Oooh-ooh that smell... Is the smell of marijuana enough to make an arrest?

A recent Oregon Court of Appeals decision trots out the tired and well worn statement that the "scent of marijuana, emanating from a residence, without more is sufficient to support a finding of probable cause." Thus reaffirming that the mere odor of marijuana is sufficient to justify an arrest or to secure a search warrant.

There are two major problems with the court's reliance on this proposition: First, it may not be true; Second, if it ever was true, the times they are-a changin' - and it increasingly is becoming less and less accurate.

As to the veracity of the statement and its original underpinnings. The statement seems to have it's origins in a 1988 Court of Appeals case, State v. Slowikoski, 307 Or. 19 (1988). That case however addressed the question of whether a drug-dog sniff of the outside of a storage locker was an unreasonable search for constituional purposes. The sufficiency of the odor of marijuana to supply probable cause to search that locker was never actually before the court.

In 1996, the Oregon Supreme Court then went on to claim in another case that the decision in Slowikoski "implicitly" accepted the proposition that the odor of marijuana alone emanating form the storage locker supplied probable cause to search the locker. (State v. Rein, 324 Or. 178 (1996)) The fact that this was simply not true didn't seem to bother the Court. Ever since, most notably in State v. Derrah, 191 Or. App. 511 (2004) and the recent notation in State v. Dampier, the courts have propogated this error. In fact, the precise issue has never been squarely addressed.

Second, with the rapidly increasing lawful use and cultivation of marijuana for medical purposes under the Oregon Medical Marijuana Act, the odor of marijuana alone is less and less likely every passing day to be indicative of illegal activity. Possession of less than one ounce of marijuan has long been a non-criminal violation in Oregon. Untold numbers of Oregonians possess every day less than one ounce of marijuana without comitting a criminal offense. Additionally, as of July 1, 2011, over 49,000 Oregonians possess medical marijuana cards and over 25,000 people have been designated medical marijuana caregivers.

How long will the Oregon Courts continue to uphold the fallacy that the smell of marijuana alone justifies the arrest or search and seizure of Oregonians and their homes and property? Defense lawyers involved in fighting Oregon marijuana charges need to keep pressing issues such as these.