Background
A Kentucky officer stopped Devante Garrett’s car because its windows appeared unlawfully dark. When the passenger window opened, the officer smelled raw marijuana and saw two conspicuously marked marijuana bags in the center cupholder. After backup arrived, the bags were no longer visible, and Garrett resisted the officer’s order to leave the car by pulling the door shut and reaching toward the gear shift.
After arresting Garrett, the officer searched the car and found the marijuana bags, two bags of fentanyl, and a bag of cocaine. Data obtained under warrants from Garrett’s and his passenger’s phones revealed evidence of a drug conspiracy. A jury convicted Garrett of conspiring to possess and distribute fentanyl, possessing fentanyl with intent to distribute, and possessing cocaine with intent to distribute. He received a 30-year prison sentence.
Garrett appealed, challenging the denial of his motion to suppress the vehicle-search evidence, the admission of jail calls disclosed two weeks before trial, and the jury instruction permitting a finding of constructive possession.
The Court’s Holding
The Sixth Circuit affirmed. It held that the smell of marijuana supplied probable cause to search Garrett’s car and therefore also justified extending the traffic stop. State-law liberalization of marijuana did not alter that conclusion because marijuana possession remained illegal under federal law. Garrett’s conduct, his acknowledgment that marijuana was in the car, and the officer’s observation of marijuana bags that later disappeared further supported probable cause.
The court also held that admitting Garrett’s jail calls was not an abuse of discretion. Federal Rule of Criminal Procedure 16 imposes a continuing disclosure duty but specifies no disclosure deadline, and disclosure two weeks before trial was not categorically unlawful. Even assuming a violation, exclusion was unwarranted because the prosecution did not act in bad faith, Garrett did not show incurable prejudice, and he never requested the less drastic remedy of a continuance.
Finally, the court rejected Garrett’s challenge to the constructive-possession instruction. Even assuming the evidence supported only actual possession, any error was harmless as a matter of law because the instruction accurately stated both theories and the evidence supported actual possession. The court would not presume that the jury relied on an unsupported theory when a supported theory sustained the verdict.
Key Takeaways
- In the Sixth Circuit, the smell of marijuana alone can establish probable cause to search a vehicle because marijuana possession remains prohibited under federal law.
- Late disclosure under Rule 16 does not automatically require exclusion; courts generally must use the least severe adequate remedy, and exclusion is reserved for prosecutorial bad faith or incurable prejudice.
- An instruction presenting supported and unsupported factual theories of possession is harmless when the verdict rests on a legally valid theory supported by the evidence.
Why It Matters
The decision reinforces the Sixth Circuit’s view that changing state marijuana laws do not eliminate vehicle-search probable cause based on marijuana odor where the conduct remains federally prohibited. It also underscores the difficulty of obtaining exclusion for late-disclosed evidence without requesting a continuance or demonstrating bad faith or prejudice that no lesser remedy could cure.