In State v. Lang, the Oregon Court of Appeals ruled that an affidavit that supported a search warrant did not contain facts sufficient to show that the smell of marijuana coming from the defendant’s residence was “physically offensive.” 273 Or App 113 (2015). The affidavit supported probable cause to believe that the defendant had committed the crime of second degree disorderly conduct, which requires the creation of a hazardous or physically offensive condition without license to do so. The smell was coming from the defendant’s house, a separate dwelling, and was smelled by neighbors. Upon entering, the Philomath Police discovered evidence of graffiti writing and the defendant was convicted of three counts of criminal mischief for that alleged activity after a motion to suppress the evidence was denied.
The court said the test was whether or not the odor would be “objectively offensive – that is it must be offensive to an ordinary, reasonable person under the circumstances.” Id. at 122. While the court confined its analysis to the affidavit in question, it was at a minimum a great stretch of imagination for the police to attempt this activity. If people creating “normal” (but potentially offensive) odors is punishable as a crime, that could lead to all kinds of unintended results and selected prosecutions. Certainly the same reasoning could then extend to tobacco smoking, incense burning, and any range of activities that cause no harm to others under these types of circumstances. With marijuana now legalized, it is unlikely that we will see a similar case again in the appellate courts.