West Virginia Supreme Court to Determine Whether Cannabis Odor Alone Can Justify Home Searches

The Supreme Court of West Virginia is considering a case that could determine whether the odor of cannabis alone is enough to justify a search of a person’s home, West Virginia Watch reports. The court is expected to rule on the appeal of Berkeley County Circuit Court’s ruling that threw out evidence police found in the search of a home after determining the “strong odor” of cannabis. Excluding the evidence prohibited the state of prosecuting a man on drug charges. 

In 2020, Aaron Lewis was arrested by Martinsburg police officers after coming to his home during a search for a suicidal woman. Lewis had no link to the woman, and his address was not implicated in the emergency call. During the door-to-door search for the woman, officers stopped by Lewis’s home and when his son answered the door, the officers detected the “strong odor of marijuana,” according to court documents outlined by West Virginia Watch. The son refused to allow police to search the home, but police entered the home anyway claiming they were performing a “protective sweep.” During the sweep, police found cash and two clear bowls with a leafy substance on the kitchen stove. 

Two officers stayed at the residence to secure the scene while two others went and obtained a warrant to conduct a search on the Lewis home. A magistrate obtained the warrant, which included the seizure of drugs, according to court documents. During the now-warranted search, police found suspected cannabis, heroin, crack cocaine, a gun and 11 round of ammunition, and cash. 

In 2023, an attorney for Lewis pushed to suppress all evidence seized in the case, contending that the initial “protective sweep” violated the Fourth Amendment and that without that sweep, officers would only have been able to rely on the odor of cannabis in their warrant request to the judge. Berkeley Court Judge Debra McLaughlin granted that motion, ruling the odor of cannabis was not enough to believe the home contained evidence of illegal drug trafficking.  

In a writ of prohibition in the case, Holly Mestemacher, an assistant attorney general for West Virginia, told the Supreme Court justices that “court’s precedent is clear” that cannabis odor “provides probable cause for a search” and that McLaughlin’s ruling is a “clear and substantial legal error.” 

A decision in the case is expected before the end of the court’s term on June 11.