United States v. Devante Garrett

THAPAR, Circuit Judge. After a four-day trial, a jury convicted Devante Garrett of federal drug crimes involving fentanyl and cocaine. Garrett appeals his conviction. He claims the district court erred by denying his motions to exclude some of the government’s evidence and to strike a jury instruction. We disagree and affirm.

I.

Garrett was driving with James Waller when his car caught Officer Douglas Ullrich’s eye. The car’s windows were tinted so darkly that Ullrich couldn’t see into the car. Concerned that such a heavy tint was both a safety hazard and a violation of Kentucky law, Ullrich pulled Garrett over. Ullrich approached the passenger side and asked for that window to be rolled down. The moment the window opened, the odor of raw marijuana hit Ullrich. He also saw two conspicuously marked marijuana bags sitting in the center cupholder. So Ullrich returned to his cruiser to request backup.

Once backup arrived, Ullrich approached Garrett’s car again—on the driver’s side this time—and asked Garrett to roll down his window. When Garrett did so, Ullrich couldn’t see the marijuana bags in the cupholder anymore. He told Garrett to step out of the car, but Garrett argued instead of complying. So Ullrich tried pulling the door open. In response, Garrett pulled the door shut, started rolling up his window, and reached for the gear shift. Worried that Garrett would endanger the officers, Ullrich unholstered his firearm and ordered Garrett out of the vehicle.

This time, Garrett obeyed. Ullrich arrested and searched him. During the search, Ullrich told Garrett he’d seen the marijuana before it was moved. In response, Garrett offered to turn over the marijuana. At that point, Ullrich secured Garrett in the back of his cruiser and searched Garrett’s car. While he conducted the search, Waller stood outside the car with the backup officer.

The search was productive. First, Ullrich noticed that the door panel in the driver’s door was bloody and broken, with plastic sticking out. He pried the panel off and found two bags of fentanyl and a bag of cocaine. Ullrich also found the two missing marijuana bags inside the armrest console. So he seized Garrett’s and Waller’s drugs and phones as evidence. Ullrich then obtained warrants to search the data on the phones, which revealed Garrett’s involvement in a Lexington drug conspiracy spanning months. The phone data showed that Garrett had three coconspirators: Waller, Christopher Scull, and Kasey Allen. All three accepted plea agreements.

Garrett went to trial, and his coconspirators testified against him. In addition, the prosecution played phone calls Garrett made to his coconspirators from jail. Ultimately, the jury convicted him for conspiring to possess and distribute fentanyl, possessing fentanyl with the intent to distribute it, and possessing cocaine with the intent to distribute it. The district court sentenced him to 30 years in prison. Garrett now appeals his convictions.

II.

Garrett makes three arguments for a retrial. First, he says the district court should have barred the jury from considering evidence stemming from Ullrich’s search of his car. Second, Garrett contends that the district court should have excluded phone calls he made from jail because the prosecution disclosed them too late. And third, he argues that the district court shouldn’t have instructed the jury that it could find he constructively possessed controlled substances. All three objections fail.

A.

Start with the evidence seized from Garrett’s car. Garrett says the officers didn’t have enough cause to prolong the traffic stop and search his car. The district court denied his motion to suppress the evidence, and we review its determination of reasonable suspicion and probable cause de novo. Ornelas v. United States, 517 U.S. 690, 699 (1996). The district court got it right: Ullrich had more than enough cause to prolong the traffic stop and conduct a warrantless search.

An officer may extend a car stop on reasonable suspicion of criminal wrongdoing. United States v. Whitley, 34 F.4th 522, 532 (6th Cir. 2022). And he may search the car if he has probable cause that it holds incriminating evidence. Id. at 535–36. Before Ullrich prolonged the stop or searched the car, he smelled marijuana inside. That settles this issue. “[T]he smell of marijuana alone provides probable cause to search a car.” United States v. Santiago, 139 F.4th 570, 574 (6th Cir. 2025). So Ullrich had probable cause (and thus reasonable suspicion) to lengthen the traffic stop by searching Garrett’s car.

Garrett responds that the smell of marijuana can’t support probable cause now that many states have liberalized their marijuana laws. But marijuana possession remains illegal under federal law. 21 U.S.C. § 844(a). And state officers can search a car if they have probable cause that it contains evidence of a federal crime. United States v. Whitlow, 134 F.4th 914, 919–21 (6th Cir. 2025). So state-level liberalization doesn’t change anything.¹1. In Whitlow, we noted that Ohio law was silent on whether state officers could investigate federal crimes. 134 F.4th at 921. But even if Kentucky prohibited its officers from enforcing federal marijuana law, that would “likely [be] irrelevant to whether a Fourth Amendment violation has occurred.” Id. And either way, Kentucky law requires state officers to cooperate with federal drug enforcement. Commonwealth v. Johnson, 423 S.W.3d 718, 721 (Ky. 2014).

Plus, other evidence bolstered Ullrich’s probable cause. Before searching the car, Ullrich opened Garrett’s car door and ordered him out. Yet Garrett defied that order by pulling the door shut and reaching for the gear shift. And upon his arrest, Garrett confirmed there was marijuana in the car. Finally, Ullrich also saw bags with marijuana labels in a cupholder—bags that disappeared while Ullrich was waiting for backup. Garrett claims Ullrich couldn’t have seen marijuana labels on the bags, but the district court’s contrary finding controls because it’s not clearly wrong. United States v. Waide, 60 F.4th 327, 335 (6th Cir. 2023). Besides, that finding is just “extra icing on a cake already frosted.” Van Buren v. United States, 593 U.S. 374, 394 (2021) (quotation omitted). Ullrich had probable cause in spades. So the district court rightly denied Garrett’s suppression motion.

B.

Garrett also contends that the district court wrongly allowed the prosecution to play for the jury phone calls he made from jail. Why? Because even though the government had access to the calls well in advance, it didn’t disclose the evidence to Garrett until two weeks before his trial started. So Garrett says the government shared that evidence too late to use it at trial. The district court denied his request to exclude the evidence, and we review for abuse of discretion. United States v. Perry, 438 F.3d 642, 647 (6th Cir. 2006). We find none.

Garrett hangs his hat on Rule 16. But that’s an unstable peg for his timing argument. While Rule 16 requires the government to continually disclose evidence it discovers, the rule doesn’t specify a deadline. Fed. R. Crim. P. 16(c). Our cases provide some guidance. For example, we’ve found that a disclosure “two weeks before trial” fulfilled the government’s Rule 16 “obligations.” United States v. Boyd, 620 F.2d 129, 132 (6th Cir. 1980). So disclosure two weeks before trial isn’t categorically unlawful.

And even if the government’s delay violated Rule 16, that doesn’t mean the district court had to exclude the late-disclosed phone calls. Just the opposite: Excluding relevant evidence is an “undesirable remedy” for a discovery violation. United States v. Maples, 60 F.3d 244, 247 (6th Cir. 1995). That’s because courts must cure Rule 16 violations through the least severe remedy available, such as a continuance. Id. Exclusion is thus “reserved for cases of incurable prejudice or bad faith on the part of the prosecution.” United States v. Daniels, 163 F.4th 992, 1005 (6th Cir. 2026) (quotation omitted). This case falls outside those narrow limits.

The delay in disclosing the phone calls didn’t result from bad faith, and it didn’t incurably prejudice Garrett. The government explains—and Garrett doesn’t contest—that it turned over the phone calls as soon as it listened to the calls and realized they contained relevant evidence. That’s hardly bad faith.

Garrett thus relies on prejudice. But the two-week timeline for reviewing the phone calls didn’t incurably prejudice him. After all, we’ve upheld decisions to admit evidence disclosed as late as mid-trial. United States v. Clark, 385 F.3d 609, 619–21 (6th Cir. 2004). So this case is a weak candidate for the strong medicine of exclusion. Besides, Garrett never requested a continuance—the more natural and less drastic remedy for late disclosures. And when a defendant fails to request a continuance, he’s in no “position to fault the court for denying his motion to exclude.” United States v. Bartle, 835 F.2d 646, 650 (6th Cir. 1987). Thus, the district court didn’t abuse its discretion by denying Garrett’s exclusion motion.

C.

Finally, Garrett argues that the district court erred by including a jury instruction on constructive possession. We review a district court’s choice of jury instructions for abuse of discretion. United States v. Kechego, 91 F.4th 845, 853 (6th Cir. 2024). Garrett’s challenge falls well short.

Two of Garrett’s convictions were for possession of controlled substances with intent to distribute. To prove those charges, the government had to show that Garrett (1) knowingly (2) possessed the drugs (3) with intent to distribute them. United States v. Russell, 595 F.3d 633, 645 (6th Cir. 2010). The contested jury instruction concerns element (2)—possession. Two types of possession satisfy this element: actual and constructive. Id. A defendant actually possesses drugs when they’re in his immediate control—say, when he’s holding them. United States v. Fairley, 137 F.4th 503, 512 (6th Cir. 2025). And he constructively possesses drugs when they aren’t immediately accessible, but he still knowingly controls them (for example, through other people). Id. The district court instructed the jury on both types of possession.

Garrett doesn’t dispute the legal accuracy of the district court’s instruction. So what’s the problem? In his view, the government’s evidence only supported actual possession. Thus, Garrett says the court’s instructions shouldn’t have mentioned constructive possession.

But that argument goes nowhere. Even assuming the district court erred by including a constructive possession instruction, that wouldn’t help Garrett. Instructing a jury on two theories of possession when the evidence only supports one is harmless as a matter of law. United States v. Taylor, 800 F.3d 701, 710 (6th Cir. 2015). That’s because our legal system trusts juries. See, e.g., U.S. Const. amend. VI. So we won’t disturb a verdict that finds support in a well- grounded theory by assuming the jury fell for a baseless theory instead. See Griffin v. United States, 502 U.S. 46, 59–60 (1991). All agree there was evidence of actual possession, so Garrett’s conviction stands even assuming the evidence didn’t allow the jury to find constructive possession.

* * *

We affirm.