State v. Lang

Marijuana smoke smell coming from a defendant’s residence is not enough to establish probable cause of criminal mischief for a search warrant.

Defendant appealed three counts of criminal mischief. Defendant’s conviction was based on evidence found pursuant to a warrant, granted after Defendant’s neighbors complained of the scent of marijuana smoke coming from Defendant’s apartment. Under ORS 166.025, criminal mischief requires a “hazardous or physically offensive condition.” Defendant argues that marijuana is not a hazardous or physically offensive condition, and the warrant was therefore improperly issued. The Court held that “physically offensive” encompasses odors that are “more than minimally unpleasant but need not be dangerous or harmful.” Furthermore, a smell must be physically unpleasant, not just morally unpleasant. The Court held that a whiff of marijuana smoke could not offend a reasonable person, but that other factors must come into consideration, such as: intensity, duration, frequency, and location. Because there was limited information in the affidavit as to the intensity, duration, and frequency of the marijuana smell, the Court held that the warrant was not based on probable cause. Reversed and remanded.