“There’s no inherent logical connection or nexus between the smell of marijuana and unlawful activity anymore, and there’s a good reason for that.”

By Lori Kersey, West Virginia Watch

The Supreme Court of Appeals of West Virginia is considering a case that questions whether the odor of marijuana alone is enough for law enforcement to obtain a warrant to search a person’s home.

The Supreme Court is expected to rule on an appeal of Berkeley County Circuit Court’s decision to throw out evidence Martinsburg police officers found in a home after detecting the “strong odor” of the drug. Excluding the evidence effectively stopped the state from prosecuting a man on drug charges, an attorney told justices last week.

Aaron Lewis was arrested in 2020 on three counts of drug possession with intent to deliver and being a prohibited person in possession of a firearm, according to reporting by the Herald-Mail.

Court documents say Martinsburg police were answering another man’s call about a suicidal woman who had reportedly stabbed herself when they came across Lewis while searching the caller’s backyard. Officers were unable to locate the woman so they started going door-to-door looking for her.

The officers went to Lewis’s home where his son, Aaron Lewis Jr. answered the door. The officers detected the “strong odor of marijuana,” according to court documents. The younger Lewis refused to give officers permission to search the home.

Before they obtained a search warrant, they entered the home to conduct a “protective sweep,” during which they found a bundle of money and two clear bowls with a leafy substance on the kitchen stove, court documents say. Two officers then left to obtain the search warrant while other officers stayed on scene to secure the apartment.

An officer cited the strong odor of marijuana and the observations during the sweep as the basis to believe a dangerous controlled substance was in the house.

A magistrate OK’d the search warrant for Lewis’ home, including the seizure of “(a)ny and all controlled substances…including but not limited to heroin and methamphetamine,” as well as currency, firearms, ledgers, digital devices and drug paraphernalia, court documents say.

During the search, officers seized bags and tubs of suspected marijuana, a bag of suspected heroin, a bag of crack cocaine, one gun and 11 rounds of ammunition and cash, according to court documents.

An attorney for Lewis asked the judge in 2023 to suppress all evidence seized pursuant to the warrant, arguing that the initial warrantless sweep—the security sweep before the search—violated the Fourth Amendment, which protects against unreasonable search and seizures. Without the observations made during the sweep, only the smell of marijuana was left and that alone is insufficient for probable cause, the attorney argued.

Berkeley Circuit Judge Debra McLaughlin granted Lewis’s motion to suppress the evidence, saying that more protection should be given to homes subject to searches than to cars. The judge ruled the odor of marijuana alone did not establish probable cause to believe the home contained  “evidence of illegal drug trafficking and/or possession of heroin, methamphetamines, and/or other illegal drugs,” court documents say.

The state of West Virginia is seeking a writ of prohibition in the case, a legal order that the circuit court stop proceedings beyond its jurisdiction.

“This court’s precedent is clear,” Holly Mestemacher, an assistant attorney general for West Virginia, told justices. “The odor of marijuana provides probable cause for a search. The circuit court disregarded the law and rewrote it and suppressed the evidence seized pursuant to a search warrant.” She called the court’s decision to suppress the evidence a  “clear and substantial legal error” that exceeds its authority.

The court required “certainty, and a near impossible list of proof required before probable cause exists,” she argued.

The ruling suppressed the evidence the state needed to proceed in the case, she said.

“It’s effectively a death knell to our ability to prosecute, because the court elevated that standard required far more than has ever been required by law,” she said.

Cameron LeFevre, an attorney representing Lewis, asked the Supreme Court to uphold the Circuit Court ruling by denying the state’s request for a writ of prohibition. He said the court doesn’t need to answer whether the smell of marijuana justified the search. There were “errors throughout” the case, he said, including an improper security sweep, unlawful home search and an affidavit that lacked important details.

Federal courts have upheld that the odor of marijuana is evidence of criminal activity and justifies a search by law enforcement, but many state courts are reconsidering that based on changing legal status of the drug, according to the State Court Report, a project of the Brennan Center for Justice at NYU School of Law. The West Virginia Legislature legalized medical marijuana in 2017. All states surrounding West Virginia have either legalized medical or recreational marijuana.

LeFevre argued that Lewis’ case is not the appropriate one for the Supreme Court to make case law about whether the smell of marijuana alone is enough for a legal search.

“There’s an incomplete record. It’s a unique procedural posture. It’s on a writ of prohibition,” he said. “It would be much better for the court to fairly decide this…case on its final merits, after a trial, after an entire record has been made, and then there’s not a variety of other procedural and legal issues contained within the warrant application process and the search itself.”

However, if the court should decide to take on the issue of the odor of marijuana, it should rule that the mere smell of marijuana is no longer sufficient for probable cause, he said.

“There’s been a significant development in the law of the land regarding marijuana,” he said. “[Medical marijuana has] become legalized in West Virginia. It’s become partially legalized in other states surrounding West Virginia. There’s no inherent logical connection or nexus between the smell of marijuana and unlawful activity anymore, and there’s a good reason for that.”

The court is expected to issue a ruling in the case before the current term of court ends on June 11.

This story was first published by West Virginia Watch.