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If It’s Legal Is It Still a Nuisance? 
 
 
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. 
 
AUTHOR: Colin McCallin