If there’s one marijuana-related fact pretty much everybody seems to agree about, it’s this: The stuff smells something fierce. Love it or hate it, that thick, funky scent of soil and sweet grass is distinct; even children can place it in a matter of seconds.
But that doesn’t mean everyone feels the same about the reek of cannabis. A state appellate court in Oregon ruled in August that the notorious stench is not “physically offensive” in itself, no matter how some people may feel.
A three-judge panel of the Oregon Court of Appeals declared that the aroma of cannabis isn’t akin to rotting garbage, spoiled eggs, or other universally noxious odors.
Neighbor complained about “physically offensive” stench of marijuana
The case started when a neighbor filed a complaint against Jared William Lang, accusing him of smoking so much marijuana he created a “physically offensive” aroma as defined by Oregon’s disorderly conduct statute.
Police arrived at Lang’s home and told him the smell amounted to disorderly conduct, then used that interpretation as an excuse to conduct a search. They arrested him after they found paraphernalia of graffiti.
Marijuana is legal in Oregon now, but at the time it was allowed only for medical use. Lang never faced charges involving cannabis, but he was charged with misdemeanor criminal mischief for the graffiti items.
Judges threw out Lang’s conviction
The appellate judges tossed out Lang’s conviction, declaring that they couldn’t label marijuana odor “physicially offensive,” if only because no one seems to agree on whether it’s a good smell or a bad one.
“We are not prepared to declare that the odor of marijuana smoke is equivalent to the odor of garbage,” the judges wrote in their opinion. “Indeed, some people undoubtedly find the scent pleasing. An odor that is very intense and persistent could reasonably be regarded as offensive even if it ordinarily might be considered quite pleasant – perfume, for example, or pungent spices.”
The search of Lang’s home occurred three years ago, after his neighbor complained of a “physically offensive smell.” Since that might constitute disorderly conduct, the officers felt they had probable cause to conduct a search. The court ultimately disagreed.
Perceptions of the smell of marijuana “subjective”
The problem, the judges said, is that gauging the noxiousness of marijuana smoke is too “subjective,” and depends on the “intensity, duration, or frequency” of each smoker’s use. It also depends on whether the person smelling the aroma is a user, among other factors. One man’s eau de garbage, in other words, is another man’s perfume.
Most importantly, the court’s opinion means Oregonians no longer need to worry that the mere smell of cannabis could get them in trouble. It also closes a small but threatening loophole that could have re-criminzalized some aspects of marijuana use despite statewide legalization.
But the ruling will have no effect elsewhere. Marijuana is now legal in four states and the District of Columbia, but in most places even the smell of it is grounds for a criminal search warrant.