Claims that marijuana smell offensive go up in smoke, odor ruled nicer than garbage

© Ben Nelms
The smell of marijuana is not inherently offensive, the Oregon Court of Appeals ruled on Wednesday. The court tossed out charges against a man who was convicted of crimes after an officer inspected his home when smelling the drug.

Comparing the smell of marijuana to perfume or pungent spices, the three-judge panel stated that pot could reasonably be considered offensive if its odor remains “very intense and persistent,” but that otherwise it doesn’t clear the threshold to become “physically offensive.”

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

Whether or not the smell of burning marijuana is “physically offensive” is particularly important in this case, since it revolved around the arrest of Jared William Lang, who was arrested in November 2012 after an officer acquired a search warrant for an individual potentially creating a “physically offensive” smell, a charge that is categorized as second-degree disorderly conduct.

Instead of arresting Lang on that charge, though, the officer found aerosol cans and other items that were being used to paint graffiti on nearby property. Lang was convicted on three counts of misdemeanor second-degree criminal mischief, Oregon Live reported. He faced several months behind bars as well as a nearly $450 fine.

Lang filed an appeal claiming that his home was searched illegally. As a result of his appeal, the panel decided that it could not definitely say that the smell of burning pot is inherently physically offensive. Instead, such a determining would hinge on how long the smell has lasted, how frequently it occurs and how strong it is.

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

The court said it couldn’t decide if the smell was that bad in this case, since the officer in question and the neighbors who complained did not specify.

“Moser stated that he could smell marijuana outside defendant’s residence when he arrived the first time, but nothing he said suggested how strong the odor was, such as how far away he was when he initially detected it,” the court ruled. “Nor did [the] defendant’s neighbors indicate how intense the odor had been on any given occasion, either inside or outside their residences.”

Oregon is one of four states in the US, plus the District of Columbia, that has legalized the recreational use of marijuana. While the drug is now legal to use, it’s not yet legal to purchase, as the state is still in the midst of establishing rules and regulations for its sale.

On Wednesday, state health officials released a draft of rules for medical marijuana establishments selling the drug to recreational users, since recreational retail sales aren’t permitted to begin until 2016.