Oregon: Odor of Marijuana Smoke From Neighbor's Apartment Not Legally Offensive, Court Rules

SmokingMarijuana[StuffByCher]

"We are not prepared to declare that the odor of marijuana smoke is equivalent to the odor of garbage," the appeals court wrote. "Indeed, some people undoubtedly find the scent pleasing."

By Steve Elliott
Hemp News

The Oregon Court of Appeals on Wednesday refused to declare the smell of marijuana smoke drifting into neighbors' homes as "unpleasant."

The appeals court ruled that marijuana smoke isn't necessary offensive to all people, although rotten eggs or raw sewage are physically offensive odors to everyone, reports Aimee Green at The Oregonian.

"We are not prepared to declare that the odor of marijuana smoke is equivalent to the odor of garbage," the appeals court wrote. "Indeed, some people undoubtedly find the scent pleasing."

With the appeals court ruling, recreational cannabis users in Oregon may rest assured that smoking weed at home shouldn't result in any law enforcement hassles.

The appeals court ruling came in the case of Jared William Lang, who was 34 in November 2012 when an officer with the Philomath Police Department came to his apartment after neighbors on both sides reported the smell of marijuana coming from his unit. One person claimed "that the smell was especially difficult for him because he was currently attending rehabilitation for drug use and the smell of marijuana was a 'trigger' for him," according to an appeals court summary.

Other neighbors said they smelled weed coming from Lang's apartment several times a week.

The cop noted he could smell burned marijuana upon arriving at Lang's apartment. He asked a Benton County judge for a search warrant, on the grounds Lang might have committed second-degree disorderly conduct by creating a "physically offensive" smell.

The warrant was granted by the judge and the officer found evidence of an unrelated crime, evidence that indicated Lang had been spraying graffiti on street signs, and walls 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 $40 and sentenced to several months in jail.

Lang appealed those convictions, arguing that the search warrant was bogus. The appeals court found it couldn't declare the odor of marijuana smoke offensive, or not, to the average person. The appeals court ruled that offensiveness depends upon the "intensity, duration, or frequency" of the smoke.

The smell could be considered offensive to a reasonable neighbor, the appeals court found, especially if the neighbor is in the sanctuary of his or her own home. But the court ruled that the officer who applied for the search warrant of Lang's home hadn't sufficiently described such an intense, long or frequent odor coming from Lang's apartment.

"(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?"

"Although some odors are objectively unpleasant -- rotten eggs or raw sewage come to mind -- others are more subjective in nature," the appeals court reasonably wrote.

The ruling was made by a three-judge panel: Timothy Sercombe, Erika Hadlock and Douglas Tookey.

Photo: Stuff by Cher