Appeals Court Rules Pot Smoke Is Not Offensive

Residents of Oregon will just have to deal with the odor of marijuana if a neighbor’s pot smoke happens to come wafting into their homes. An Oregon Court of Appeals decided on Wednesday that the smell of burning cannabis was no more “unpleasant” then many other common odors and could not be considered an “olfactory assault.”

On the basis that there are a number of truly offensive odors that are considered “physically offensive,” the court ruled that the smell of pot smoke did not exactly fall into this category.

“We are not prepared to declare that the odor of marijuana smoke is equivalent to the odor of garbage,” the ruling stated. “Indeed, some people undoubtedly find the scent pleasing.”

What makes this an important ruling has less to do with people having the right to smoke weed in the privacy of their own home, without overly sensitive neighbors stirring up trouble over the smell, and more to do with civil rights. The verdict surrounds the case of Jared William Lang, who had police show up at his home with a search warrant in 2012 after neighbors complained that they smelled marijuana coming from his apartment.

Interestingly, the warrant was obtained based on the stretch that Lang may have been generating a “physically offensive” odor, an offense considered second-degree disorderly conduct.

Once inside his home, officers discovered a number of items that implicated Lang in a number of criminal acts. He was arrested and convicted of three counts of criminal mischief. However, rather than take his lumps and go willingly to jail, Lang appealed the convictions, arguing that he was the victim of an illegal search.

On Wednesday, the appeals court panel decided that Lang’s convictions should be reversed because the smell of marijuana does not fall in line with the definition of a “physically offensive” odor. Therefore, the basis of the officer’s search was not valid.

The court said there was simply not enough evidence to prove that Lang’s pot smoke was “intense or persistent” enough to be considered offensive.

“Who determines whether a particular odor is offensive?” the judges wrote. “Although some odors are objectively unpleasant – rotten eggs or raw sewage come to mind – others are more subjective in nature.”

What this means for the average Oregon stoner is that they shouldn’t have to worry about the cops showing up at their doorstep simply because a neighbor complained about the strong odor of marijuana. Yet, those living in apartments may still have to contend with policies established under lease agreements, which may prohibit “smoking” cannabis on the premises.