In the abstract, the propositions of law which criminal defendant advances are correct. Ordinarily a search is invalid unless made pursuant to a warrant. There are, however, limited exceptions to this rule, such as where the search is incident to a lawful arrest which is made contemporaneously with it, or where the search and seizure without a warrant are dictated by 'exigent circumstances' which make the obtaining of a warrant impractical as in the case of a moving vehicle, or where contraband is threatened with imminent removal or destruction.
In one case, which dealt with contraband, the court stated that in a case of exigent circumstances 'it would be immaterial that the arrest followed the search, or that there was no arrest at all' that the only relevant inquiry is whether it was probable that contraband was both present and threatened with imminent removal or destruction. This rule has its basis in reason and common sense. Law enforcement officers should not be restrained from seizing known contraband which is threatened with imminent removal or destruction simply because at the time of the seizure there is no one present to be arrested. If, for instance, a large package were being loaded by a conveyor belt into a plane about to depart the jurisdiction and a torn part of it exposed the edge of a machine gun, it would make scant sense to contend that an officer would be legally impotent to make a warrantless seizure of that package because the seizure was not incidental to a lawful arrest. In the said case, the 'exigent circumstances' consisted of the fact that the suitcases were brought to an airport 'shortly before the scheduled departure time of the flight' on which they were to be taken.
No such emergent situation existed here for the package of marijuana possession was being held in the baggage room for the addressee who was to call for it. Therefore, after the detectives arrived, it was not threatened with either imminent removal or destruction, nor would it have been impractical for Tobin to secure a warrant before the package could have been removed, as to the affirmative of which the burden rested on the prosecution since one of the two detectives could have gone for a criminal warrant while the other remained at the baggage room ready to arrest any person calling for the package, for which arrest there was ample probable cause by reason of the marijuana which was seeping out and the odor of marijuana which it had. Thus there was nothing to prevent the police from securing a warrant on a proper showing. Therefore the opening of the package was an unlawful search since it was too remote from the time of defendant's arrest, some ten hours later, to be considered a search incidental to and contemporaneous with an arrest.
Defendant uses what he contends is, and what I have determined to be, an unlawful search as the fulcrum for the lever of his argument that the marijuana was unlawfully seized and should therefore be suppressed. In this contention defendant is in error. The unlawful search of the package at 5 A.M. is not the alpha and omega as to whether it should be suppressed. The question rather is whether the unlawful search vitiated and nullified the prior existing sufficient probable cause to arrest (by reason of the odor and the seeping marijuana so that the subsequent seizure of the package contemporaneously with defendant's arrest was also unlawful. I answer the question in the negative.
To Be Cont...