Oregon Court Rules Pot Smell Is Not ‘Physically Offensive’

As the United States slowly relaxes its marijuana laws, more and more questions over acceptable use have been brought before the nation’s courts. In Oregon, a Court of Appeals recently ruled that marijuana smoke is not physically offensive.

The case stemmed from a 2012 incident where a Philomath man, Jared William Lang, was visited by local police. One of Lang’s neighbors had called the police because he could smell marijuana coming from Lang’s apartment which, according the neighbor, was a “trigger” for him because he was a recovering drug addict.

After speaking with more neighbors, and verifying that Lang did not have a medical marijuana card, the officer on the scene applied for a search warrant on the grounds that Lang may have been committing second-degree disorderly conduct by emitting a “physically offensive” smell.

Upon searching the home, law enforcement found spray paint and stencils, which they took as an indication that Lang was committing graffiti on street signs and other locations in the area. Lang was charged and found guilty on three counts of second degree criminal mischief.

Lang was sentenced to several months in jail and charged a $450 fine.

In his petition, Lang does not dispute any of the facts of the case. Instead, the crux of his argument hinged on the wording of the statute used to justify the search warrant, specifically the term “physically offensive.” Lang contends that marijuana cannot be physically offensive because not every person finds that smell offensive.

As such, if marijuana is not physically offensive then the warrant used to search Lang’s home, and the subsequent arrest, was invalid. In the decision, the court sided with Lang’s argument that marijuana was not necessarily offensive.

“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,” read the decision. “Although some odors are objectively unpleasant—rotten eggs or raw sewage come to mind—others are more subjective in nature.”

Though legal persecution of marijuana users has ended in many states, civil protections in the law have yet to catch up. For example, in Colorado marijuana users still face employment discrimination, regardless of its legality. The broad implication of this ruling is that the smell of marijuana coming from someone’s home is not sufficient grounds for a search warrant, that is, at least in Oregon.‘’

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