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Oregon Court of Appeals Sniffs the Weed and Finds it “not inherently unpleasant”: Oregon v. Lang


Oregon v. Lang, 273 Or App 113 (2015), (Benton County Circuit Court CM1320460; A154498)

Citations below are to the online, unofficial advance sheet version of this case, and available for viewing (at least as of today) at:

This is another case that would be quite instructive to laypeople interested in the law, assuming they read the whole case and also perhaps talk to a lawyer or judge about it, rather than relying on a brief news report – or a blog post.

One cannot read this case, or most any other case for that matter, through a “common sense” lens, especially if it’s someone else’s idea of common sense and that person hasn’t the slightest clue how laws are made, published, administered, enforced, litigated, or interpreted.

Among other knowledge to be gained from reading this case: one might learn about probable cause, how statutes are interpreted, how judges decide the meanings of words, the role of legislative history, rights and responsibilities of law enforcement personnel, the value of “making a good case” by the police and the prosecutor, etc. Yes, there is much more to learn from this case and perhaps especially the limits of the law and perhaps also how not to handle a neighbor-law problem. (Do not assume these have easy legal or non-legal remedies.)

Aside: We may also assume that none of the parties to the case or the judges ever lived in a small apartment with a large, long-haired dog that had been sprayed full on by a skunk. There is nothing “not inherently unpleasant” about smelling skunkweed-equivalent for days on end. Just saying (g).

Excerpts from Oregon v. Lane:

“... defendant’s appeal is limited to challenging whether the affidavit furnished probable cause to believe that someone in his residence had created a physically offensive condition….” [p. 119]

“…. The parties’ arguments about the meaning of the term “physically offensive” present a question of statutory interpretation. To determine the legislature’s intent, we look to the text of ORS 166.025 in context as well as the legislative history and, if necessary, to interpretive maxims. State v. Gaines, 346 Or 160, 171-72, 206 P3d 1042 (2009). We begin with the words of the statute themselves. Because the term “physically offensive” is not statutorily defined, we assume that the legislature intended the words to carry their ordinary meaning. “Physically” means “in respect to the body.” Webster’s Third New Int’l Dictionary, 1707 (unabridged ed 2002). “Physical,” in turn, means “of or relating to the body <~ strength>—often opposed to mental.” Id. at 1706. “Offensive” means “giving painful or unpleasant sensations” and is synonymous with “nauseous, obnoxious, [and] revolting.” Id. at 1566. Those synonyms suggest that the word “offensive” implies a greater degree of displeasure or discomfort than the word “unpleasant” might, standing alone....” [pp. 119-120]

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