Here’s an interesting story: two state Court of Appeals in the United States have ruled that the scent of marijuana alone cannot be used to secure a search warrant. It seems pretty shallow, but similar cases in Oregon and Arizona have paved the way for the establishment of this ruling.
Stench of weed
In 2012, a man called dup the police in Philomath, Oregon to complain about the smell of marijuana from his apartment building’s central unit. Another resident undergoing drug abuse treatment even said that the stench was an unwelcome emotional trigger that keeps him from getting treated. Other neighbors also complained of the smell.
Though the police initially tried to pacify things by advising the residents on what to do to get rid of the smoke, he eventually secured a search warrant to look for evidence of second-degree disorderly conduct. According to the charge, the weed smell constituted “a hazardous or physically offensive condition by any act which the person is not licensed or privileged to do.”
But when the officer got into the apartment, all he found were cans of spray paints and stencils. The owner, Jared William Lang, was convicted of three counts of criminal mischief—all because of his graffiti paints.
An overpowering odor
In Arizona, police officers were the ones who first detected the smell. While patrolling near South Sixth Avenue and West 35th Street, South Tucson cops smelled a powerful odor coming from a warehouse. Believing it was marijuana, the officers obtained a search warrant from a local magistrate, but found nothing inside the warehouse.
But since the pungent smell persisted, the police once again obtained a second warrant based on the nothing but the smell, this time for the adjacent warehouse. Their raid uncovered a growth operation consisting of 357 plants and 53 pounds of grown marijuana.
Warehouse resident Ronald Sisco was charged with felony possession of marijuana, growing marijuana, narcotic drug possession, and even child abuse, because his 22-month old child had been exposed to the operation.
Questionable warrant validity
Despite the difference in the cases, both their convictions were overturned for one simple reason: the search warrant is not valid in the first place.
For Oregon Judge Erika Hadlock, the state’s definition of ‘physically offensive condition’ that can be used to obtain a warrant has a lot of loopholes.
“We are not prepared to declare, as the state would have us, that the odor of marijuana smoke is equivalent to the odor of garbage. Nor can we say, however, that the odor is inoffensive as a matter of law,” Hadlock said. “We could perhaps say with confidence that a fleeting whiff of marijuana smoke would not offend a reasonable person, but as the intensity, duration or frequency of the odor increases, it stands to reason that it would become objectively offensive at some point, particularly depending on the location in which it is smelled.”
But the officer’s affidavit did not contain anything that described the intensity of the odor, so it is not enough to obtain a search warrant.
The judges in Arizona were of the same opinion, saying that there is not enough evidence presented to constitute a warrant. “In the absence of such data, and given that hundreds of Arizonans and scores of dispensaries now have permission to lawfully cultivate or store marijuana, the magistrate had no basis to assume that most warehouses currently containing marijuana in Arizona do so illegally,” wrote judges Peter Eckerstrom and Michael Miller.
“Were we to adopt the state’s suggestion that scent alone furnishes probable cause of crime, medical marijuana patients would become second-class citizens, losing their rights to privacy and security, including privacy within their own homes,” they wrote.
In your opinion, what other ways can the police use to crack down on illegal marijuana? Voice your opinions in the comments section below – your opinion matters to the nation.