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COURT OF APPEALS RULES MARIJUANA ODOR 'NOT INHERENTLY OFFENSIVE'

Implications on Pendleton Nusiance Ordinance Not Immediately Known.

As the state continues to sort through marijuana regulations, a recent court ruling could affect a Pendleton ordinance prohibiting the odor of marijuana from spreading to another property.

The Court of Appeals ruling on Wednesday was the result of a case involving criminal mischief charges brought against a Philomath man.

According to the ruling, a Philomath police officer obtained a warrant to search Jared William Lang's apartment after neighbors repeatedly complained about the smell of marijuana smoke emanating from Lang's residence.

The officer searched Lang's home on suspicion of second-degree disorderly conduct, the warrant citing a section of state statute that forbids people from subjecting others to a "physically offensive condition."

After the officer found graffiti supplies in his apartment, Lang was charged with four counts of criminal mischief and was eventually convicted of three counts in Benton County Circuit Court.

Lang appealed his case to the Court of Appeals, which sided with Lang and reversed the circuit court decision.

In the written ruling, a panel of judges delved into the minutia of how a smell could be considered "physically offensive."

"Physical offensiveness is not established by the fact that the odor may be associated with substance abuse or criminal activity," it states.  "Although a person could be offended as a result of those associations, that offense is moral or intellectual in nature, not physical."

The ruling states that while some smells are objectively offensive - like rotten eggs and raw sewage - other scents are more subjective.

Where the odor is experienced and its intensity were also factors that needed to be considered, the court wrote.

In a key passage, the court refused to declare marijuana odor inherently offensive.

While acknowledging that the odor entering the homes of Lang's neighbors weighed in favor of concluding that the odor was offensive, the panel wrote that the affidavit the officer presented to the court didn't establish whether the odor was intense and persistent.

It is unclear whether the Court of Appeal's ruling will invalidate Pendleton's marijuana odor ordinance or require significant changes to its language.

Police Chief Stuart Roberts and City Attorney Nancy Kerns were unavailable for comment.  City Manager Robb Corbett declined to comment because he was unfamiliar with the ruling.

There are some differences between the particulars of the Lang case and the city ordinance.

The Philomath case dealt with the interpretation of a criminal statute, while Pendleton's law is a noncriminal ordinance imposed by the city and not the state.

Additionally, the intent of the ordinance was to prohibit odors that arise from the drying of marijuana plants, although the text of the ordinance doesn't distinguish between odors that are derived from marijuana drying and marijuana smoke.

The odor ordinance was passed by the Pendleton City Council May 19 after Roberts reported that several residents who were growing medical marijuana were drawing odor complaints from their neighbors.

One of those complaints was from Southwest Marshall Avenue resident Mike Arbogast, who said the marijuana scent emanating from his neighbor's house was permeating his house and car.

At the time, Roberts said marijuana pungency was in the nose of the beholder.

"I'm not going to talk about the intensity," he said.  "It's a very subjective standard in terms of whether people are offended by it or not."