Pubdate: Wed, 26 Aug 2015
Source: Los Angeles Times (CA)
Copyright: 2015 Los Angeles Times
Author: Matt Pearce


An Oregon case focuses on the possible ' olfactory assault' of a 
neighbor's pot smoking. ' We are not prepared to declare, as the 
state would have us, that the odor of marijuana smoke is equivalent 
to the odor of garbage.'

Every now and then, the people must call upon the wisdom of the 
American judicial system to answer the urgent questions of our time.

For instance: Does weed smell bad?

Not necessarily, an Oregon appeals court says.

"Indeed, some people undoubtedly find the scent pleasant," the Oregon 
Court of Appeals said last week in along, serious, thoroughly 
considered, precedent-setting and inadvertently amusing ruling.

As with many court cases, the back story is a little convoluted, 
although the basic scenario is probably familiar to many Americans 
with neighbors or roommates who like to light up.

The ruling stemmed from a 2012 Philomath, Ore., criminal case in 
which a man living in a triplex-phoned police to complain about the 
smell of marijuana wafting into his apartment from the building's center unit.

The caller, who had been living there for eight years, complained 
that the smell from the middle apartment had been getting "worse and 
worse," according to the court's summary of the case.

More seriously, another resident who was undergoing treatment for 
drug abuse told police that the stench from the middle unit was an 
unwelcome emotional "trigger." Other residents said they smelled weed 
two or three times a week.

A police officer, spotting two people outside the middle apartment, 
first tried to play peacemaker instead of enforcer and asked them to 
put a fan in their window or to do something to get rid of the smoke.

But when the smells continued - and here's the key legal part-the 
officer got a search warrant from a judge to go into the apartment to 
look for evidence of second degree disorderly conduct, a misdemeanor.

The charge suggested that the annoying weed smell, under state law, 
constituted "a hazardous or physically offensive condition by any act 
which the person is not licensed or privileged to do."

In other words, forget possession, which only became legal in Oregon 
in July - producing smoke from truly skunky weed could be a crime in 
itself. At the time, possessing less than an ounce of marijuana 
carried a lesser charge: a noncriminal violation similar to a traffic 
ticket, and not something an officer could seek a warrant for.

This is where the case gets a bit complicated. When the officer went 
inside with the warrant, he instead found cans of spray paint and 
stencils that police believed had been used to paint graffiti around town.

That's how Jared William Lang, who lived in the middle apartment, 
ended up charged and convicted on three counts of criminal mischief- 
for the graffiti.

Last week's ruling on stinky weed sprang from an appeal Lang filed on 
the graffiti charges. Lang argued that police had violated his rights 
by not presenting probable cause to enter his apartment. ( Evidence 
taken from an unlawful search is no good in court, as any decent "Law 
& Order" fan knows.)

Lang's appeal raised a basic challenge: The officer should not have 
been granted the warrant in the first place because the smell of 
marijuana alone was not a "physically offensive condition" under 
state law. Therefore, there was no reason to come inside.

In a 4,500- word ruling that sent appeals judges flipping through 
dictionaries and using phrases like "olfactory assault," Oregon's 
appeals court agreed - somewhat - and threw out Lang's conviction.

It turned out that state law didn't really have a definition for what 
"physically offensive condition" means, driving the judges to check 
with Webster's Third New International Dictionary and philosophically 
mull over the nature and ethics of smells.

It's not that weed can't smell bad or be offensive to some people, 
Judge Erika L. Hadlock wrote in her opinion for the court. But some 
people happen to enjoy it.

"We are not prepared to declare, as the state would have us, that the 
odor of marijuana smoke is equivalent to the odor of garbage," 
Hadlock wrote. "Nor can we say, however, that the odor is inoffensive 
as a matter of law. We could perhaps say with confidence that a 
fleeting whiff of marijuana smoke would not offend a reasonable 
person, but as the intensity, duration or frequency of the odor 
increases, it stands to reason that it would become objectively 
offensive at some point, particularly depending on the location in 
which it is smelled."

As a result, Hadlock decided that the smell of weed alone was at best 
a "neutral factor" in the case. What mattered more was "the totality 
of the circumstances" - how strong the smell was, or how long it 
lasted, and how much it intruded into other people's homes.

And what Hadlock found in Lang's case was that police evidence of 
tremendous, overwhelming weed smoke coming from Lang's apartment was 
a little too skimpy to justify a warrant.

"With regard to the intensity of the odor, the [ officer's] affidavit 
is nearly silent," Hadlock noted soberly, as she tried to assess with 
legal precision exactly how stinky Lang's apartment was.

In a footnote, Hadlock noted that she did not intend to show any 
disrespect to the local judge who had issued the warrant.

"Before this opinion was issued, our case law provided no guidance on 
the factors relevant to the determination of whether an odor 
constitutes a physically offensive condition," Hadlock wrote.

So Lang's case was remanded to local officials, who seemed to have 
lost their key evidence in the graffiti case because of a new legal 
precedent on irritating smells. The Oregon attorney general's office 
said it did not plan to appeal.

Lang couldn't immediately be reached Tuesday for comment.
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MAP posted-by: Jay Bergstrom