The Smell of Marijuana As Crime

In the summer of 2017, I interviewed Keith.Footnote ⁷ Keith worked at the local office of a national drug policy nonprofit in Denver. The organization supports a sharp deescalation of the war on drugs. Keith played a key role in the organization’s support of legalization efforts. Keith’s support for marijuana legalization was “narrowly focused on how legalization would change the criminal justice and drug policy landscape from a law enforcement perspective and how marijuana would no longer be the gateway into the criminal justice system that it has been for decades for primarily young, poor black and brown men in this country.” Keith, a lawyer by training, entered the drug policy world through what he affectionately called “the nonprofit industrial complex.” He worked as head of the Colorado Social Justice Action Network’s (CSJAN) Committee on Racial Justice and its Racial Profiling and Police Accountability Project. As a black man from the historically black Denver neighborhood of Five Points, Keith was no stranger to tensions between police and communities of color, but his work at CSJAN reinforced his sense of the problem’s urgency:

The smell of marijuana played a unique role enabling this dynamic:

There is no doubt that marijuana has played an outsized role in US police practice (Geller and Fagan Reference Geller and Fagan2010; Provine Reference Provine2011; Meares Reference Meares2014). This goes back decades, but it gained steam in the last third of the twentieth century. By 1982 arrests for marijuana accounted for 72 percent of all drug arrests nationally. Marijuana arrests declined through the 1980s as enforcement priorities shifted. The 1990s, however, saw a resurgence. Between 1990 and 2002, marijuana arrests increased by 113 percent, even as overall arrests declined by 3 percent. And the vast majority of these arrests—78.7 percent—were for possession alone (King and Mauer Reference King and Mauer2006).

In US criminal law, a marijuana arrest, like any drug arrest, can be triggered in several ways. Visual observation is the most explicit and the one most clearly defined by law. The “plain view doctrine,” established in 1971, removes the warrant requirement for objects in plain view of police. Just how far the plain view doctrine can be extended to other senses, however, remains unsettled. Smell has proven particularly difficult. With the escalation of marijuana enforcement beginning in the late 1960s, courts were increasingly called upon to rule on odor’s ability to serve as probable cause and provide a warrant exception. The so-called “plain smell doctrine” developed rapidly, but unevenly, over this time. Marijuana was the overwhelming focus in these cases—so much so that, had it not been for the prioritization of marijuana enforcement, this strain of Fourth Amendment thinking would never have developed (Sprow Reference Sprow2000).

The US Supreme Court has resisted establishing that smell alone provides probable cause for a warrantless search. However, the lower federal courts have not been so reticent. In 1972, the Ninth Circuit in United States v Leazer (1972) held that the detection of marijuana odor in a car by a law enforcement officer provided probable cause for arrest. In 1973, the Third Circuit in United States v Valen (1973) validated the search of a suitcase based only on the smell of marijuana as detected by a law enforcement officer. In 1974, the Ninth Circuit in United States v Johnston (1974) held that probable cause could be based on odor alone. Also in 1974, the Fourth Circuit in United States v Sifuentes (1974) suggested that once the odor of marijuana has been detected, it falls under plain view and thus provides for a warrantless search. In 1975, the Second Circuit in United States v Pond (1975) held that the odor of marijuana was sufficient to establish probable cause.

This trend continued through the early 1980s. The DC Circuit in United States v Russell (1982) postulated that “plain touch” and “plain smell” were already encompassed by the “plain view” doctrine. In 1983, the Fourth Circuit in United States v Norman (1983) made a similar argument, stating that for something to fall under the “plain view doctrine” it need only be “obvious to the senses” and, to this end, “need only reveal itself in a characteristic way to one of the senses” (quoted in Sprow Reference Sprow2000, 296n42). This case upheld the use of marijuana odor to conduct a warrantless search of garbage bags.

The 1990s saw further affirmation of the plain smell doctrine in the lower federal courts. In 1991, the Tenth Circuit in United States v Morin (1991) stated plainly that the “odor of marijuana alone can satisfy the probable cause requirement to search a vehicle or baggage.” In 1992, the Fifth Circuit in United States v Pierre (1992) upheld the warrantless search of a vehicle by border agents who had stopped it for routine questioning and claimed to smell freshly burned marijuana. In 1993, the Sixth Circuit in United States v Garza (1993) held that a law enforcement officer established probable cause to search a truck when he claimed to smell marijuana emanating from the back of the cab. In 1998, the Tenth Circuit in United States v Downs (1998) held that the odor of raw marijuana emanating from a vehicle gave officers probable cause to search the trunk. That same year, the First Circuit in United States v Taylor (1998) found that detection of the odor of marijuana gave an officer probable cause to search the whole vehicle. And, in 1999, the Eighth Circuit came to the same conclusion in United States v Neumann (1999). Thus, by the end of the 1990s, all but the Seventh and Eleventh Circuit courts had ruled directly on plain smell, and the majority of circuit courts had affirmed that smell, and smell alone, could provide probable cause sufficient to conduct a warrantless search (Sprow Reference Sprow2000).

It is no coincidence that the majority of these cases involved vehicles. The 1990s, in particular, saw the investigatory traffic stop become a key focus of law enforcement nationally. This was part and parcel of the continued escalation of the war on drugs, in which frontline law enforcement officers at the state and local level were recruited into the work of drug enforcement (Epp, Maynard-Moody, and Haider-Markel Reference Epp, Maynard-Moody and Haider-Markel2014). The Drug Enforcement Administration (DEA), for instance, had trained over twenty-seven thousand state and local officers in investigatory stops by the late 1990s. Many of these officers, in turn, went on to train others. Police were trained to see traffic stops as a possible opening into a broader criminal investigation. Making appropriate use of the senses during roadside encounters was key to making this practice work. One widely read training manual encouraged officers to conduct a “sensory pat down” of the vehicle and driver once they had been stopped. It stated: “This is the pivotal period when you must quickly decide whether the subject you’ve just stopped is ‘just’ a traffic violator who should be warned or ticketed and sent on his way—or a felony suspect who warrants the full Criminal Patrol treatment” (quoted in Epp, Maynard-Moody, and Haider-Markel Reference Epp, Maynard-Moody and Haider-Markel2014, 37).

Odors are a key component of this “sensory pat down.” While the Supreme Court of the United States has not endorsed the plain smell doctrine, it has affirmed that odor may be used as one piece of evidence under a “totality of the circumstances” approach. That is, while odor alone might not provide sufficient evidence to conduct a warrantless search, odor combined with other sources of evidence largely does. The US Supreme Court affirmed this approach most recently in the 2013 case of Florida v Harris (2013), which called into question the use of a drug-sniffing dog’s sniff to establish probable cause. In a unanimous opinion, Justice Elena Kagan noted: “The question—similar to every inquiry into probable cause—is whether all the facts surrounding a dog’s alert, viewed through the lens of common sense, would make a reasonably prudent person think that a search would reveal contraband or evidence of a crime. A sniff is up to snuff when it meets that test” (Florida v Harris 2013, 1058).

Odor is thus a powerful enforcement tool. This is particularly so given that the standard for making such a judgment is the “common sense” of a “reasonably prudent person.” Such “common sense” has been shaped by marijuana’s criminalization over the past eighty years. This leads to the easy, even intuitive association between the odor of marijuana and illegality. As Colorado Supreme Court Justice Nancy Rice put it, “common sense dictates that the smell of burning marijuana gives rise to a very high probability that the search of a particular place will reveal contraband or evidence of a crime” (Mendez v People 1999, 281). This led another Colorado judge to worry that there is thus “a tendency to let this aroma keep tipping the balance in favor of searches, stops, and arrests,” even, as we will see, in instances where marijuana has undergone some degree of legalization (People v Zuniga 2016, 1063).

The Smell of Marijuana As Nuisance

But there are limits to the court’s notion that “the odor of marijuana is still suggestive of criminal activity.” Just ask the Reillys. Michael and Phillis Reilly own an expanse of land in Pueblo County, Colorado. They often visit to hike, ride horses, and see friends. They describe it as a “beautiful rolling pasture with sweeping mountain vistas that include views of Pike’s Peak” (Safe Streets Alliance v Hickenlooper 2017, 879). In 2015, they learned that a marijuana-growing operation was being built on neighboring property. It would supply Alternative Holistic Healing, a medical and recreational dispensary in Black Hawk, as well as other locations. The Reillys were not pleased. They worried that the grow operation would interfere with their ability to continue using their property as they were accustomed and diminish its value. So they sued. The federal district court that heard their case initially dismissed it. But the appeals court was more open to the idea that the “noxious odors” being emitted by the marijuana growing operation were causing the Reillys harm (Safe Streets Alliance v Hickenlooper 2017, 279-80)

Since the cultivation facility was legal and licensed by the state, the Reillys had no immediate recourse under criminal law. Instead, they sought civil remedy using nuisance laws. “Nuisance” is a broad category that can encompass virtually any activity deemed objectionable, and there is a long history of odors being treated as nuisances. In the United States, states have broad authority to regulate nuisances using the police power. Colorado is no exception (Morgan et al. Reference Morgan, Hansgen, Hawthorne and Miller2015, 1128). As the court noted, “Colorado … has long recognized that invasion of one’s property by noxious odors itself gives rise to a nuisance claim and is a direct injury to property” (Safe Streets Alliance v Hickenlooper 2017, 886). The court affirmed the Reillys’ assertion that the marijuana odors were both interfering with their enjoyment of the property and reducing its value. “It is reasonable to think,” the court stated, “that a potential buyer would be less inclined to purchase land that is burdened by a nuisance—such as recurrent foul odors—than she would be to purchase the identical property if it were unencumbered” (Safe Streets Alliance v Hickenlooper 2017, 887)

The Reillys were not alone in their agitation over marijuana odors produced by cultivation facilities. “Six months ago our neighborhood smelled like a neighborhood, and now it smells like someone is holding up a package of marijuana to your face,” said Bart Axelman, complaining about odors emanating from a cultivation facility near his home in Pitkin County. One of his neighbors described the smell as “disgusting and nauseating,” adding: “I thought there was something wrong with our septic tank. Something needs to be done to eliminate the nauseating odor now” (Carroll Reference Carroll2015). Marijuana odor complaints increased following the passage of Amendment 64 as production expanded for the recreational market. Some complainants were not even aware that the odor was marijuana. “I had an old guy call, complaining about this unusual odor whenever he drove past Mississippi and Santa Fe,” Denver Department of Environmental Health investigator Ben Siller relayed to a Denver Post reporter in 2013: “I knew right away what it was, and told him that it was marijuana. His reaction was, ‘What?’” (Meyer Reference Meyer2013). By August 2014, less than a year after sales of recreational marijuana began, marijuana odor complaints comprised approximately 30 percent of all odor complaints in Denver (Hughes Reference Hughes2014).

Denver code follows state laws mandating that odors cannot exceed a threshold of one part odor to seven parts filtered air (Morgan et al. Reference Morgan, Hansgen, Hawthorne and Miller2015, 1128). A device called a field olfactometer is used to determine if an odor violates this standard. The device, with the brand name “Nasal Ranger,” looks something like a telescope for the nose. If the odor in question does not exceed the one-to-seven threshold, the emitter can still be cited if five complaints are received within a twelve-hour period (Hughes Reference Hughes2014; Guide to DEH’s Odor Regulations 2015). None of the marijuana odor complaints received in 2014 surpassed the one-to-seven ratio (Hughes Reference Hughes2014). Siller wagered that complaints would taper off over time: “[The smell] is discernible. It’s there but you get used to it, just like any odor” (Meyer Reference Meyer2013). Denver City Council President Mary Beth Susman was less certain, locating the challenge in the specific qualities of odor itself: “Odor can be subjective. It’s hard to legislate odor. The strength that is required to register on the Nasal Ranger is something we need to look at. I also wonder if people will get used to the smell and the dislike of it now may change over time” (Meyer Reference Meyer2013).

Despite the difficulties of “legislating odor,” cities and counties continued to expand rules and regulations targeting odor following legalization. Amendment 64 gave local jurisdictions the power to decide whether or not to allow production and sale of marijuana. The majority chose not to allow it, leading to a concentration of cultivation and retail facilities in specific parts of the state. Within those jurisdictions, most sought to address marijuana odors through municipal code. In 2015, for instance, the city of Breckenridge passed an ordinance requiring cultivation facilities to prevent marijuana odors from being “detected by a person with a normal sense of smell from any adjoining lot, parcel, or tract of land not owned by the owner of the regulated structure, or from any adjoining public right of way” (Breckenridge, Colo., 2015). The city of Fort Collins passed a similar ordinance, stipulating that marijuana odors should not be “noticeable” beyond the property line on which cultivation is taking place, and that owners would be held liable if such odors were detected (Fort Collins, Colo., 2014).

The cities of Pueblo, Breckenridge, and Boulder required marijuana growers to have ventilation systems in place to prevent odors from being detectable from the outside of the business or on any adjacent property by, in the words of the Boulder municipal code, “a person with a normal sense of smell” (Boulder, Colo., 2020). Pueblo extended this requirement to home cultivation, requiring cultivators to install air filtration systems that would prevent any person “with a normal sense of smell” from detecting the odor outside the building (Pueblo, Colo., 2015).

Cumulatively, such ordinances established three principle commitments in the municipal regulation of marijuana odors. First, that the constant odor of marijuana was not going to be accepted as the “new normal” following legalization. Second, that marijuana growers were responsible for containing the odors emitted by their operations and would be penalized if they failed. And, third, that the mechanism for determining when an odor became a problem was the “normal sense of smell” rather than formal thresholds measured by devices such as the Nasal Ranger. This reinforced the idea that the complete absence of marijuana odor would remain normative and that any disruption of the olfactory enjoyment of a given space could constitute cause for reprimanding a marijuana business.

Marijuana is inherently pungent so smell has long been an issue for growers. But this fact alone does not account for why odors have been such a flashpoint following legalization. Of greater significance are the conditions under which marijuana is being grown. The overwhelming majority of marijuana in Colorado is grown in indoor facilities (warehouses and special rooms at retail locations) in close proximity to population centers. This is due to several factors. First, municipalities often require marijuana to be grown indoors. Zoning and security requirements also make indoor growing the easiest (and often only) option from a compliance perspective, as producers have very specific obligations to track, store, and transport product in all stages of growth. Second, the legacy of prohibition means that many experienced growers, who learned their craft in the unauthorized market, are accustomed to growing indoors. Third, indoor facilities allow growers to control the many variables that impact production, such as light, nutrients, and water. This allows businesses to maximize output and create a more consistent product. Fourth and finally, indoor growing allows cultivation facilities to be conveniently located close to, and often times within, the dispensaries where the product is sold.

Though this makes sense from a regulatory and business standpoint, it makes odor a challenge, particularly where cultivation operations neighbor residential areas or other businesses. Denver-based LoDo Wellness Center experienced this firsthand. In 2013, it had its application to convert from a medical to a recreational dispensary challenged based on smell complaints. LoDo Wellness is named after its location in “Lower Downtown,” an area strategically redeveloped as a commercial destination. One complainant described the smell from LoDo Wellness as “severe and intolerable.” Another described it as “overwhelming.” Neighboring businesses also complained. An owner of a clothing store accused LoDo Wellness of creating “a stench in the neighborhood” and “a blight in our midst which is bad for business and our quality of life.” Owners of a hotel told the city that “some hotel guests have complained of [marijuana] odor.” In a letter opposing the dispensary’s license, the president and chief executive officer of the hotel referred to “pollution being emanated from the business” and “the environmental hazard and nuisance caused by this business” (Huspeni Reference Huspeni2013).

Despite these complaints, LoDo Wellness was able to obtain its license and continues to operate today. A dispensary named Starbuds, however, was not so lucky. In 2016, it was the first cultivation facility in Denver to have its license revoked. This revocation rested overwhelmingly on odor complaints. Its location on Brighton Boulevard in the Elyria-Swansea neighborhood on Denver’s north side put it in a unique position. Like other north side neighborhoods, Elyria-Swansea has a mix of residential and commercial buildings. It has traditionally been a hub of industrial manufacturing in the city. One neighborhood, Globeville, got its name from the Asarco Globe Plant that once operated in the area (it is now a Superfund site after it was found to be contaminating groundwater and soil with metal). North Denver is still home to a variety of odor-emitting industries, including asphalt manufactures, a wood treatment facility, a pet food manufacturer, animal-rendering facilities, a wastewater treatment facility, a coal-fired power plant, and two smelters (Morgan et al. Reference Morgan, Hansgen, Hawthorne and Miller2015, 1127). Odors are thus a long-standing concern in North Denver (Morgan et al. Reference Morgan, Hansgen, Hawthorne and Miller2015; Eltarkawe and Miller Reference Eltarkawe and Miller2018).

But this concentration of industry and, more importantly, industrially zoned real estate, has made North Denver the epicenter of marijuana cultivation in the city. Just three of the city’s eleven council districts (two of which are in North Denver) are home to almost five hundred licensed cultivators, while five districts lack even a single marijuana growing facility (Gelardi Reference Gelardi2016). This uneven distribution is due, in part, to zoning laws that limit where cultivation facilities can be located. It is much easier to locate in an industrial, commercial area than a residential area. Many of these industrial areas are in close proximity to low-income communities (like Globeville and Elyria-Swansea), leading to resentment and suspicion from residents. Furthermore, while marijuana dispensaries are barred from locating within one thousand feet of schools and churches, the same rules do not apply to cultivation facilities. Nor are public forums required as part of the licensing process for cultivation facilities located in industrially zoned areas. This limits residents’ ability to contest their presence.

Carmen Garcia resides in a community where the number of marijuana cultivation facilities has grown exponentially since 2014. “Just because we’re poor it’s not fair that they bring these kind of businesses here,” she stated at a public hearing on the issue in 2016. “These kind of things do not happen in rich and wealthy neighborhoods” (Gelardi Reference Gelardi2016). Luz Lomeli likewise lives in a neighborhood impacted by the increase in marijuana cultivation. In 2016, the smell of marijuana was a constant in and around her daughters’ school, which is located near a marijuana cultivation operation. Some days, she would tell her children not to go outside because the odors were so strong: “They stay inside the cafeteria, they stay inside the school, which at the same time… I do feel bad because, I mean, they do want to come out especially if it’s a nice day” (Gelardi Reference Gelardi2016).

Starbuds opened its Elyria location on Brighton Boulevard in 2013. The bottom floor of the two-story building was the retail sales floor, and the top floor was devoted to cultivation. In 2016, the cultivation facility housed 240 plants. The building had previously been a deli and was vacant for many years before being leased by Starbuds.Footnote ¹⁰ As noted above, state laws limit residents’ ability to challenge the licensing of cultivation facilities in industrially zoned areas. But different procedures are in place in mixed-use areas such as the Starbuds location. Neighborhood activists, residents, and other business owners were thus able to challenge Starbuds’s license renewal. They centered their objections on the odors being emitted by the cultivation facility on the second floor. Nola Miguel, a member of a registered neighborhood organization called Cross Community Coalition, submitted a letter detailing the problems associated with the odors coming from Starbuds:

She noted that several residents had complained of symptoms triggered by the odor, such as headaches and burning throat, and that it had an additional health impact by preventing them from going outside to exercise. But the complaint went further. It referenced the Denver Retail Marijuana Code (DRMC). Section 6-214(a)(3) explains the conditions under which a retail marijuana cultivation license would not be renewed. Four of the five criteria were particularly important in the case:

The hearing officer determined that sufficient evidence had been presented to deny Starbuds’s license renewal based on criteria listed under section 6-214(a)(3) of the DRMC. Based on testimony by residents, odors were having “a deleterious impact on public health, safety and the general welfare” by triggering headaches and making it difficult for residents to go outside and enjoy the outdoors or exercise (subparagraph d). Odors were negatively affecting “nearby properties or the neighborhood in general” by impeding the enjoyment and use of backyards, bus stops, sidewalks, and neighboring businesses by customers (subparagraph b). And odors were frustrating “the implementation of the city’s comprehensive plan and any adopted neighborhood plan” by violating the odor mitigation directives contained in the Elyria and Swansea Neighborhoods Plan (2015), which had been adopted by the Denver City Council in 2015 (subparagraph a). This plan was focused on the redevelopment of the neighborhoods, adding green space and new businesses—including the $1.1 billion National Western Center project—and reducing the negative impact of existing industries on quality of life. Odor reduction was a significant goal of the plan, and marijuana odors were specifically targeted. The report includes a paragraph entitled “Address the Odor Impacts of the Marijuana Industry”: “Mitigate the odors and emissions from marijuana grow facilities on residential neighborhoods through methods such as land use designation, siting, buffering, good neighbor agreements, encouraging the addition of carbon filtering, or other means” (Elyria and Swansea Neighborhoods Plan 2015, 77).

At the same time that Starbuds was being challenged, the Denver City Council was working to address the disproportionate impact of the expanded legal marijuana industry on neighborhoods like Elyria-Swansea. Again, odor concerns were at the center of the discussion. Though the council split on capping the number of licenses that would be issued to businesses, there was broad agreement that odor could and should be addressed. The agreement was so broad, in fact, that council member Albus Brooks, who represented Elyria-Swansea, became concerned that too much faith was being put in the city’s ability to control odors through targeted ordinance enforcement: “When you begin to saturate and when you begin to concentrate [businesses], there’s no smell ordinance that can identify where this is coming from” (Murray Reference Murray2016a).

The City Council charged Denver’s Department of Environmental Health with developing rules that would govern odors produced by the marijuana industry. The department convened an Odor Advisory Group. This group included representatives from government, industry (including the marijuana industry), and neighborhood associations, including several participants in the Starbuds case. This multi-stakeholder approach sought to minimize conflict by including those businesses that would be subject to the new regulations in the rule-making process while also working to “empower community members with knowledge to be partners in regulation of odorous industries.”Footnote ¹³ The primary outcome of the group’s efforts was the requirement that all odor-producing industries submit an Odor Control Plan. Detailed descriptions of the system to be installed and practices to be used were required, as well as descriptions of administrative controls, engineering controls, and procedures for tracking and responding to complaints. This plan would then be subject to approval by state and city agencies and would continue to be part of licensing and operating requirements. Thus, rather than suggesting revisions to zoning laws, growing practices, or other factors that would most directly shape the distribution of odors, the group sought a technological fix overseen by administrative processes.Footnote ¹⁴

In closing this section, it is important to highlight how odor complaints have provided a venue for those who object to marijuana legalization to contest it. The antimarijuana legalization group, Smart Colorado, for instance, directs people on its website to call and complain about marijuana odors, employing a strategy visible in all of the cases surveyed here.Footnote ¹⁵ There is also the case of the Reillys that opened this section. They were no ordinary plaintiffs but, rather, the founders of the nonprofit, Safe Streets Alliance, whose mission includes “reducing crime and illegal drug dealing” (Safe Streets Alliance v Hickenlooper 2017, 879-80). Indeed, it is their organization that is named as the plaintiff in the court proceedings. And their suit encompassed not just those individuals involved in the cultivation facility near their property but also a host of others linked to legalization itself, including the former governor and the director of the Marijuana Enforcement Division. Their choice of venue—the federal court system—was also strategic in that they were working to trigger the enforcement of federal laws, under which marijuana remains illegal. In fact, their case was not a standard nuisance case but, rather, a case under the Racketeer Influenced and Corrupt Organizations Act (RICO) (1970), in which the civil complaint related to smell was one of the perceived harms giving the plaintiffs standing in federal court. RICO laws have been used as a civil tool to prosecute organized crime.Footnote ¹⁶

Something similar may have been going on in the Starbuds case. It provided a rare opportunity for residents of low-income neighborhoods to challenge the expansion of marijuana cultivation in their communities. Even one of Starbuds’s owners stated: “[T]his is an attack against the industry, not just Starbuds” (Murray Reference Murray2016b). To this end, the Starbuds case is the exception that proves the rule, as residents of neighborhoods in North Denver have little recourse under existing law to challenge marijuana cultivation facilities in the industrial zones that surround their communities. In illustrating both the possibilities and limits of using marijuana’s odor as a means of contesting legalization, these cases highlight the smell of marijuana as a site where a variety of laws (municipal codes, federal RICO laws) are being called upon to resolve conflicts in the shifting context of legalization. As these cases also show, the way in which these conflicts are resolved is significantly shaped by legalization’s status as a commercial enterprise. Zoning and other laws that are essential to the construction of markets and facilitation of commerce under capitalism work to enable the legal marijuana market’s continued functioning, even in the wake of complaints from other businesses and private property owners. Thus, the marijuana industry is aligning with established patterns of legally mediated conflict resolution in the context of capitalism.

The Smell of Marijuana As Commerce

The discussion in the preceding sections has focused on the smell of marijuana as it interacts with state law. But the promise of Amendment 64 was that the state would not, in fact, implement marijuana legalization. Rather, the private sector, in the form of the marijuana industry, would play the lead role. As noted above, Amendment 64 framed marijuana legalization as an economic issue. Its passage tasked the state legislature with creating a commercial market in marijuana that would be serviced by a private, for-profit industry. This industry would be regulated by the state. At the same time, it would itself do the work of regulation through the mechanism of the “free market.”Footnote ¹⁷ Indeed, the purpose of the regulatory infrastructure created by the state legislature was to facilitate the industry’s ability to service the marijuana market, thereby providing its own market-based form of regulatory oversight. This would be achieved by treating users of marijuana as customers rather than criminals.

The legal marijuana market was thus both subject to, and an implementer of, regulation, mobilizing both legal (that is, state law) and extralegal (that is, the “laws” of supply and demand) regulatory mechanisms. Understanding this market, then, involves looking beyond state law, attending to the “social life of plural forms of rule-making” (Bedford, Casey, and Flynn Reference Bedford, Casey and Flynn2018, 7), including such ostensibly extralegal forms of rule-making as consumer experience and consumption practices promoted by the industry in the retail environment. It also means looking beyond the domains where laws are violated (crime) or conflicts arise (nuisance) to the more quotidian spaces where law’s presence is so unremarkable as to be virtually illegible as law (Silbey Reference Silbey2019, 3, 13–14).

The marijuana industry has grown dramatically since the passage of Amendment 64. In the first two years alone (2014–16), the number of marijuana licenses issued by state agencies increased by 70 percent (Seaborn Reference Seaborn2017). As of September 2018, there were 3,069 active marijuana licenses (Seaborn Reference Seaborn2018). The boom of the marijuana industry has been a boon for state revenues. Since recreational sales began in 2014, the industry has generated over six billion dollars in sales, which has produced over 993 million in tax revenue.Footnote ¹⁸

Since 2014, my research team and I have been conducting ethnographic observation at dispensaries.Footnote ¹⁹ Dispensaries are the public face of the marijuana industry. They are the space where the promise of Amendment 64—the ability to legally buy and sell marijuana—is realized. Marijuana dispensaries take many forms. Some shops are self-consciously “high end” and feel like a wine bar or expensive coffee shop. Others feel more like a bakery or juice bar. Still others offer a more stereotypical “hippy” or “stoner” aesthetic, with lots of tie-dye and portraits of Bob Marley (or, in the case of one dispensary, a portrait of Mona Lisa smoking a joint). Others offer what might be thought of as a “street” aesthetic, highlighting links between marijuana and urban expressive culture such as graffiti, skateboarding, and hip-hop. Finally, there are some that emphasize the medical side, with waiting rooms that feel like a doctor’s office.

No matter the model, all dispensaries put smell at the center of the retail experience. The smell in question is the aroma produced by the flower of the cannabis plant. These flowers are what most people think of when they hear the term “marijuana.” While every dispensary sells a variety of products, from marijuana-infused chocolates and gummies to tinctures and lotions, the flower or “bud” occupies a privileged position. Each dispensary sells different kinds of flowers called strains. These are stored in glass jars that usually sit on, in, or behind a glass display case. Budtenders offer the jar to customers who are invited to stick their nose in and appreciate the aroma. Smell is so central to the retail experience that an employee at one dispensary told every customer as they entered the sales room: “Smell everything! That’s an order!”

When entering a dispensary, we (members of the research team) often presented ourselves as tourists curious about this new world of legal marijuana. Such tourism is common. Here are a research team member’s abbreviated field notes from 2017:

Market activity such as this does not call attention to itself as law. This, despite the fact that markets are “literally sets of legal rules” (Desautels-Stein Reference Desautels-Stein2012, 393). Law is most conspicuous in the marijuana market when it is serving a regulatory function. Budtenders check IDs to enforce restrictions on who can purchase marijuana and how much. The location of dispensaries as well as their appearance are similarly determined by zoning and other legal restrictions. Products available for purchase must have passed through the state’s “seed-to-sale” tracking system and comply with a host of laws related to potency, presentation, packaging, and price. A package of THC-infused gummies, for instance, must be in child-resistant packaging, contain dosage information (that complies with state standards), carry the universal symbol for THC-containing products (a red square with an exclamation point and the letters “THC”), and be in a legally compliant shape (animal shapes like bears or worms are prohibited). The price at sale must also contain the taxes applied by city, county, and state jurisdictions, which often total well over 20 percent.

But these regulations are just the visible tip of a much larger legal iceberg whose broader purpose is to facilitate, rather than restrict, commerce and market activity. In a market economy,

The smell of marijuana plays an important role in this context. While the legal infrastructure created by the state legislature makes the marijuana market possible, the economic potential of this market is not realized until the product is experienced by customers as desirable. Here, the regulations noted above play a facilitative role, contributing to a product’s commercial desirability by offering reassurances about its legality and safety. Attention to smell takes this one step further, making the product desirable at the level of sensory experience. When customers act on this desire and make a purchase, they enable the market to function as its own form of regulatory oversight of the production, distribution, and consumption of marijuana.

The person with the greatest responsibility to facilitate the consumer experience in the marijuana market is the budtender. Budtenders are to marijuana what baristas are to coffee (though, unlike baristas, they must be licensed by the state). They are expected to have extensive knowledge about the product (though this is not part of the licensing process) and be able to provide a positive customer experience. Customers rely on budtenders to explain the array of products that are available in dispensaries and help them identify which of those products they will most enjoy. Smell plays a vital role in this process. In the example above, the budtender emphasized smell as being key to determining both the quality and the effect a strain was likely to produce. Josh, a budtender at an expanding dispensary in Denver, took a similar approach. He explained that many customers came in fixated on THC content or strain type. However he encouraged them to focus on smell. A strain’s smell revealed its “terpene profile,” which was a better guide to its effects. He explained:

Budtenders like Josh encouraged customers to trust their olfactory instincts. But others said that appreciating the smell of marijuana was a skill that had to be learned. Jeff, a longtime marijuana consumer who worked in a cultivation facility described this process:

Casey, an experienced home cultivator, told almost the same story:

The skunk smell is perhaps the most notorious aroma associated with marijuana. But it is just one of many that can be present. And the variety of aromas is multiplying in the wake of legalization. Some growers use special supplements to give plants particular scents. But the standard approach is through conventional practices of plant cultivation, such as mixing different strains. Casey explained:

The sheer variety of smells and strains made the discussion of marijuana’s smell in the abstract difficult. Steve, who had been working as a budtender for just over a year when we interviewed him, responded when we asked: “How would you describe the smell of marijuana?”

Several budtenders echoed this perspective. Kelly, a budtender in Denver, said:

Taylor, another Denver budtender, described marijuana’s smell as:

To facilitate participation in the marijuana market through smell, budtenders are drawing on the language of other industries. At one dispensary, a research team member witnessed an exchange between a budtender and two customers in Colorado on business. They entered the dispensary and announced: “We’re from Texas and we’re just being tourists … we wanted to see the future.” They asked about the jars of bud on the counter, and the budtender described what it meant to be a “cannabis connoisseur” through reference to the wine and craft beer industries: “If you’re already on your wine game or craft beer game you’re almost there.” Christian Hageseth, a Colorado-based cannabis entrepreneur, likewise looked to these industries to describe his transition from an irregular consumer of “street weed” to a connoisseur of the “prime stuff” produced in Colorado’s legal industry:

Matthew Huron, chief executive officer of Good Chemistry, has tried to formalize this language. His company developed “a consumer evaluation tool similar to what exists for diamonds and wine” (Hill Reference Hill2016). This tool is the STATS guide, a free downloadable guide to cannabis evaluation.Footnote ²⁰ The name, STATS, is an acronym for sight, touch, aroma, taste, and sensation. Aromas associated with “good quality” cannabis include floral, fruit, diesel fuel, skunk, pine, earthy, cheese, sweet, and citrus. The aromas associated with “poor quality” include mold, hay, must, old socks, wet grass, and, tellingly, no smell at all. The STATS guide signals that sensory appreciation of marijuana is a skill—and a vocabulary—that must be learned. And it must be learned because the smells that signify high-quality cannabis do not map directly onto conventional understandings of “good” and “bad” odors. “Diesel fuel” or “skunk,” for instance, are thought of as bad smells in most situations, but, in this industry, they are associated with good quality cannabis. Conversely, “wet grass” and “hay,” which would be considered neutral or even pleasant smells in the proper context, are signs of poor quality cannabis. Learning to appreciate quality cannabis, then, is not just a matter of following the nose’s “natural” inclinations but also of learning to appreciate even well-known aromas in a new way. Indeed, this is one of the hallmarks of connoisseurship: to have one’s senses so highly attuned as to be able to know when what the untrained nose would perceive as “bad” is actually “good.”Footnote ²¹

Sensory descriptions of strain offerings also feature prominently on dispensary websites. Good Chemistry offers seventy different strains on its website. The initial list features the strain name and a magazine quality picture of the flower. Names include Bruce Banner, Alien Dawg, Chernobyl, Grape Ape, Hindu Kush, Orange Wi-Fi, and Lemon Skunk. Clicking on a picture takes you to the strain’s profile, which provides a description and overview using the STATS guide. The description of Lemon Skunk reads: “Lemon Skunk proudly sits as one of Good Chemistry’s most popular strains. A sweet tasting strain with lemon & skunk aromas, Lemon Skunk may have happy, pleasurable effects.”Footnote ²² Sight notes are “orange” and “medium,” referring to the bud’s color and size. Touch is described as “medium,” referring to the density of the bud and the degree of “bounce back” when squeezed. Aroma is described as “citrus” and “skunk,” two classic cannabis scents. Taste is described as “skunk.” And sensation is termed “amplify,” which the STATS guide describes as enhancing perception, creativity, and pleasure and “may help you feel euphoric and energized.”Footnote ²³ Similar information is presented on the websites of other dispensaries. The terminology is not standardized. Native Roots, for instance, only highlights three attributes: smell, taste, and feel.Footnote ²⁴ Buddy Boy provides more detailed descriptions than other websites, highlighting experience, aroma, taste, and appearance as well as strain type and genetics, all in a narrative format.Footnote ²⁵ Additional diversity can be found on websites such as LeaflyFootnote ²⁶ and Weedmaps,Footnote ²⁷ which provide information on strains (including history, genetics, and aromas) and venues for users to submit their own strain reviews.

None of this smell-centered market activity is immediately legible as law. As such, buyers and sellers may not think of themselves as legal actors, but their activity is essential for a market-based legal change like that of marijuana legalization to be successful. Indeed, legalization in Colorado fundamentally depends on repeated acts of economic exchange facilitated by consumer engagement. This is the means through which the state and private sector’s joint efforts to produce and oversee the marijuana market are realized. The state has provided the basic legal infrastructure through which the market operates. The industry has implemented a suite of business strategies designed to maximize profitability within the particular legal framework created by the state. When consumers make a purchase, they actualize this market and help the state legislature fulfill its obligation to voters under Amendment 64. They also enable the industry to perform its role as a market-based form of regulatory oversight. As they do, they are encouraged to adopt a new set of associations between the smell of marijuana and commerce. The fruit of this effort is money, which goes both to the industry (in the form of profit) and the state (in the form of tax revenue).

Making money from marijuana is more than instrumental. Given the economic focus of Amendment 64, the market’s profitability—its success qua market—is a vital metric of the law’s effectiveness—its success qua law. Smell-based practices of consumption thus serve as extralegal forms of rule-making and governance grounded in the consumer experience that facilitate the market’s commercial cum regulatory function by providing a familiar discourse of desire, pleasure, and assessment.

Such practices are also a means of legal contestation. By insisting that the smell of marijuana is something that can be enjoyed, with the “stinkier” strains often becoming the most enjoyable, budtenders and other industry actors are mobilizing a discourse of connoisseurship and expertise to undermine the legitimacy of framings that link the smell of marijuana to criminality and nuisance. This is an effort to create a new, postprohibition common sense in which marijuana’s smell is no longer always assumed to be a sign of malfeasance.