IF IT’S LEGAL IS IT STILL A NUISANCE?
Nov. 15, 2018
As the landscape of marijuana legalization changes, the many related laws evolve accordingly. An Oregon court recently ruled that the smell of marijuana smoke cannot be considered inherently offensive. It is in fact pleasing to some people, and therefore not grounds to pursue any complaints concerning the odor. This ruling came about concerning an Oregonian man’s appeal of a case where police searched his apartment due to a pot smell complaint and subsequently found graffiti supplies for which he was charged. The man appealed the ruling against him on the graffiti charges because the original search was based on pot odor. The appeals court agreed and threw out his conviction, adding that marijuana cannot be considered objectively offensive in the way that raw sewage or rotten eggs might be.
"We are not prepared to declare that the odor of marijuana smoke is equivalent to the odor of garbage. Indeed, some people undoubtedly find the scent pleasing," the 9th Circuit appeals court wrote in their opinion, State v. Lang 2015.
Why does this matter?
In terms of legalization, if responsible users are still profiled and treated like criminals, then in practical terms, nothing has changed. In fact, just a couple years ago a Denver ordinance was proposed to make it legal to call the police for pot smell complaints. Because of legalization and the general desire by the public to reduce police involvement in these matters, it was shot down. But it is a reminder that these nuisance issues are real and come up despite marijuana law reform. Now that many states acknowledge medical or recreational use, it’s vital not to treat citizens participating in legal activities as outliers.
Another important consequence of the ruling is that police may not be able to use pot smoke to obtain a warrant to search your home, as it would be insufficient probable cause for a nuisance or disorderly conduct charge. Similar rulings were also made recently in Arizona and Massachusetts. Texas has a strong home privacy law that was ruled to extend to pot smells in the case of State v. Leo and Ian Steelman in 2002; and Alaska has long protected the rights of smokers in their own homes - the case Ravin v. State established this back in 1975.
Other courts have also ruled in favor of privacy in the home, and the threshold to search a home is much higher than a vehicle. However, the unanimous ruling in Massachusetts, Commonwealth v. Overmeyer 2014, indicates a shift on this front, that smell alone may not be sufficient for car searches either. Justice Lenk, writing for the court, stated that, ”The 2008 initiative decriminalized possession of one ounce or less of marijuana under State law, and accordingly removed police authority to arrest individuals for civil violations.”
How Can This Ruling Help?
One of the complaints concerning public smoking has been odor. A ruling which states that objections to the smell are subjective means an outright ban may no longer hold up. Recently, activists in Denver began working with local businesses to draft ways to permit public smoking in some areas. A change in attitudes about the smell will surely make this plan easier to develop.
Marijuana businesses may also benefit from a softened approach to nuisance odors, as they are responsible for ventilation issues in stores and grow facilities. While the court did not rule out the fact that prolonged or intense exposure may be considered a nuisance, it would have to be proven.
Lastly, while car searches are still going to happen, it is a step in the right direction to see vehicles become part of the conversation. Too many patients and responsible users are subject to search because of supposed lingering odors, despite legalization and sometimes without indications of any bad driving. Your car is still, for the most part, seen as a public place, so different probable cause and search standards apply.
In the meantime, the best approach is to avoid smoking and carrying in your vehicle. When transporting purchases from the dispensary, keep the items in the package they give you; and periodically clean out your car for any accidental remnants. Despite still needing to take precautions, it’s a positive turn when the courts begin to reduce the stigma related to marijuana.