Oregon Court of Appeals Rules Marijuana Smoke Is Not “Physically Offensive”
The Oregon Court of Appeals ruled Wednesday that the odor from smoked marijuana is not a “physically offensive” smell, like the smell of “rotten eggs or raw sewage”, tossing the convictions of a Philomath man found guilty of three counts of misdemeanor second-degree criminal mischief.
The case centered on Jared William Lang, age 34. In November of 2012, before marijuana was legalized in Oregon, at least four neighbors near Lang’s apartment complained of the smell of marijuana. One of the neighbors told police “the smell was especially difficult for him because he was currently attending rehabilitation for drug abuse and the smell of marijuana was a ‘trigger’ for him,” according to court records.
An officer dispatched to Lang’s apartment could smell marijuana and asked a judge for a warrant to search Lang’s apartment. Lang was not a medical marijuana patient and his address was not registered as a medical grow site; however, marijuana was decriminalized in Oregon in 1973, so the basis of the warrant was that Lang could be producing a “physically offensive” smell, an act of second-degree disorderly conduct under Oregon law.
The judge granted the warrant and upon the subsequent search the officer found evidence of stencils and spray paint used to vandalize properties in the Philomath area. Lang was convicted on the graffiti charges, fined $440, and sentenced to several months in jail.
Lang appealed the convictions and the Court of Appeals found that the basis for the officer’s search of Lang’s apartment was unfounded. The Court wrote (emphasis mine):
In the state’s view, an unpleasant odor is physically offensive because it is “offensive to the sensory organs of the body—the nose.” According to the state, the odor of burned marijuana is unpleasant to those who smell it. Indeed, the state asserts, “the ‘odor of marijuana’ is synonymous with the dictionary example of what is ‘offensive’ (the ‘odor of garbage.’)”
Although some odors are objectively unpleasant—rotten eggs and raw sewage come to mind—others are more subjective in nature. … Physical offensiveness is not established by the fact that the odor may be associated with substance abuse or criminal activity.
We are not prepared to declare, as the state would have us, that the odor of marijuana smoke is equivalent to the odor of garbage. Indeed, some people undoubtedly find the scent pleasing. Nor can we say, however, that the odor is inoffensive as a matter of law.
While this Appeals Court ruling is positive in declaring that detecting marijuana smoke alone is not objectively a “physically offensive” smell that can lead to police intrusion, they are also leaving the door open that “as the intensity, duration, or frequency of the odor increases”, a reasonable judge with those facts before him could someday decide that marijuana smell has become objectively offensive.