United States v. Whitlow, 2025 WL 1122357 (6th Cir. 2025)
In Solon, Ohio, Andre Whitlow was out for a late-night drive in his mother’s car. At 0230 hrs, Officer Thomas Kazimer spotted Whitlow and checked the car registration. Learning the registration was expired, Officer Kazimer pulled Whitlow over. While the officer was waiting for Whitlow to produce his license, registration and proof of insurance, he asked Whitlow whether there was anything illegal in the vehicle. Whitlow responded, “No.” However, Kazimer had already seen flakes of marijuana scattered across the gear shifter in the center console of the car.
Kazimer asked Whitlow more directly whether he had any marijuana and Whitlow shook his head. The officer decided to search the car and directed Whitlow to get out. Officer Kazimer frisked Whitlow and found a bag of cannabis. Whitlow told the officer he had a “weed card” and also admitted there was more marijuana in the car.
Backup arrived and the two officers began searching the car. As one of them opened the glove box, the plastic compartment fell away to reveal two handguns hidden behind it. The officers arrested Whitlow, a convicted felon, and he was charged with two counts of possession of a firearm by a restricted person.
Whitlow asked the trial judge to suppress the firearms. The judge denied the suppression motion, and a jury found Whitlow guilty of the gun charges. Whitlow appealed, claiming the officers lacked probable cause to search the car, challenging the denial of his suppression motion, and arguing there was insufficient evidence for the jury to convict him.
The appellate court held the officers had probable cause to search the car based on the marijuana Officer Kazimer saw at the inception of the traffic stop. The court broke down the probable cause question into two parts. First, did the local (state-authorized) police officer have probable cause to believe Whitlow had violated federal law? And second, did a state officer have the authority to search Whitlow’s car based on the violation of a federal law?
The first question had an easy answer. Prior to the search, Officer Kazimer had seen marijuana fragments in plain view on the gear shift area. Kazimer testified that, based on his approximately eight years of police experience, the substance was “100 percent marijuana.” That was sufficient for the officer to believe Whitlow possessed marijuana in violation of the Controlled Substances Act, 21 U.S.C. § 844(a). Moreover, the officer also had probable cause of a violation of Ohio state marijuana laws. Under Ohio law, at the time of the stop, marijuana was illegal “save for stringently regulated medical usage.”
Though Whitlow told Officer Kazimer he had a medical marijuana license, several factors supported Kazimer’s conclusion the marijuana was illegally possessed. First, Ohio state courts have ruled that evidence of possibly legal medical marijuana can still provide probable cause of a state-law violation. Second, Ohio law requires that medical marijuana be stored in the “original dispensing package with an unaltered dispensary label” or in the “container provided by a dispensary.” Ohio law also requires medical marijuana to be stored in a “secure location.” Finally, when Officer Kazimer asked Whitlow whether he had cannabis in the car, the man initially lied to the officer — even though flakes were clearly visible on the gear shift console.
The second question — whether a local or state officer had authority to search Whitlow’s car based on the violation of a federal law — may have various answers in different jurisdictions. In this case, the appellate court held the Fourth Amendment does not prevent state officers from enforcing federal law. Some appellate courts disagree, and thus far the Supreme Court has not directly ruled on the issue. In Cooper v. California (386 U.S. 58 (1967)), the Supreme Court upheld a search without specific state authorization, reasoning that “a search not expressly authorized by state law” can still be “constitutionally reasonable.”
The appellate court noted there is a long history of local officers arresting for federal law violations, hearkening back to the days of Prohibition. Nearly a century ago, the famous judge Learned Hand noted the Constitution’s supremacy clause “makes all laws of the United States the supreme law of the land,” and thus, it is no different for a state officer to enforce federal law “as one of its own statutes” (Marsh v. United States, 29 F.2d 172 (2nd Cir. 1928)). The question of authority to arrest upon probable cause of violation of federal law is one officers may want to discuss with local prosecutors.
The court also had no trouble concluding there was sufficient evidence to show Whitlow constructively possessed a firearm. One of the guns concealed behind the glove box was a relatively uncommon Glock 19X handgun, tan in color, with an extended magazine. The prosecution showed two photographs from Whitlow’s Instagram page of him holding a tan Glock 19X with an extended magazine. The court concluded there was adequate evidence to support Whitlow’s conviction.
This case is an excellent example of an officer following the necessary steps to take a traffic stop to a criminal investigation. The officer ran the plate (which requires no reasonable suspicion), discovered a traffic violation (expired registration) and made a lawful stop. He observed marijuana and asked smart questions about whether Whitlow had anything unlawful in his possession. After developing reasonable suspicion of criminal activity (seeing the marijuana, hearing Whitlow’s lie, and recognizing that the marijuana was not being stored or packaged as required for medical marijuana), Officer Kazimer conducted a lawful frisk. The visible marijuana, coupled with the marijuana found during the frisk, provided probable cause to search the car. All this led to the fortuitous (though perhaps not for Whitlow) discovery of the guns. The frosting on the cake came in the form of Whitlow’s Instagram photos posing with the Glock. Don’t you just love it when the bandits use social media?
