Background
In July 2020, a Martinsburg City Police officer responding to a welfare call detected the smell of marijuana when the door to Apartment 4 was opened by Aaron Curtis Lewis Jr., an eighteen-year-old. After Lewis Jr. denied consent to search, officers performed what the affidavit called a “security sweep” of the residence, during which the officer observed what appeared to be a large bundle of currency and two bowls of green leafy substance. The officer then used both the odor of marijuana and the items observed during that sweep to support a search warrant affidavit. The warrant’s face page alleged only that the occupants unlawfully possessed “CDS” (controlled substances), but its attachment listed items to be seized that included heroin, methamphetamine, firearms, currency, drug trafficking records, and “any and all evidence of narcotics trafficking.”
Law enforcement executed the warrant and recovered marijuana, suspected heroin, suspected crack cocaine, a pistol, and $66 in cash. A Berkeley County grand jury subsequently indicted Aaron Curtis Lewis on two counts of possession with intent to distribute and one count of felony firearm possession by a prohibited person. In October 2023, Lewis moved to suppress all evidence, arguing that the initial warrantless entry was unconstitutional and that the warrant itself was both overbroad and unsupported by adequate probable cause.
The Circuit Court of Berkeley County granted the suppression motion. The court found that the State had conceded the warrantless “security sweep” was improper, meaning only the odor of marijuana remained as admissible probable cause. Even so, the court found no articulable nexus between that odor and the drug-trafficking items listed for seizure, and declined to apply the good faith exception under United States v. Leon because the affidavit was “bare bones.” The State then petitioned the Supreme Court of Appeals for a writ of prohibition to block enforcement of the suppression order.
The Court’s Holding
The Supreme Court of Appeals, in an opinion by Chief Justice Bunn, denied the writ of prohibition. The court found that the circuit court had not exceeded its legitimate authority and had not committed clear error — the standard required for the writ to issue. The central defect was that the warrant was unconstitutionally overbroad and lacked the particularity required by both the Fourth Amendment and article III, section 6 of the West Virginia Constitution. The crime alleged on the face of the warrant was simple possession of CDS, yet the attachment listed items associated with drug trafficking — heroin, methamphetamine, firearms, ledgers, and evidence of narcotics sales — for which there was no supporting probable cause in the affidavit.
Because the State had conceded the initial entry was unconstitutional, the court evaluated the warrant’s affidavit in redacted form, stripping out observations made during the illegal sweep. What remained was only the odor of marijuana. The court agreed with the circuit court that this provided no nexus to drug trafficking, and therefore the list of items to be seized was “broader than can be justified by the probable cause upon which the warrant was based,” citing the Second Circuit’s analysis in United States v. Galpin, 720 F.3d 436 (2d Cir. 2013). The State’s characterization of the trafficking items as a “cut and paste error” did not cure the constitutional defect.
Having resolved the case on overbreadth and particularity grounds, the court expressly declined to reach the State’s broader argument about whether the odor of marijuana alone can constitute probable cause to search a home. The court also noted — without deciding — that the circuit court appeared to have applied a severability analysis to the warrant, a doctrine West Virginia has not formally adopted, but found it unnecessary to address that issue given the warrant’s multiple fatal deficiencies.
Key Takeaways
- A search warrant that alleges simple drug possession as the target offense but lists drug-trafficking items — heroin, methamphetamine, firearms, sales records — as things to be seized is unconstitutionally overbroad; the items to be seized must be tied to the specific crime for which probable cause was established.
- When a warrant affidavit contains information obtained through a prior unconstitutional entry, courts must evaluate whether the redacted, untainted affidavit standing alone supports probable cause; if the only remaining basis is the odor of marijuana, that may be insufficient to authorize a search for trafficking evidence.
- The State’s writ of prohibition to block a suppression order requires a showing that the circuit court committed clear legal error — a demanding standard — and characterizing a warrant’s defects as a clerical “cut and paste error” does not satisfy that burden.
- The Supreme Court of Appeals explicitly left open the question of whether marijuana odor alone provides probable cause to search a home, signaling the issue remains unsettled in West Virginia.
Why It Matters
This decision is a pointed reminder that obtaining a warrant is not, by itself, a constitutional safe harbor. Prosecutors and law enforcement officers must ensure that every element of the warrant — the stated crime, the supporting affidavit, and the list of items to be seized — align and are supported by articulable facts. A boilerplate trafficking attachment grafted onto an affidavit that supports only simple possession will not survive Fourth Amendment scrutiny, and the good faith exception will not rescue a warrant that is facially overbroad or rests on a “bare bones” affidavit.
For defense practitioners, the case illustrates a viable suppression strategy when a warrantless predicate search taints an affidavit: by conceding the illegal entry and presenting a redacted affidavit, the State here effectively stripped away the observations that might otherwise have bridged the gap between marijuana odor and the broader trafficking items sought. The court’s refusal to decide the marijuana-odor question also preserves room for future challenges, particularly as state law continues to evolve regarding the distinction between legal hemp and illegal marijuana.