West Virginia
West Virginia Supreme Court Considers Whether Smell Of Marijuana Can Be Basis For Police To Search Homes – Marijuana Moment
“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.
West Virginia
New law allows employers to provide benefits for independent contractors in West Virginia
CHARLESTON, W.Va. (WCHS) — Gov. Patrick Morrisey signed House Bill 4009 Wednesday, authorizing portable benefit accounts in West Virginia.
The Voluntary Portable Benefits Plan Act gives businesses the option to provide benefits for independent contractors without reclassifying those workers as employees.
The measure permits companies to offer insurance and retirement while keeping workers as an independent contractor.
Contributions may be made using funds of the employer or withholding a percentage of payment from employees.
Lawmakers estimate more than 90,000 independent contractors are in West Virginia.
West Virginia
Belle residents learn about, discuss proposed Clean-Seas plastic repurposing plant – WV MetroNews
BELLE, W.Va. — A plastic repurposing plant was the topic of a multi-hour town hall meeting in eastern Kanawha County hosted by the West Virginia Department of Environmental Protection.
Over 50 residents in the town of Belle attended a public comment hearing Tuesday evening to learn more about a proposed plastic-conversion facility planned for the area. The plant is planned at the former 84 Lumber property along Dupont Ave.
Clean-Seas West Virginia is the company seeking an air quality permit from the DEP. The Clean-Seas company website said it converts plastic through a process called pyrolysis, breaking down plastic at the covalent bond level, and repurposes it into new plastics, fuels, and industrial chemicals.
Tuesday’s hearing featured DEP and its Division of Air Quality personnel outlining their role in the process, in addition to taking questions from Belle residents. The hearing is mandated in the permit process in a 30-day public comment period. Public comments about the permit will be accepted until July 27 at 5 p.m.
DEP officials emphasized that they can’t control which businesses come to the area, but rather they determine whether Clean-Seas is compliant with DEP and air quality rules and regulations.
Concerns included a myriad of topics. Residents voiced concerns as to how emissions would affect children, how much oversight the Clean-Seas company would have from the DEP, and the overall safety of the proposed plant itself.
Joe Kessler with the Division of Air Quality was one of the officials who took questions during the meeting. One of the concerns he addressed was compliance from the company and how much monitoring would take place from air quality division. He said because their staff can be stretched thin, they can’t constantly monitor every single facility across the state. Instead, he said companies fill out compliance forms — and crews make inspections as necessary.
“Whether we like it or not, we don’t have enough staff to have somebody all the time at every facility across the state,” Kessler said. “That’s obvious. So, we have to build in monitoring for the company to do, and that they have to certify it. There’s a form they certify it with.”
“If we catch them lying, and there are ways to do that, if we feel they’re lying, we can prosecute them criminally, then we can shut the plant down, so there’s a weight behind that,” Kessler continued. “No company is going to want to be issued a violation for lying on their certified record.”
Kessler said it’s not a foolproof system, but rather the reality of having a limited staff.
Morgan King, climate and energy manager with the community organization West Virginia Citizen Action Group, addressed the DEP personnel and said she’s heard a widespread desire to block Clean-Seas from coming to Belle. She said West Virginia Citizen Action is against the plant’s arrival, citing safety concerns.
“The operation poses potential health risks to the people in the upper Kanawha River Valley, especially for those most vulnerable,” King said. “Our students, local schools, and community members who live nearby, and visit the library, the clinic, and the shopping complex.”
Community organizer and Belle resident Eric Caruthers said his entire family would be affected by the Clean-Seas plant. He said his nephew attends Riverside High School, and his sister teaches at Midland Trail Elementary; both schools within a mile from the Clean-Seas property. Caruthers said his parents also live nearby.
Caruthers asked the Division of Air Quality to deny the Clean-Seas’ request for an air permit.
“As a resident, my concern is not based on rhetoric. It is based on proximity and process reality,” Caruthers said. “Heating 50 to 200 tons of plastic daily releases volatile organic compounds, hazardous air pollutants, and fine particle matter.”
Caruthers said giving the permit to Clean-Seas would be taking an “unacceptable risk” of harming the Belle community’s health and well-being. He said air permitting relies upon honest self-monitoring and accurate emissions reporting on the part of plants.
“Clean-Seas has repeatedly mischaracterized this operation to the public as a zero emission, green process, when independent data shows that this plastic oil is primarily destined to be burned as industrial fuel,” Caruthers said. “They have already broken community trust through shifted timelines and misleading narratives. These behaviors have caused us to lose all confidence in Clean-Seas as an organization of integrity.”
The pyrolysis process remains “unproven,” Caruthers said, and the Belle community should not be a “testing ground for industrial experimentation.”
Another concerned resident, Martha “Marty” Gibson, said she has health challenges that could be impacted by Clean-Seas.
“I’m asthmatic,” Gibson said. “(When) I see somebody burning a fire, I don’t step out of my house. That makes me a prisoner in my house. and I shouldn’t have to do that. I’m not going to stand still and have a company come in here who only wants to make money, doesn’t care about the people of this state, and let them make me a prisoner in my house as well.”
Clean-Seas has brought equipment to the property already, which is within their rights before receiving a permit, Kessler said. They just can’t “hook up” anything unless that permit is secured.
Learn more about DEP permitting processes here.
West Virginia
CDC says 4 states likely linked in cyclosporiasis outbreak. See which ones
Here’s the latest on cycloporiasis in NYC: cases, symptoms
Both the state and city health department are investigating an increase of cyclosporiasis cases in the region. Here’s the latest.
The Centers for Disease Control and Prevention and states are investigating a surge of cyclosporiasis cases across the country.
Cyclosporiasis, or the disease caused by the parasite Cyclospora cayetanensis, has been confirmed in 1,645 cases as of July 13 and is under investigation in more than 5,100 additional cases, according to data from the Centers for Disease Control and Prevention.
CDC officials said a cluster of cases in four states − Michigan, Ohio, West Virginia and Kentucky − are likely linked.
Data from state health departments suggests the total number of cases could be higher that what’s been publicly reported. In Michigan, officials are tracking more than 2,600 infections as of July 13, according to the state’s Health and Human Services department.
The parasitic infection can cause explosive diarrhea, cramping, nausea and other gastrointestinal symptoms. Officials are probing whether a food or produce item is the source of a surge in cases of cyclosporiasis.
CDC officials said symptoms can appear two days to two weeks after someone is infected with the parasite. The organization also issued a health alert to doctors, other medical providers and public health officials about the outbreak.
This story is developing and will be updated.
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