Jared William Lang, 34, was acquitted after the Oregon Court of Appeals ruled that the odor of cannabis coming from his apartment was not “physically offensive” and a search warrant should never have been served at his home.
The neighbors on both sides of Lang’s apartment reported him to law enforcement officials in November of 2012 because they could smell marijuana wafting from his apartment. According the the court summary, one of the neighbors reported that “the smell was especially difficult for him because he was currently attending rehabilitation for drug abuse and the smell of marijuana was a ‘trigger’ for him.” The second neighbor claimed that the aroma entered his apartment at least 2 to 3 times per week and was getting worse.
After these complaints were reported, an officer arrived at Lang’s apartment, and admitted that the smell of marijuana smoke was present. Next, the officer was granted a search warrant by a Benton County judge under the premiss that Lang may have committed second-degree disorderly conduct. Statute ORS 166.025, among other reasons, states that a person can be charged with disorderly conduct if he or she:
“Creates a hazardous or physically offensive condition by any act which the person is not licensed or privileged to do.”
Viewing that the smell of marijuana could be considered “physically offensive,” the judge issued the warrant. During the search, officers found aerosol pain cans and stencils which suggested that Lang had been spray painting graffiti, therefore committing vandalism. Lang was charged with three counts of misdemeanor second-degree criminal mischief, ordered to pay a $440 fine, and sentenced to several months in jail.
Using the defense that the reasons for search were unlawful and never should have led to a criminal mischief charge, Lang appealed the conviction. A panel of three judges, Timothy Sercombe, Erika Hadlock and Douglas Tookey, agreed with Lang, ruling that:
“The odor must be physically offensive. That is, the smell itself must be unpleasant. Physical offensiveness is not established by the fact that the odor may be associated with substance abuse or criminal activity. Although a person could be offended as a result of those associations, that offense is moral or intellectual in nature, not physical.”
The panel of judges also concluded that “some odors are objectively unpleasant—rotten eggs and raw sewage come to mind—others are more subjective in nature.