The Oregon Court of Appeals on Wednesday refused to declare the smell of marijuana smoke wafting into neighbors’ homes “unpleasant.”
The appeals court ruled that although rotten eggs or raw sewage are “physically offensive” odors to all, marijuana smoke isn’t necessarily so.
“We are not prepared to declare that the odor of marijuana smoke is equivalent to the odor of garbage. Indeed, some people undoubtedly find the scent pleasing,” the appeals court wrote in throwing out the second-degree criminal mischief convictions of a Philomath man whose home was searched in 2012 because of the aroma of pot drifting from it.
The ruling is sure to strike a chord with some Oregonians who involuntarily have become familiar with the smell of cannabis originating from neighboring houses or apartments with the legalization of recreational marijuana on July 1. Given the appeals court ruling, recreational users may rest assured that smoking pot at home shouldn’t draw any hassles from police.
The appeals court considered the case of Jared William Lang. He was 34 in November 2012 when a Philomath police officer visited his apartment after neighbors on both sides reported the smell of marijuana coming from his unit. One person told the officer “that 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 the appeals court summary of the case.
Another neighbor said that he’d lived in his unit for eight years and that “the neighbors in the middle rental (had) gotten worse and worse,” according to the summary. Two more neighbors said they smelled pot coming from Lang’s unit two to three times per a week.
The officer noted that he could smell burnt marijuana upon arrival at Lang’s apartment. The officer asked a Benton County judge for a search warrant of Lang’s unit — on the grounds that Lang might have committed second-degree disorderly conduct by creating a “physically offensive” smell.
The judge granted the warrant and the officer found evidence of a completely unrelated crime — aerosol paint cans and stencils that indicated Lang had been spraying graffiti on street signs, walls, fences and other property in Philomath.
Lang was found guilty of three counts of misdemeanor second-degree criminal mischief after a trial in the vandalism case. He was fined $440 and sentenced to several months in jail.
Lang appealed the convictions, arguing that the grounds police used to search his home were bogus. The appeals court found that it couldn’t declare the odor of marijuana smoke offensive — or not — to the average person. The appeals court ruled that depends on the “intensity, duration, or frequency” of the smoke.
At some point, the smell could be considered offensive to a reasonable neighbor, especially if the neighbor is in the sanctuary of his or her own home, the apeals court found.
But the court ruled that the officer who applied for the search warrant of Lang’s home hadn’t sufficiently described an intense, long or frequent odor of pot emanating from Lang’s home.
“(A)n odor that is very intense and persistent could reasonably be regarded as offensive even if it ordinarily might be considered pleasant — perfume, for example, or pungent spices,” the appeals court wrote.
“Who determines whether a particular odor is offensive?” the appeals court added. “Although some odors are objectively unpleasant — rotten eggs or raw sewage come to mind — others are more subjective in nature.”