Alaska recently joined Washington, Oregon, Colorado and Washington, D.C. in legalizing recreational marijuana. More states are on the same path.
The governor appointed a Marijuana Control Board to address the “entrepreneurial,” work place and law enforcement issues tied to the legalization. Not the least for police is the issue of DUI enforcement. How do police reliably and efficiently test for THC? What amount of THC translates into impairment? Colorado police warn others not to wait until the legislation passes to start training cops.
In the meantime, a state appeals court has shined a beacon of light on whether stinky weed might constitute a non-drug-related offense justifying a search warrant.
The Call, Search Warrant, and Trial
Imagine working in a state that has legalized recreational marijuana. A citizen — we’ll call him “D” — calls police at 1930 hours and reports marijuana smoke is coming into his home. You’re dispatched to the triplex where D lives. When you arrive, you smell marijuana smoke coming from the middle unit. You knock on that door but no one answers, so you leave.
About an hour later, D calls and complains again — again you go to the triplex. Two people are standing outside the middle unit. You tell them the neighbors are irritated with the smell and ask them to use a fan or do something else to remove the smoke. You don’t smell smoke at this time.
You then speak with D and three other people in his apartment. They each report having smelled marijuana at 1930 hours, D says that he called the police the second time after he “again began to smell the odor.” D says this isn’t the first time marijuana odor has come into the home.
He says he’s lived there eight years and “the neighbors in the middle rental have gotten worse and worse.” One of the other people tells you the smell is especially difficult for him because he’s currently doing rehab for drug abuse and the smell is a “trigger” for him.
Next, you speak with two people who live in the third unit of the triplex. They tell you they smell marijuana two or three times a week, that there’s a lot of foot traffic at the middle unit, and they believe “meth is likely being smoked at the residence in addition to marijuana.” You ask if that causes them any concern. They say it does and they’ve noticed the “appeal of the neighborhood has diminished.”
You determine no resident of the middle unit has a medical marijuana card and the place isn’t a registered site for growing medical marijuana. You decide the resident has committed the misdemeanor of second-degree disorderly conduct by subjecting the neighbors “to a physically offensive condition” without “a license or privilege to do so.”
You take a search warrant affidavit to the circuit court. The court issues a warrant and your subsequent search discovers cans of spray paint and stencils that had been used to make graffiti around town. The defendant is charged with four counts of criminal mischief. Before trial, he moves to suppress the evidence discovered in his home. The court denies the motion, and, after a jury trial, he’s convicted of three of the counts.
The Rest of the Story
This is a real case. Speaking as a former prosecutor, responding Officer Matt Moser of Philomath (Ore.) is exactly the kind of officer I’d accompany to hell and back with nothing but a bucket of ice water. He tried to resolve a long-standing neighborhood dispute and a reasonable request from some citizens.
When that didn’t work, he thought more innovatively than most lawyers and came up with a disorderly conduct charging theory comparable to “makes unreasonable noise” (another subsection of Oregon’s disorderly conduct) that convinced a judge.
The story doesn’t end with a conviction, however. On appeal, the defendant argued the smell of burned marijuana is not a “hazardous or physically offensive condition” within the meaning of Oregon’s disorderly conduct statute. The state argued a “physically offensive condition” need only induce bodily pain or unpleasant sensations — in this case, in the nose.
Judges are lawyers. If you want to see how lawyers can pontificate on a disorderly conduct case and raise it to the level of an “olfactory assault” of constitutional dimension, read the opinion.
Initially, the appeals court agreed with the state’s interpretation of “physically offensive,” reasoning that setting off a stink bomb could constitute disorderly conduct even if it caused no physical harm.
Then, the court waxed philosophical and asked:
“Who determines whether a particular odor is offensive? Although some odors are objectively unpleasant — rotten eggs and raw sewage come to mind—others are more subjective in nature.”
If you want a treatise on stinky stuff — this opinion is for you. From discussing context — a manure smell in a stockyard might not be disorderly conduct, but the same smell in a restaurant might be.
The court concluded that while some may find the odor of weed offensive, others may find it pleasant. Accordingly, the court declined to find, as a matter of law, that burning marijuana alone is physically offensive. Instead, the court put the facts to the duration, frequency, and intensity tests and found the evidence lacking.
Lessons for Cops
Officer Moser knew his statutes and thought outside the box. Both are good lessons for officers. He just needed more facts from the neighbors about the intensity, frequency, and duration of the stinky weed that would’ve convinced the judges they would’ve found the conditions physically offensive.
Keep on fighting the good fight, Officer Moser — and the rest of you brothers and sisters of the shield do the same.
