People v. Marshall

MOSK, J.

I dissent.

This court, speaking unanimously in People v. Roberts (1956) 47 Cal.2d 374, 380 [ 303 P.2d 721 ], concluded that the “fact that abuses sometimes occur during the course of criminal investigations should not give a sinister coloration to procedures which are basically reasonable.”

The majority’s neat but indefensible segregation of the human senses—i.e., sight analysis is approved; smell and inferentially the other senses are rejected—results in holding the actions of the police here to be basically unreasonable. I would find the procedures to be entirely appropriate under the existing circumstances.

To require a police officer acting in the performance of his duties to totally disregard his olfactory reaction to marijuana —a leafy plant notorious for its identifiable odor—is utterly unrealistic. Equally untenable is a requirement that a warrant be obtained in this factual situation. As was said in People v. Kampmann (1968) 258 Cal.App.2d 529, 533 [ 65 Cal.Rptr. 798 ]: “To require in the present case that one officer go to obtain a warrant while the other remains camped by the marijuana would further no recognizable interest; it would magnify technicality at the expense of reason.”

*63 The majority hold that “officers may rely on their sense of smell [only] to confirm their observation of already visible contraband, ’ ’ and again, that an odor cannot be deemed ‘ ‘ the same as or corollary to plain view” because this might “open the door to snooping and rummaging through personal effects.” The foregoing assertion constitutes a policy declaration which is totally unsupported by logic or precedent. Indeed, the contrary view is expressed uniformly in California and virtually every other American jurisdiction. Not one case mentioned in the majority opinion supports the proposition that officers may not rely upon the sense of smell to provide justification for the seizure of evidence without a warrant. 1

The two California cases cited as authority for the majority views are People v. Foote (1962) 207 Cal.App.2d 860 [ 24 Cal.Rptr. 752 ], and People v. Chong Wing Louie (1957) 149 Cal.App.2d 167 [ 307 P.2d 929 ], Neither case, either in its facts or law, is helpful to the majority; in both, the officers were initially attracted to the scene through smell, and thereafter took additional steps to observe the contraband. That is essentially the instant circumstance.

In People v. Foote (1962) 207 Cal.App.2d 860, 862 [ 24 Cal.Rptr. 752 ], officers stopped a suspicious motor vehicle, first smelled the odor of marijuana, and then when using a flashlight to further investigate actually observed the contraband. The conduct of the officers was deemed reasonable, the conviction was affirmed and this court denied a hearing.

In People v. Chong Wing Louie (1957) 149 Cal.App.2d 167, 168 [ 307 P.2d 929 ], the officers smelled the distinctive odor of opium before they entered the defendant’s room, and this, along with the subsequent confirmation by sight justified the seizure. Indeed, said the court (at p. 170), the prior “information possessed by the officers before smelling opium would have been insufficient to justify an entry, search or arrest.”

Chong Wing Louie relied upon People v. Bock Leung Chew (1956) 142 Cal.App.2d 400, 402 [ 298 P.2d 118 ], in which the *64 court grappled forthrightly with our problem and reached this conclusion: “The basic question presented is: When officers detect the odor of a substance, the possession of which is made a felony, apparently coming from an apartment, does this justify their making an immediate entrance into and search of the apartment without first procuring a warrant. Since the possession of opium is a felony officers who detect the odor of opium are entitled to believe that the felony of possessing opium is being committed in their presence. We can see no logical distinction in this respect between something apparent to the sense of smell, and the same thing apparent to the sense of sight or to the sense of hearing.” Again this court denied a hearing.

Case after case is consistent with the foregoing. For further example, see People v. Burgess (1959) 170 Cal.App.2d 36, 41 [ 338 P.2d 524 ], in which the court held that the “term ‘in his presence’ is liberally construed [citation]. Presence is not mere physical proximity but whether the crime is ‘. . . apparent to the officers’ senses’ [citation]. The ‘senses’ include those of 'hearing and smell.” And in People v. Clifton (1959) 169 Cal.App.2d 617, 619 [ 337 P.2d 871 ], it was held directly that “An officer may use his sense of smell to afford him knowledge that an offense is being committed in his presence.”

The federal authorities referred to by the majority are inapposite to our problem: Harris v. United States, 390 U.S. 234, 236 [ 19 L.Ed.2d 1067, 1069 , 88 S.Ct 992 ] [the object was in plain view]; Davis v. United States, 327 F.2d 301, 305 [the marijuana was in waste baskets in two separate rooms]; Hiet v. United States, 372 F.2d 911, 912 [the bags were in plain view]; Love v. United States, 170 F.2d 32 , and Paper v. United States, 53 F.2d 184 [both involved discovery of stills; there was no indication of which sense was employed]; Harris v. United States, 331 U.S. 145 [ 91 L.Ed. 1399 , 67 S.Ct. 1098 ] [search of drawers approved; since only draft cards were seized, we may assume no smell was involved]. In United States v. Barone, 330 F.2d 543, 544 , the officers were held properly on the premises as a result of using their sense of hearing.

Only California v. Hurst, 325 F.2d 891, 898 , and United States v. Vallos, 17 F.2d 390 , can give some superficial solace to the majority, for the use of touch was there disapproved. But factually the cases are distinguishable for the officers felt leafy substances after they had already improperly seized the packages; they were attempting post facto justification. Such *65 procedure would be frowned upon even if sight were involved.

Reference to People v. Bennett, 28 App.Div.2d 526 [ 280 N.Y.S.2d 258, 259 ], gives no aid or comfort to the majority. To the contrary, the court there approved seizure in the hallway of a suitcase from which officers detected the odor of narcotics. The court held that the proper seizure in the hallway did not justify subsequent entry and search of a nearby apartment.

Turning to other jurisdictions, we find universal approval of the doctrine that all of the human senses may be used by law enforcement officers and that sight alone is not the determinative test in ascertaining justification for a search without a warrant. The leading case most frequently cited is Spires v. Commonwealth (1925) 207 Ky. 460 [ 269 S.W. 532 ], in which the court held “That an officer is not limited to information derived through the sense of sight, but may rely and act as well upon information obtained through his other senses, is thoroughly established. ... A little common sense added to the information conveyed by their senses of sight, smell and hearing left no room for reasonable doubt by the officers that defendant had [contraband] in his possession, and in their presence. ’ ’

Prom that same jurisdiction the court in Davis v. Commonwealth (Ky. 1955) 280 S.W.2d 714, 716 , made it clear that “It is not necessary that the officer should see the conduct constituting the offense if the commission of the offense is made known to him by any of the five senses or combination of them. In the dark, one might be struck by an assailant without warning or notice so that the commission of the offense would be made known only by the sense of feeling. Likewise, the commission of an offense may be made known by the sense of hearing, as in the instant case. . . . It is not hard to conceive of offenses the commission of which may be discovered by use of the senses of smell and taste.”

To the same effect is a decision in Utah Liquor Control Com. v. Mandeles (1940) 99 Utah 507 [ 108 P.2d 512, 513 ] : “. . . if an officer becomes aware, through any of his five senses, of one or more details of the commission of an offense, and that detail or those details are of sufficient probative value to notify a reasonable person that an offense is being committed in his presence, the officer may rely upon his knowledge so acquired, and without a warrant, arrest the offender or seize the property as the case may demand.

*66 Cases are legion upholding the use of any of the senses by law enforcement officers in ascertaining that there was probable cause for an arrest or a search and seizure. A sense of smell was involved in Massa v. State (1929) 159 Tenn. 428 [ 19 S.W.2d 248, 249 ]; Ingle v. Commonwealth (1924) 204 Ky. 518 [ 264 S.W. 1088, 1091 ] [in which the “atmosphere was loaded with the perfumes of whisky”]; the sense of hearing was approved for an arrest or search in State v. Peters (Mo. 1922) 242 S.W. 894 ; Dilger v. Commonwealth (1889) 88 Ky. 550 [ 11 S.W. 651 ]; Goodwin v. Allen (1953) 89 Ga.App. 187 [ 78 S.E.2d 804 ]; Wiggins v. State (1932) 25 Ala.App. 192 [ 143 So. 188 ]; Faber v. State (1944) 62 Ariz. 16 [ 152 P.2d 671, 673 ]; State v. McAfee (1890) 107 N.C. 812 [ 12 S.E. 435 , 10 L.R.A. 607 ]; any of the senses was approved in State v Rigsby (1942) 124 W.Va. 344 [ 20 S.E.2d 906 ]; Romans v. State (1940) 178 Md. 588 [ 16 A.2d 642, 647 ] [“heard or perceived by any other sense”]; State v. Lutz (1919) 85 W.Va. 330 [ 101 S.E. 434 ].

Thus it seems irrefutably clear that no prevailing law or precedent supports the majority position. Reason and common sense also dictate a contrary conclusion. Two simple illustrations will suffice to demonstrate the impraeticality of limiting discovery of evidence to visual conception.

Assume an officer is fired upon in a totally dark room, the assailant casts the weapon aside and flees. There can be no doubt that the officer could search for and seize the weapon. The reasons relate to the use of his senses. While the room was dark and he could see nothing, he heard the shot, smelled the gunpowder, and felt the bullet graze his cheek.

Assume an officer, in searching a closet for a fugitive, comes upon a corpse under a sheet. Certainly he could uncover the body although he originally could not see it, because he smelled the putrefaction and felt the shape of a body.

The facts before us fall into the same general category as the foregoing hypothetical situations. The officers entered the apartment, properly so according to the majority, in order to make an arrest. They checked each room and found no one. In the course of searching for a person or persons, one officer looked in a closet, and while so doing smelled the sweet odor of marijuana emanating from a package the contents of which he could not see without unwrapping.

The majority seek to magnify the importance of the officer’s testimony in which he conceded he was satisfied no one was in the bedroom closet before he became aware of the odor. *67 The officer’s priorities were perfectly logical; he was searching for people, not objects. But reason rebels at the insistence of the majority that the officer must ignore the distinctive aroma of contraband merely because he failed to flush out his human quarry and his sense of smell was aroused instead of his sense of sight.

I return, therefore, to my initial paragraph. The test, according to Roberts , is whether the police procedures are “basically reasonable.” Prevailing law, and common sense, indicate the conduct of the officers here was entirely reasonable.

I would affirm the judgment.

McComb, J., and Burke, J., concurred.

Respondent’s petition for a rehearing was denied August 14, 1968, and the opinion was modified to read as printed above. McComb, J., Mosk, J., and Burke, J., were of the opinion that the petition should be granted.

The majority, in their footnote 2 and throughout their opinion, fail to distinguish between warrantless officers breaking into premises, in violation of the Fourth Amendment, and those properly on the premises who fortuitously discover contraband without searching therefor. In Chapman v. United States (1961) 365 U.S. 610 [ 5 L.Ed.2d 828 , 81 S.Ct. 776 ], the officers originally entered the premises unlawfully and in Agnello v. United States (1925) 269 U.S. 20, 31 [ 70 L.Ed. 145, 148 , 46 S.Ct. 4 , 51 A.L.R. 409 ], the search was clearly invalid because it involved premises “several blocks distant from [the] house, where the arrest was made.” Here the majority concede the entry was lawful.