Marijuana Odor Remains Probable Cause Despite State Reform: Discovery and Jury-Instruction Limits on Reversal

1. Introduction

The Sixth Circuit affirmed Devante Garrett’s federal drug convictions after rejecting challenges to a vehicle search, the disclosure of recorded jail calls, and an instruction permitting the jury to consider constructive possession. The decision brings together three established principles: marijuana odor can establish probable cause notwithstanding state marijuana reforms; exclusion is an exceptional remedy for discovery violations; and a factually unsupported alternative theory does not necessarily undermine a verdict supported by a valid theory.

The prosecution arose from a traffic stop in Kentucky. Officer Douglas Ullrich stopped Garrett’s vehicle because its heavily tinted windows appeared to violate state law. James Waller was a passenger. When the passenger window opened, Ullrich smelled raw marijuana and saw two conspicuously marked marijuana bags in the center cupholder. After requesting backup, he returned to find that the bags were no longer visible.

Garrett resisted an order to leave the vehicle, pulled the driver’s door shut, began raising the window, and reached for the gear shift. Ullrich drew his firearm, and Garrett then complied. Following Garrett’s arrest, Garrett offered to surrender the marijuana. Ullrich searched the vehicle and discovered fentanyl and cocaine behind a bloody, broken driver’s-door panel, along with the marijuana bags inside the armrest console.

Officers seized phones and subsequently obtained warrants to search their contents. The resulting evidence revealed a months-long Lexington drug conspiracy involving Garrett, Waller, Christopher Scull, and Kasey Allen. The three alleged coconspirators accepted plea agreements and testified against Garrett. The prosecution also introduced calls Garrett made from jail.

After a four-day trial, the jury convicted Garrett of conspiring to possess and distribute fentanyl, possessing fentanyl with intent to distribute, and possessing cocaine with intent to distribute. The district court imposed a thirty-year prison sentence. His appeal challenged the convictions, rather than presenting a separate sentencing issue.

2. Summary of the Opinion

The court rejected all three grounds for a new trial:

1. Vehicle search: The smell of marijuana supplied probable cause to search the vehicle and sufficient justification to extend the traffic stop. State marijuana reforms did not eliminate probable cause to investigate conduct that remained prohibited under federal law.
2. Recorded jail calls: Disclosure two weeks before trial did not automatically violate Federal Rule of Criminal Procedure 16. Even assuming a violation, exclusion was unwarranted because Garrett demonstrated neither prosecutorial bad faith nor incurable prejudice, and he had not requested a continuance.
3. Constructive-possession instruction: Even assuming insufficient evidence supported constructive possession, instructing on that legally valid theory was harmless because the evidence supported actual possession.

The judgment was affirmed. Importantly, the court did not need to decide either that the disclosure violated Rule 16 or that the constructive-possession instruction lacked evidentiary support.

3. Analysis: Vehicle Searches and Marijuana Odor

A. Legal Reasoning

The Fourth Amendment issue involved two related questions: whether Ullrich could prolong the traffic stop and whether he could search the vehicle without a warrant. Extending a stop requires reasonable suspicion of additional criminal activity; a vehicle search under the automobile exception requires probable cause to believe the vehicle contains incriminating evidence.

The court concluded that both requirements were satisfied before the challenged extension and search. Ullrich smelled raw marijuana when the passenger window opened. Under controlling circuit authority, that observation alone supplied probable cause, a higher level of justification than reasonable suspicion.

Garrett argued that liberalized state marijuana laws weakened the inference of criminal activity. The court answered by distinguishing state permission from federal prohibition. Marijuana possession remained prohibited under 21 U.S.C. § 844(a), and state officers could investigate evidence of a federal crime. State-level reform therefore did not defeat the federal basis for probable cause recognized by the cited cases.

The additional circumstances reinforced, but were not necessary to, the result: Ullrich observed marijuana-marked bags, the bags disappeared from view, Garrett resisted leaving the vehicle and reached toward the gear shift, and Garrett later acknowledged the marijuana’s presence. The sequence matters because the odor supplied an independent justification before those later events.

B. Precedents Cited and Their Influence

Ornelas v. United States, 517 U.S. 690, 699 (1996)

This decision supplied the standard of appellate review: determinations of reasonable suspicion and probable cause are reviewed de novo. The Sixth Circuit therefore independently assessed the constitutional significance of the established facts rather than simply deferring to the district court’s ultimate legal conclusion.

United States v. Whitley, 34 F.4th 522, 532, 535–36 (6th Cir. 2022)

This case provided the governing framework for extending a traffic stop and searching a vehicle. Reasonable suspicion permits an extension to investigate criminal wrongdoing, while probable cause permits a vehicle search for incriminating evidence. It allowed the court to analyze Garrett’s stop-extension and search arguments together without conflating their distinct thresholds.

United States v. Santiago, 139 F.4th 570, 574 (6th Cir. 2025)

This was the decisive substantive authority. Its rule that “the smell of marijuana alone provides probable cause to search a car” made the odor sufficient without relying on Garrett’s later behavior or the disputed visibility of the marijuana labels.

United States v. Whitlow, 134 F.4th 914, 919–21 (6th Cir. 2025)

This decision answered Garrett’s state-law reform argument: state officers may search a vehicle when probable cause indicates evidence of a federal offense. The court also invoked its observation that a state restriction on enforcing federal law would “likely” be irrelevant to the Fourth Amendment question. That qualified observation should not be overstated as a definitive resolution of every possible state-law restriction.

Commonwealth v. Johnson, 423 S.W.3d 718, 721 (Ky. 2014)

Cited in a footnote, this Kentucky decision established that Kentucky law requires state officers to cooperate with federal drug enforcement. It provided an additional answer to any suggestion that Kentucky law barred the federal-law investigative justification. The court therefore did not need to resolve the hypothetical consequences of a state prohibition on such cooperation.

United States v. Waide, 60 F.4th 327, 335 (6th Cir. 2023)

This case supplied the deferential standard for reviewing historical factual findings. Garrett disputed whether Ullrich could actually see marijuana labels on the bags, but the district court’s finding controlled because it was not clearly erroneous. The opinion thus distinguishes independent review of constitutional conclusions from deferential review of underlying facts.

Van Buren v. United States, 593 U.S. 374, 394 (2021)

The court borrowed the expression “extra icing on a cake already frosted” to describe the additional evidence. This was a rhetorical citation, not reliance on that decision’s substantive doctrine to define vehicle-search authority.

C. Limits of the Search Holding

The opinion addresses the justification for prolonging the stop and searching the vehicle. It does not separately establish new rules concerning the initial tint stop, the arrest, or the permissible dismantling of vehicle components. Nor does its automobile-search reasoning authorize warrantless examination of phone contents: officers obtained separate warrants for the digital searches.

4. Analysis: Late Disclosure and the Exceptional Remedy of Exclusion

A. Legal Reasoning

The government disclosed Garrett’s recorded jail calls two weeks before trial, despite having access to them earlier. Garrett sought exclusion under Rule 16. The court rejected the suggestion that this timing automatically required keeping the calls from the jury.

Rule 16(c) imposes a continuing disclosure obligation but does not itself prescribe the fixed pretrial deadline Garrett’s argument assumed. The court nevertheless did not conclusively determine that the government had complied with every aspect of its discovery obligations. Instead, it supplied an alternative ground: even a violation would not require exclusion on these facts.

The governing remedial principle is proportionality. Courts should address discovery violations through the least severe effective remedy. Excluding relevant evidence is disfavored where additional preparation time could adequately protect the defense.

Two considerations were central. First, the government explained that it disclosed the calls as soon as it listened to them and recognized their relevance; Garrett did not contest that explanation. The court found no bad faith. Second, Garrett failed to establish incurable prejudice from the two-week preparation period. His failure to request a continuance substantially weakened his contention that exclusion was necessary.

B. Precedents Cited and Their Influence

United States v. Perry, 438 F.3d 642, 647 (6th Cir. 2006)

This case established abuse-of-discretion review of the district court’s evidentiary ruling. The appellate question was whether the district court exceeded its permissible discretion, not whether another judge might have managed disclosure differently.

United States v. Boyd, 620 F.2d 129, 132 (6th Cir. 1980)

Because this decision had treated disclosure two weeks before trial as satisfying Rule 16 obligations, it defeated Garrett’s categorical timing argument. It did not create a universal two-week safe harbor; the opinion used it to show that such timing is not inherently unlawful.

United States v. Maples, 60 F.3d 244, 247 (6th Cir. 1995)

This decision characterized exclusion as an “undesirable remedy” and required use of the least severe available corrective measure. It supplied the central reason to consider a continuance before excluding relevant prosecution evidence.

United States v. Daniels, 163 F.4th 992, 1005 (6th Cir. 2026)

This case articulated the demanding threshold for exclusion: incurable prejudice or prosecutorial bad faith. Neither was established here, so Garrett could not obtain exclusion merely by asserting delayed disclosure.

United States v. Clark, 385 F.3d 609, 619–21 (6th Cir. 2004)

The court cited this decision’s approval of admitting evidence disclosed during trial. Its relevance was comparative: timing alone does not establish incurable prejudice, and disclosure two weeks before trial was not automatically grounds for the strongest sanction.

United States v. Bartle, 835 F.2d 646, 650 (6th Cir. 1987)

This decision directly connected Garrett’s failure to request a continuance with the rejection of his exclusion claim. A defendant who declines to seek the ordinary, less drastic remedy is poorly positioned to argue that the court was required to exclude the evidence.

C. Practical Significance

The decision encourages defendants to identify concrete preparation difficulties and explain why additional time would not solve them. It does not excuse prosecutors from timely, continuing disclosure or authorize strategic delay. Rather, it separates the existence of a discovery violation from the appropriate remedy for that violation.

5. Analysis: Alternative Possession Theories and Harmless Error

A. Legal Reasoning

Garrett’s final challenge concerned the possession element of his substantive drug offenses. Actual possession and constructive possession are alternative ways to satisfy that element. The district court instructed the jury on both.

Garrett did not argue that the instruction misstated the law. He argued that the evidence supported only actual possession, making the constructive-possession instruction unnecessary and unsupported.

The Sixth Circuit assumed, without deciding, that giving the alternative instruction was error. It nevertheless held that the assumed error did not justify reversal because evidence supported actual possession. Under the cited authorities, a jury’s consideration of a legally correct but factually unsupported alternative does not invalidate a verdict supported by another properly grounded theory.

The distinction is narrow but important: an alternative theory lacking factual support is not the same as an alternative theory that is legally invalid. The opinion concerns the former. It does not approve instructions that incorrectly define possession or otherwise authorize conviction for conduct the law does not prohibit.

B. Precedents Cited and Their Influence

United States v. Kechego, 91 F.4th 845, 853 (6th Cir. 2024)

This case supplied abuse-of-discretion review for the district court’s choice of jury instructions. The court ultimately resolved the challenge through harmlessness rather than deciding whether including constructive possession was an abuse of that discretion.

United States v. Russell, 595 F.3d 633, 645 (6th Cir. 2010)

This decision identified the elements of possession with intent to distribute: knowing possession of the drugs and intent to distribute them. It also established that either actual or constructive possession can satisfy the possession element.

United States v. Fairley, 137 F.4th 503, 512 (6th Cir. 2025)

This case supplied the distinction between actual possession—immediate control, such as holding an item—and constructive possession, where a person knowingly controls drugs without immediate physical access, potentially through another person. These definitions explained why both theories were legally permissible even though Garrett disputed their evidentiary support.

United States v. Taylor, 800 F.3d 701, 710 (6th Cir. 2015)

This was the immediate basis for affirmance on the instruction issue. It treated instructing on two possession theories, when the evidence supports only one, as harmless as a matter of law. Because actual possession had evidentiary support, deciding whether constructive possession also did was unnecessary.

Griffin v. United States, 502 U.S. 46, 59–60 (1991)

This Supreme Court decision supplied the underlying rationale: courts do not presume that jurors selected a factually baseless theory when a supported theory sustains the verdict. The opinion’s accompanying reference to the Sixth Amendment emphasized confidence in the jury’s factfinding role.

The holding should not be mistaken for a ruling that proof of possession alone establishes the entire offense. Knowledge and intent to distribute remained necessary elements; the appeal’s instructional dispute concerned only the alternative methods of proving possession.

6. Broader Impact and Limits

Marijuana Reform and Federal Search Authority

The opinion reinforces the continuing practical consequences of federal marijuana prohibition. Within the framework of the cited Sixth Circuit cases, state legalization or liberalization does not by itself defeat marijuana-based probable cause. Its application remains tied to the law and facts addressed; the court did not decide every possible dispute about odor identification or changing drug regulation.

Discovery Litigation

The decision underscores that the strongest discovery sanction requires more than dissatisfaction with disclosure timing. Future defendants seeking exclusion will need to substantiate bad faith or explain why prejudice cannot be cured through less drastic measures. Requesting a continuance—or explaining why one would be inadequate—can be critical.

Instructional Challenges

The opinion directs attention to the nature of the alleged instructional defect. A challenge based solely on insufficient evidence for one legally valid theory may fail where another theory is supported. Whether an instruction misstates governing law presents a materially different issue.

Precedential Weight

Because the opinion is not recommended for publication and relies heavily on existing decisions, it is best understood as a useful synthesis of established rules. Its reasoning may guide similar disputes, but its designation and narrow grounds counsel against presenting it as a sweeping new doctrinal departure.

7. Complex Concepts Simplified

Reasonable suspicion

A particularized, objective basis for suspecting criminal activity. It can justify extending a traffic stop to investigate further.

Probable cause

A practical basis for believing there is a fair probability that evidence of crime will be found. It requires more than reasonable suspicion but not proof beyond a reasonable doubt.

Automobile exception

A Fourth Amendment doctrine permitting a vehicle search without a warrant when probable cause supports the search.

De novo review and clear-error review

Under de novo review, appellate judges independently decide a legal question. Under clear-error review, they generally accept the trial court’s factual findings unless clearly mistaken.

Abuse of discretion

A review standard that gives trial judges room to make reasonable procedural and evidentiary choices, while permitting reversal for decisions outside lawful bounds.

Continuance

A postponement that can give a party additional time to prepare, including time to examine newly disclosed evidence.

Constructive possession

Knowing control over an item without physically holding it or having it immediately accessible. Mere proximity is not the concept the court described.

Harmless error

An error that does not require reversal. Here, the court treated the assumed instructional defect as harmless because a legally valid, evidentially supported possession theory sustained the verdict.

8. Conclusion

United States v. Devante Garrett affirms three limits on obtaining reversal: state marijuana reforms do not negate the federal-law basis for marijuana-odor probable cause; delayed discovery does not automatically justify exclusion; and an unsupported factual alternative does not necessarily defeat a verdict grounded in a supported, legally valid theory.

The opinion’s broader significance is methodological. It distinguishes legal conclusions from factual findings, discovery violations from discovery remedies, and instructional error from reversible error. Those distinctions—not an expansive new doctrine—explain why Garrett’s convictions were affirmed.