband coupled with
exigent circumstances would not justify a warrantless search, Guidi said ―it is no
longer to be followed.‖ (Guidi, supra, 10 Cal.3d at p. 17, fn. 18; see People v.
Cook (1975) 13 Cal.3d 663, 668, fn. 4 (Cook) [―the result in Guidi was a pro tanto

                                            4
overruling of Marshall as to the particular issue‖ (italics added)], disapproved on
other grounds by People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) But
Marshall itself, unlike Guidi, did not involve exigent circumstances, and none of
our cases since Guidi has called into question Marshall‘s holding that ―[h]owever
strongly convinced officers may be that a search will reveal contraband, their
belief, whether based on the sense of smell or other sources, does not justify a
search without a warrant‖ absent an established exception to the warrant
requirement. (Marshall, supra, 69 Cal.2d at p. 57.) Further, Chief Justice
Traynor‘s lucid reasoning in Marshall, which carefully distinguished between a
plain-view seizure and a plain-smell search, correctly anticipated the high court‘s
understanding that the plain-view seizure of a container ―does not compromise the
interest in preserving the privacy of its contents because it may only be opened
pursuant to either a search warrant [citations], or one of the well-delineated
exceptions to the warrant requirement. [Citations.]‖ (Horton, supra, 496 U.S. at
p. 141, fn. 11.)
       Like the observation of an object in plain view, the detection of the plain
smell of marijuana does not involve any intrusion on privacy. No search has
occurred within the meaning of the Fourth Amendment when an officer simply
uses his nose to smell the odor of marijuana emanating from a closed container.
However, unlike the mere act of sensory detection through sight or smell, the act
of opening a closed container to expose its contents — whether it turns out to be
contraband or something else — typically involves an intrusion on privacy and
constitutes a search. The sense of smell, no less than any of the other senses, may
give rise to probable cause to search. But probable cause ordinarily supports the
issuance of a search warrant; it does not obviate the need for one.
       There is nothing anomalous in the fact that the smell of contraband may be
sufficient to justify opening a package with a warrant yet insufficient to justify

                                          5
opening it without a warrant. That is equally true of an informant‘s tip, a police
officer‘s observation, or any other evidence supplying probable cause to conduct a
search that is subject to the warrant requirement. The degree of suspicion
supporting a search may be the same whether it is asserted beforehand in a warrant
application or after the fact at a suppression hearing. But there is an important
difference between requiring law enforcement officials to articulate their suspicion
before searching for contraband and permitting officials to articulate their ex ante
suspicion after contraband has already been found. That difference is a key reason
why the law imposes the warrant requirement as a safeguard against excessive zeal
or misconduct by law enforcement.
       Further, it is no answer to say that the distinctive odor of marijuana may
enable a trained officer to tell with virtual certainty what is inside a closed
container, for the same degree of certainty might arise through a tip from an
unfailingly reliable informant. In neither case does the accuracy of the officer‘s
suspicion bring the contents of a closed container into plain view such that seizure
of those contents involves no search. As the high court has repeatedly said, even
where ― ‗[i]ncontrovertible testimony of the senses . . . may establish the fullest
possible measure of probable cause,‘ ‖ the settled rule is that ― ‗no amount of
probable cause can justify a warrantless search or seizure absent ―exigent
circumstances‖ ‘ ‖ or some other established exception to the warrant requirement.
(Horton, supra, 496 U.S. at p. 137, fn. 7, quoting Coolidge v. New Hampshire
(1971) 403 U.S. 443, 468.)
                                          II.
       Against this legal backdrop, the District Attorney contends that neither the
act of smelling the package nor the act of opening it constitutes a search within the
meaning of the Fourth Amendment because there is no reasonable expectation of
privacy in a sealed package that reeks of marijuana. The argument is that no

                                           6
search warrant is required because no search occurs when police open a package
whose contents have already announced themselves through their distinctive odor.
       The United States Supreme Court has not resolved whether odor alone
might negate a reasonable expectation of privacy in a sealed package, although the
court flagged this issue in United States v. Johns (1985) 469 U.S. 478, 481
(Johns). There, customs officers investigating a drug smuggling operation smelled
marijuana coming from two pickup trucks in which they also saw distinctive green
packages consistent with a common means of wrapping marijuana. The officers
seized the trucks and removed the packages, opening them three days later without
a warrant. The high court upheld the warrantless search because the odor and
sight of the packages gave the officers probable cause to search the trucks under
the automobile exception to the warrant requirement. (Id. at p. 487.) The court
acknowledged but did not address the argument that the odor of marijuana might
negate an expectation of privacy in a closed container: ―Whether respondents ever
had a privacy interest in the packages reeking of marihuana is debatable. We have
previously observed that certain containers may not support a reasonable
expectation of privacy because their contents can be inferred from their outward
appearance, [citing Arkansas v. Sanders (1979) 442 U.S. 753, 764–765, n. 13], and
based on this rationale the Fourth Circuit has held that ‗plain odor‘ may justify a
warrantless search of a container. [(United States v. Haley (4th Cir. 1982) 669
F.2d 201, 203–204 & fn. 3, cert. denied (1982) 457 U.S. 1117.)] The Ninth
Circuit, however, rejected this approach [below], [(United States v. Johns (9th Cir.
1983) 707 F.2d 1093, 1096)], and the Government has not pursued this issue on
appeal. We need not determine whether respondents possessed a legitimate
expectation of privacy in the packages.‖ (Johns, supra, 469 U.S. at p. 486.)
       In citing footnote 13 of Sanders, the high court in Johns was referring to
the following dictum suggesting that there is no legitimate expectation of privacy

                                          7
in a package whose contents can be inferred from its outward appearance: ―Not
all containers and packages found by police during the course of a search will
deserve the full protection of the Fourth Amendment. Thus, some containers (for
example a kit of burglar tools or a gun case) by their very nature cannot support
any reasonable expectation of privacy because their contents can be inferred from
their outward appearance. Similarly, in some cases the contents of a package will
be open to ‗plain view,‘ thereby obviating the need for a warrant.‖ (Arkansas v.
Sanders, supra, 442 U.S. at p. 765, fn. 13 (Sanders).) The high court in Sanders
offered this dictum in order to draw a contrast between the example of a gun case
or burglary kit and the container at issue in that case: a green suitcase with no
outward indication of its contents. (See id. at pp. 755, 763–764.)
       A four-justice plurality in Robbins v. California (1981) 453 U.S. 420
(Robbins), reversed on other grounds by United States v. Ross (1982) 456 U.S.
798, elaborated on the Fourth Amendment exceptions suggested in footnote 13 of
Sanders: ―The second of these exceptions,‖ i.e., where a package‘s contents are
open to plain view, ―obviously refers to items in a container that is not closed.
The first exception is likewise little more than another variation of the ‗plain view‘
exception, since, if the distinctive configuration of a container proclaims its
contents, the contents cannot fairly be said to have been removed from a searching
officer‘s view.‖ (Robbins, at p. 427 (plur. opn. by Stewart, J.).) The Robbins
plurality further elaborated: ―Expectations of privacy are established by general
social norms, and to fall within the second exception of the footnote in question a
container must so clearly announce its contents, whether by its distinctive
configuration, its transparency, or otherwise, that its contents are obvious to an
observer.‖ (Id. at p. 428.) The Robbins plurality concluded that the exception did
not apply on the facts there: ―If indeed a green plastic wrapping reliably indicates



                                          8
that a package could only contain marihuana, that fact was not shown by the
evidence of record in this case.‖ (Ibid.)
       Although footnote 13 of Sanders was dicta, various courts have relied on it
to uphold warrantless searches of closed containers with distinctive configurations.
For example, in United States v. Banks (8th Cir. 2008) 514 F.3d 769 (Banks), the
court upheld the warrantless search of a gun case that was ―readily identifiable‖ as
such because it was ― ‗a molded plastic case, a configuration handgun
manufacturers commonly use when initially packaging a firearm for the end
consumer,‘ ‖ and ― ‗had the manufacturer‘s name [―PHOENIX ARMS‖], clearly
indicating an arms product, imprinted on the entire length of the front of the
case.‘ [Citation.]‖ (Id. at p. 775; see also United States v. Taylor (D.C. Cir. 2007)
497 F.3d 673, 680 [upholding warrantless search of gun case]; United States v.
Meada (1st Cir. 2005) 408 F.3d 14, 23 [distinctively configured gun case rendered
its contents ―unambiguous‖].) Other courts, however, have required a search
warrant where a gun case, though recognized by trained officers, was not readily
identifiable as such to lay observers. (See United States v. Gust (9th Cir. 2005)
405 F.3d 797, 803 (Gust) [―courts should assess the nature of a container primarily
‗with reference to ―general social norms‖ ‘ rather than ‗solely . . . by the
experience and expertise of law enforcement officers‘ ‖]; United States v. Bonitz
(10th Cir. 1987) 826 F.2d 954, 956 [same].)
       Beyond gun cases and other single-purpose containers, federal courts of
appeals have divided on whether other indicia, apart from outward appearance,
may negate a reasonable expectation of privacy in the contents of a closed
container. For example, courts have disagreed on whether the label on a container
may justify a warrantless search. (Compare United States v. Morgan (6th Cir.
1984) 744 F.2d 1215, 1222 [―the labels on the bottles of pills made it ‗immediately
apparent‘ to the agents that the items were evidence of a crime‖] and United States

                                            9
v. Eschweiler (7th Cir. 1984) 745 F.2d 435, 439 [envelope ―said safe-deposit box
key, and had the name of the bank on it‖] with United States v. Villarreal (5th Cir.
1992) 963 F.2d 770, 776 [―a label on a container is not an invitation to search it‖
at least where the label does not indicate contraband].)
       In addition, some cases have held that ― ‗the circumstances under which an
officer finds the container may add to the apparent nature of its contents‘ ‖ even
when the container has no distinctive outward appearance. (United States v. Davis
(4th Cir. 2012) 690 F.3d 226, 235; see id. at p. 236 [upholding warrantless search
of a bag containing incriminating bloodstained clothes under a hospital bed where
the officer knew ―it was the practice and procedure of the hospital to place a
patient‘s clothing in a bag on the shelf under his bed‖].) But this approach has
been criticized. (See Gust, supra, 405 F.3d at p. 802 [Sanders exception requires
container to be evaluated ―without regard for the context in which it is found or
the fact that the searching officer had special reasons to believe the container held
contraband‖]; United States v. Donnes (10th Cir. 1991) 947 F.2d 1430, 1438
[invalidating search of a camera lens case even though ―the officer‘s experience
and training could have led him to infer that the camera lens case contained
narcotics in light of the fact that it was found inside the glove with a syringe‖];
United States v. Sylvester (5th Cir. 1988) 848 F.2d 520, 525 [invalidating search of
a hunting box found at the scene of a suspected hunting offense because its
―contents cannot be inferred from simply looking at the box‖].) The latter cases
limited the Sanders exception to containers whose contents may be inferred
strictly from a container‘s outward appearance out of concern that ―the exception
could swallow the warrant requirement.‖ (Gust, at p. 802; see Banks, supra, 514
F.3d at p. 774 [Sanders ―exception is limited to those rare containers that are
designed for a single purpose‖].)



                                          10
       There is similar conflict among the few courts that have addressed whether
the smell of contraband can alone negate a reasonable expectation of privacy in a
closed container. In United States v. Haley, supra, 669 F.2d 201, the Fourth
Circuit said that in addition to a container‘s outward appearance or distinctive
configuration, ―[a]nother characteristic which brings the contents into plain view
is the odor given off by those contents.‖ (Id. at p. 203.) The court upheld the
search of opaque plastic garbage bags on the ground that their ―distinctive
configuration together with the intense marijuana odor brought‖ their contents into
plain view. (Id. at p. 204.) But the court went on to say: ―We do not imply that
both distinctive configuration and odor are necessary to justify the search of the
containers. This Court has previously held that odor alone is sufficient cause to
search such containers as cardboard boxes.‖ (Id. at p. 204, fn. 3, citing United
States v. Sifuentes (4th Cir. 1974) 504 F.2d 845, 848 [interpreting ―plain view‖ to
mean ―obvious to the senses‖ through odor as well as sight].) The Eleventh
Circuit has also endorsed this view. (See United States v. Epps (11th Cir. 2010)
613 F.3d 1093, 1098 [―[W]e have upheld a warrantless search of closed, opaque
packages that reeked of marijuana.‖].)
       By contrast, the Ninth Circuit in United States v. Johns rejected the
argument that because the smell of marijuana ―brought that contraband into plain
view,‖ customs officers had authority to search closed packages without a warrant.
(United States v. Johns, supra, 707 F.2d at p. 1096, revd. on other grounds by
Johns, supra, 469 U.S. at p. 487.) While acknowledging that the smell of
marijuana provided probable cause for a plain-view seizure of the packages, the
Ninth Circuit said ―[i]t is a different question . . . whether an opaque container that
is properly seized may be searched.‖ (United States v. Johns, 707 F.2d at
p. 1095.) ―Our precedent . . . directs that while the odor of marijuana smelled by
the agents would contribute to probable cause to believe that the container held

                                          11
contraband, a recognized exception to the warrant requirement was necessary to
justify a warrantless search. [Citation.] The odor and circumstances of the seizure
supplied the probable cause for a search warrant. They did not eliminate the need
for one.‖ (Id. at p. 1096, fn. omitted.) The court declined to apply the Sanders
exception because ―[t]he wrapped bales here did not announce their contents with
sufficient clarity to eliminate the need for a warrant.‖ (Id. at p. 1096, fn. 2.) The
Second Circuit has similarly rejected the contention that a distinctive odor can, by
itself, bring the contents of a closed container into plain view. (United States v.
Dien (2d Cir. 1979) 609 F.2d 1038, 1045.)
       In considering this split of authority, it is important to note that although
courts have applied the Sanders dictum with varying results, the United States
Supreme Court has never itself applied the Sanders dictum to uphold a warrantless
search of a closed container on the theory that its outward appearance or any other
characteristic announced its contents. In California, only two published cases
have applied the Sanders dictum to uphold a warrantless search; neither addressed
the question before us. (See People v. Green (1981) 115 Cal.App.3d 259
[upholding search of a gun case]; People v. Johnson (1981) 123 Cal.App.3d Supp.
26 [upholding search of a suitcase where defendant told officers it contained
marijuana].) In People v. Chavers (1983) 33 Cal.3d 462 (Chavers), this court,
without citing Sanders, allowed an officer to open a plastic shaving kit after he
had lawfully ―lifted [it]‖ and ―felt the outline of a gun.‖ (Chavers, at p. 466.) But
Chavers, like Guidi, upheld the warrantless search in the context of exigent
circumstances. (Chavers, at p. 473 [the gun was ―an extremely dangerous
instrument posing significant and immediate risks both to the police and to
members of the public in the immediately surrounding area‖].)
       Chavers relied on Guidi and on People v. Lilienthal (1978) 22 Cal.3d 891,
which upheld the warrantless seizure of a distinctively folded square piece of

                                          12
paper that fell from a suspect‘s wallet during a traffic stop. Noting the officer‘s
―experience in making numerous arrests where cocaine or heroin was transported
in paper bindles similar to the one dropped by defendant‖ (id. at p. 898), the court
in Lilienthal concluded that the officer was ―justified in making the plain view
seizure of the paper‖ (id. at p. 899). But Lilienthal did not address whether it was
lawful for the officer to open the paper after seizing it. Chavers also relied on
People v. Guy (1980) 107 Cal.App.3d 593, where the officer ―[u]pon lifting the
baggie . . . was able to conclude it contained a controlled substance.‖ (Id. at
p. 599.) But there, the plastic baggie was transparent, and ―[t]he contraband was
in plain sight.‖ (Id. at p. 600.)
       The unsettled scope of the Sanders dictum and the great variety of factual
scenarios potentially implicating it should give courts substantial pause before
extending it to hold that a distinctive odor may negate any reasonable expectation
of privacy in the contents of a closed container. (See Flippo v. West Virginia
(1999) 528 U.S. 11, 13 [exceptions to the warrant requirement must be ―narrow
and well-delineated‖]; People v. Escudero (1979) 23 Cal.3d 800, 811 [―the courts
must ever be on their guard to keep [exceptions to the warrant requirement] within
firm and narrow bounds‖].) It may seem commonsensical to say that petitioner
here could not have had a reasonable expectation of privacy in a sealed package
that reeked of marijuana and turned out to contain marijuana. But it is a cardinal
Fourth Amendment principle that ―the ‗reasonable person‘ test presupposes an
innocent person.‖ (Florida v. Bostick (1991) 501 U.S. 429, 438.) And it is not
difficult to contemplate situations where the smell of marijuana emanating from a
closed container does not clearly or accurately announce its contents.
       For one thing, the record here does not indicate whether the package
smelled of burned or unburned marijuana. Yet courts, including ours, have
recognized ―a commonsense distinction between the smells of burnt and raw

                                          13
marijuana.‖ (United States v. Downs (10th Cir. 1998) 151 F.3d 1301, 1303; see
Wimberly v. Superior Court (1976) 16 Cal.3d 557, 571–572 (Wimberly); State v.
Larson (Mont. 2010) 243 P.3d 1130, 1142; Bailey v. State (Md. 2010) 987 A.2d
72, 91; Com. v. Waddell (Pa.Super.Ct. 2012) 61 A.3d 198, 217–218; Meek v. State
(Ind.Ct.App. 2011) 950 N.E.2d 816, 818; Taylor v. State (Fla.Dist.Ct.App. 2009)
13 So.3d 77, 79.) Because ―the smell of burnt marijuana is generally consistent
with personal use of marijuana‖ (Downs, at p. 1303), the smell does not
necessarily indicate the presence of marijuana when it emanates from a closed
container. As is familiar to anyone who has sat at a bar, in a lounge, or on an
airplane before the widespread advent of smoking prohibitions, the permeation of
smoke into clothes, purses, briefcases, backpacks, or other articles can leave a
strong and lasting odor. Similarly, an object or person present in a room, car, or
other space where marijuana is burned may acquire a distinctive smell, even
though the object or person does not hold marijuana.
       Prior to the high court‘s decisions expanding the scope of automobile
searches (see maj. opn., ante, at pp. 10–16), we held that ―the odor of burnt
marijuana‖ supported the reasonableness of searching a car‘s interior for evidence
of ―casual‖ or ―personal‖ use of marijuana, but did not by itself provide reasonable
grounds to search the vehicle‘s trunk for raw marijuana to be transported or sold.
(Wimberly, supra, 16 Cal.3d at pp. 572–573.) In Wimberly, we ―differentiate[d]
between the casual user and the dealer of narcotics‖ and explained that the smell
of burned marijuana provided reason to suspect the former but not the latter. (Id.
at p. 572; accord, United States v. Nielsen (10th Cir. 1993) 9 F.3d 1487, 1491
[smell of burnt marijuana in car‘s passenger compartment did not provide
probable cause to believe the car‘s trunk contained marijuana].) As these cases
suggest, the smell of burned marijuana emanating from a sealed package may
indicate that the package or its contents have been in a place where marijuana was

                                         14
consumed. But it does not necessarily indicate that the package contains
marijuana. At the very least, it is questionable whether the smell ―so clearly
announce[s] its contents‖ as to render those contents ―obvious to an observer‖ and
thereby negate any reasonable expectation of privacy. (Robbins, supra, 453 U.S.
at p. 428 (plur. opn.).)
       Moreover, even assuming that an ordinary observer can distinguish
between raw and burned marijuana, the fact that a sealed package smells of raw
marijuana does not necessarily reveal that the package contains marijuana. Like
the smell of burned marijuana, the smell of unburned marijuana may be due to a
transferred or residual odor. In People v. Gale (1973) 9 Cal.3d 788 (Gale), the
―defendant‘s clothing . . . smelled strongly of marijuana‖ (id. at p. 792), and ―both
officers testified they detected a strong odor of fresh marijuana apparently
emanating from defendant‘s person.‖ (Id. at p. 793, fn. 4.) But ―[a] search of
defendant‘s person disclosed . . . no marijuana or other contraband.‖ (Id. at
p. 792; see United States v. Quintana (M.D.Fla. 2009) 594 F.Supp.2d 1291, 1295
[duffel bag ―smelled strongly of raw marijuana‖ but police ―found no marijuana
inside the bag‖]; State v. Davis (La.Ct.App. 1991) 580 So.2d 1046, 1048 [police
―detected a strong odor of raw marijuana during the vehicle search‖ but ―found no
marijuana‖].) As these examples show, it is not difficult to conjure scenarios in
which the smell of marijuana emanating from an otherwise nondescript package
does not reveal its contents with a level of clarity akin to plain view.
       It may be possible for a marijuana odor emanating from a closed container
to be so distinctive and intense that no one could have a reasonable expectation of
privacy in the container‘s contents. As today‘s opinion notes, the record in this
case does not permit us to resolve that issue one way or the other. (See maj. opn.,
ante, at p. 31.) The discussion above suggests there are substantial hurdles that



                                          15
such a plain smell doctrine would have to overcome to justify departing from the
clear, administrable rule that opening a closed container requires a search warrant.
       My observations cast no doubt on the settled proposition that the smell of
marijuana can establish probable cause to search and, in the context of an
automobile search or exigent circumstances, can provide a sufficient basis to
proceed without a warrant. (See, e.g., Cook, supra, 13 Cal.3d at pp. 668–670;
Gale, supra, 9 Cal.3d at p. 794; Mann v. Superior Court (1970) 3 Cal.3d 1, 7.)
But it is an altogether different proposition to contend that the smell of marijuana
can be sufficient by itself to negate any reasonable expectation of privacy in a
closed container. Although the high court has suggested that there might be no
legitimate expectation of privacy in a container whose ―outward appearance‖
(Sanders, supra, 442 U.S. at p. 765, fn. 13) or ―distinctive configuration‖
(Robbins, supra, 453 U.S. at p. 428 (plur. opn.)) clearly announces its contents,
neither the high court nor this court has upheld a warrantless search solely on the
basis of Sanders‘s posited expansion of the plain view doctrine. Lower courts
have not agreed on the scope or proper application of the Sanders dictum, and the
breadth of circumstances potentially implicating it is cause for caution. Moreover,
it is questionable whether the smell of marijuana alone can reveal the contents of a
closed container so clearly as to eliminate any legitimate privacy interest.
       In sum, there is ample reason for courts, including ours, to hesitate before
accepting a novel legal theory that would allow the search of a closed container to
proceed without a warrant based solely on the smell of contraband.


                                                  LIU, J.
I CONCUR: WERDEGAR, J.




                                         16
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Robey v. Superior Court
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 200 Cal.App.4th 1
Rehearing Granted

__________________________________________________________________________________

Opinion No. S197735
Date Filed: June 27, 2013
__________________________________________________________________________________

Court: Superior
County: Santa Barbara
Judge: Edward H. Bullard

__________________________________________________________________________________

Counsel:

Raimundo Montes De Oca, Public Defender, and Patricia Dark, Deputy Public Defender, for Petitioner.

Stephen P. Lipson, Public Defender (Ventura) and Michael C. McMahon, Chief Deputy Public Defender,
for California Public Defenders Association and Public Defenders of Ventura County as Amici Curiae on
behalf of Petitioner.

No appearance of Respondent.

Joyce E. Dudley, District Attorney, and Michael J. Carrozzo, Deputy District Attorney, for Real Party in
Interest.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C.
Hamanaka, Assistant Attorney General, James William Bilderback II and Thomas C. Hsieh, Deputy
Attorneys General, as Amici Curiae on behalf of Real Party in Interest.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Patricia Dark
Deputy Public Defender
County Courthouse, 3rd Floor
Santa Barbara, CA 93101
(805) 568-3494

Michael J. Carrozzo
Deputy District Attorney
1112 Santa Barbara Street
Santa Barbara, CA 93101
(805) 568-2399
