The West Virginia Supreme Court of Appeals is considering whether the smell of marijuana alone gives police sufficient probable cause to obtain a home search warrant.
The case involves Aaron Lewis, 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 the Herald-Mail. Martinsburg police responding to a call about a suicidal woman were going door-to-door when they reached Lewis’s home; his son Aaron Lewis Jr. answered, and officers detected a “strong odor of marijuana.” After the son refused consent, officers conducted a warrantless “protective sweep,” finding a bundle of money and two clear bowls with a leafy substance on the kitchen stove. A magistrate then approved a warrant for controlled substances including heroin and methamphetamine, currency, firearms, ledgers, digital devices, and paraphernalia. The search yielded suspected marijuana, heroin, and crack cocaine, a gun, 11 rounds of ammunition, and cash.
In 2023, Lewis’s attorney sought to suppress all evidence, arguing the warrantless sweep violated the Fourth Amendment and that the odor alone could not establish probable cause. Berkeley County Circuit Judge Debra McLaughlin agreed, ruling the smell did not establish probable cause to believe the home contained evidence of drug trafficking or possession of heroin, methamphetamines, or other illegal drugs.
The state is seeking a writ of prohibition against the circuit court. Assistant Attorney General Holly Mestemacher told justices: “This court’s precedent is clear. 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,” calling it a “clear and substantial legal error.”
Lewis’s attorney, Cameron LeFevre, urged the court to deny the writ, citing an incomplete record and multiple procedural flaws. If the court addresses the odor question, he argued the smell no longer signals criminal activity: “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.”
Federal courts have generally held marijuana odor sufficient to justify a search, but many state courts are reconsidering, according to the State Court Report, a Brennan Center for Justice at NYU School of Law project. West Virginia legalized medical marijuana in 2017; all neighboring states have legalized medical or recreational marijuana.
The court is expected to rule before June 11, when its current term ends.