When federal law authorizes state-officer enforcement or is otherwise silent, the Fourth Amendment does not prevent state officers from enforcing federal law.
U.S. v. Whitlow
Sixth Circuit Appellate Court
April 16, 2025
Expired License Plate Traffic Stop
On Friday September 17, 2021 at 2:43 am. Mr. Andre Whitlow was driving his mother’s car. Solon Police Officer Thomas Kazimer observed Mr. Whitlow driving and decided to run a registration check on his vehicle. The officer learned that the car’s license plate was expired and pulled Mr. Whitlow over.
Observation of Loose Marijuana and a Lie
As Mr. Whitlow was gathering his license, registration, and insurance, Officer Kazimer asked if Mr. Whitlow had anything illegal in the vehicle. Mr. Whitlow said, “no.” [and was lying]. But Officer Kazimer observed loose bits of marijuana scattered across the gear shifter in the center console of the car. So, he followed up his first question by asking Mr. Whitlow if he had any marijuana. Mr. Whitlow shook his head no.
Weed License
Based on his observations, Officer Kazimer decided to search the car. But before he started searching, he ordered Mr. Whitlow out of the car and patted him down. While searching Mr. Whitlow, Officer Kazimer found a bag of marijuana. Mr. Whitlow then acknowledged that there was marijuana in the car, but he told Officer Kazimer that he had a “weed license.”
Hidden Compartment with Two Firearms
Convicted and Sentenced to Ten Years in Prison
After a backup officer arrived, the two officers searched the car. As one officer was searching the front glove compartment, the compartment suddenly fell out. Two firearms were hidden in a cavity behind the glove compartment: a tan Glock handgun with an extended magazine and a Ruger handgun. The officers then arrested Mr. Whitlow. Because Mr. Whitlow had two previous felonies, the government charged him with being a felon in possession. See 18 U.S.C. §§ 922(g)(1), 924(a)(2). After a two-day trial, a jury found him guilty. The court sentenced Mr. Whitlow to 120 months in prison.
Five Feeble Appeals
Mr. Whitlow brings several challenges on appeal. He argues that (1) Officer Kazimer lacked probable cause to search his car; (2) the evidence was insufficient to convict him; (3) the district court erroneously admitted various pieces of evidence; (4) the district court allowed improper testimony; and (5) his sentence was procedurally unreasonable. Because none of Mr. Whitlow’s challenges succeeds, we affirm his conviction and sentence.
Vehicle Search
Mr. Whitlow first challenges the legality of the car search. Before trial, Mr. Whitlow moved to suppress the firearms found during the search. The district court denied his motion. On appeal, we review the district court’s factual findings for clear error and legal conclusions de novo. United States v. Rogers, 97 F.4th 1038, 1041 (6th Cir. 2024). We affirm the lower court’s denial of a suppression motion if “any reason” justifies the court’s conclusion.
Probable cause is not a difficult standard to meet; it only requires a “fair probability” that an officer will find contraband or evidence of a crime.
The Fourth Amendment generally requires police to obtain a search warrant before performing a search. But law enforcement officers may search a vehicle without a warrant if they have probable cause to believe it contains evidence of a crime. See United States v. Galaviz, 645 F.3d 347, 355 (6th Cir. 2011). Probable cause is not a difficult standard to meet; it only requires a “fair probability” that an officer will find contraband or evidence of a crime. United States v. Sanders, 106 F.4th 455, 461 (6th Cir. 2024) (en banc) (quotation omitted). And in determining whether a fair probability exists, we look at the totality of the circumstances “through the common-sense lens of ordinary people, not the technical lens of trained lawyers.” United States v. Sheckles, 996 F.3d 330, 337 (6th Cir. 2021).
Here, the government argues that Officer Kazimer had probable cause that Mr. Whitlow’s marijuana possession violated both federal and state law.
[D]id Officer Kazimer—a state officer—have the authority to search Mr. Whitlow’s car based on this federal-law violation?
Whether Officer Kazimer had probable cause of a federal-law violation implicates two separate issues. First, did Officer Kazimer have probable cause to believe that Mr. Whitlow violated federal law? And second, did Officer Kazimer—a state officer—have the authority to search Mr. Whitlow’s car based on this federal-law violation? The answer to the first question is yes. The answer to the second question is a bit tricker, but it’s also yes in these circumstances.
Loose Marijuana Violates Federal Law
Officer Kazimer had probable cause of a federal-law violation. This point is straightforward: the officer saw “loose marijuana scattered across the gear shifter in the center console.” That was enough for Officer Kazimer to conclude that Mr. Whitlow was violating the Controlled Substances Act, which prohibits marijuana possession. See 21 U.S.C. § 844(a).
Can State Law Enforcement Officer Enforce a Federal Law?
The second question is not as straightforward: Do state officials have the authority to conduct a search based on probable cause of a violation of federal law? The Supreme Court has never considered the issue, and lower courts are inconsistent. See Orin S. Kerr, Cross- Enforcement of the Fourth Amendment, 132 Harv. L. Rev. 471, 495 (2018).
The answer to this question potentially varies depending on whether (i) federal law authorizes or is silent on state-officer enforcement; (ii) state law forbids state-officer enforcement; or (iii) federal law forbids state-officer enforcement. Here, both federal and Ohio law appear silent on whether a state officer may enforce the Controlled Substances Act.
[T]he Fourth Amendment does not prevent state officers from enforcing federal law.
When federal law authorizes state-officer enforcement or is otherwise silent, the Fourth Amendment does not prevent state officers from enforcing federal law. This makes sense for several reasons.
Established Case Law – Prohibition
First, most federal law-enforcement agencies are of recent vintage. Id. at 530. That is why historically enforcement of federal law was often left to state officials. Id. For example, state officials played a major role in enforcing federal laws during Prohibition. See, e.g., Marsh v. United States, 29 F.2d 172, 173 (2d Cir. 1928) (Learned Hand, J.) (“[I]t has been a universal practice of police officers in New York to arrest for federal crimes.”).
Federalist Paper #36
What’s more, one scholar has noted that at the time of the Founding, Federalists and Anti-Federalists alike thought that the federal government could affirmatively “make use of the State officers” to enforce federal law. See Wesley J. Campbell, Commandeering and Constitutional Change, 122 Yale L.J. 1104, 1106 (2013) (quoting The Federalist No. 36, at 227– 28 (Alexander Hamilton) (Jacob E. Cooke ed., 1961)); see also id. at 1139 (“Anti-Federalists generally preferred state administration of federal laws.”). And although the federal government’s conscription of state officers might amount to unconstitutional commandeering, Printz v. United States, 521 U.S. 898, 925 (1997), the history supports state officers voluntarily enforcing federal law.
Supremacy Clause is Supportive of State Law Enforcement Enforcing Federal Law
Second, the structure of the Constitution also supports state officers enforcing federal law. As Judge Learned Hand observed in Marsh, the Supremacy Clause “makes all laws of the United States the supreme law of the land,” and thus, it’s no different for a state officer to enforce federal law “as one of its own statutes.” Marsh v. United States, 29 F.2d 172, 174 (2d Cir., 1928) . So, the fact that federal laws apply within the states supports the authority of state officers to enforce those laws to the same extent as state law. Thoughtful scholars agree. See Kerr, Cross-Enforcement, supra, at 529–30; see also F. Andrew Hessick, Quasi-Sovereign Standing, 94 Notre Dame L. Rev. 1927, 1939 (2019).
[W]hile the parties don’t identify any Ohio law that would prohibit the search here, state law is likely irrelevant to whether a Fourth Amendment violation has occurred.
Third, courts routinely allow state-officer enforcement of federal law in the absence of affirmative federal authorization. See e.g., United States v. Steinman, 130 F.4th 693, 712–13 (9th Cir. 2025) (upholding seizure of vehicle by state officer on grounds that he had probable cause of evidence of federal crime); United States v. Smith, 899 F.2d 116, 118 (1st Cir. 1990) (Breyer, J.) (rejecting defendant’s argument that state officer could not seize weapon in plain view pursuant to federal statute because “we are not aware of any state or federal law that prohibits state police” from doing so (emphasis in original)).
Fourth, while the parties don’t identify any Ohio law that would prohibit the search here, state law is likely irrelevant to whether a Fourth Amendment violation has occurred. Indeed, when state law is silent as to what its officers may do, the Supreme Court has made clear that officers may perform a search consistent with the Constitution. For example, in Cooper v. California, 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.” 386 U.S. 58, 61 (1967). And in California v. Greenwood, the Supreme Court reiterated that a search’s reasonableness was not dependent on state law. 486 U.S. 35, 43 (1988). Finally, in the seizure context, the Court has upheld a seizure even though it violated local police rules. See Whren v. United States, 517 U.S. 806, 815 (1996).
The Fourth Amendment question doesn’t change based on the “trivialities” of state law.
And even when state law prohibits a specific type of enforcement, that doesn’t appear to affect the Fourth Amendment inquiry. In Virginia v. Moore, the officers arrested the defendant for driving with a suspended license. 553 U.S. 164, 166–67 (2008). In most circumstances, including the one at issue, Virginia law did not permit officers to arrest someone for driving with a suspended license. Id. So, the Virginia Supreme Court suppressed the crack cocaine that officers found in their search incident to arrest. Id. at 168. The Supreme Court reversed. Id. at 178. Importantly, the Court pointed out that state law was irrelevant to the Fourth Amendment question. Id. at 172. The Fourth Amendment question doesn’t change based on the “trivialities” of state law. Id. (citation omitted). Rather, the question remains constant: is there probable cause for the search or arrest even if it is for a minor crime. Id. at 171. Any additional protections a state provides are treated “exclusively as matters of state law.” Id.
[T]he particularities of state law don’t seem relevant to this Fourth Amendment question.
Taking its lead from Moore, the Tenth Circuit found it “irrelevant” for Fourth Amendment purposes whether state law authorized an officer to conduct an arrest for a federal- law violation. United States v. Turner, 553 F.3d 1337, 1346 (10th Cir. 2009). In short, the particularities of state law don’t seem relevant to this Fourth Amendment question.
Just as “any amount of illegal contraband” can establish probable cause “to seize it,” so too can any amount of illegal contraband establish probable cause to conduct a warrantless search of a vehicle.
Thus, the relevant question in this case is the ordinary Fourth Amendment question: whether the officer had probable cause to believe that the search would turn up fruits of the crime. During the stop, Officer Kazimer observed “loose marijuana scattered across the gear shifter in the center console” of Mr. Whitlow’s car. Based on Officer Kazimer’s approximately eight years of experience in law enforcement, the substance was “100 percent marijuana.” Id. at Pg. ID 92, 119. Thus, it was “immediately apparent” that the car could contain contraband. United States v. Loines, 56 F.4th 1099, 1106 (6th Cir. 2023) (quotation omitted). That was enough to establish probable cause to search the vehicle. Just as “any amount of illegal contraband” can establish probable cause “to seize it,” so too can any amount of illegal contraband establish probable cause to conduct a warrantless search of a vehicle. Sheckles, 996 F.3d at 341. Thus, the resulting search was constitutionally reasonable. Cf. Moore, 553 U.S. at 171 (“In a long line of cases, we have said that when an officer has probable cause to believe a person committed even a minor crime in his presence, the balancing of private and public interests is not in doubt. The arrest is constitutionally reasonable.”).
Officer Kazimer also had probable cause of a violation of Ohio’s marijuana laws. At the time of the stop, marijuana was illegal under Ohio law, “save for stringently regulated medical usage.” United States v. McCallister, 39 F.4th 368, 371 (6th Cir. 2022) (citing Ohio Rev. Code Ann. §§ 2925.11, 3796.01–.31).
[T]here were multiple reasons for Officer Kazimer to conclude that there was probable cause that the marijuana was illegal.
In response, Mr. Whitlow argues that he had a license to carry medical marijuana, so Officer Kazimer could not have known whether the marijuana he saw was illegal. But there were multiple reasons for Officer Kazimer to conclude that there was probable cause that the marijuana was illegal.
[T]he marijuana residue itself suggested illegal use.
First, the marijuana residue itself suggested illegal use. To Officer Kazimer, the substance looked like “dried marijuana that often falls from drug paraphernalia or when people are rolling marijuana blunts or using it inside vehicles.” And officers can have probable cause that a suspect’s possession of marijuana is illegal even if marijuana may be legal in some instances.
In United States v. Pointer, for example, the “sight of marijuana in the car” contributed to a finding of probable cause. No. 22-1082, 2022 WL 17820539, at *9 (6th Cir. Dec. 20, 2022). There, the marijuana contributed to probable cause that the suspect was driving under the influence. Here, the loose, scattered marijuana suggested illegal drug use. It therefore wasn’t unreasonable for Officer Kazimer to conclude that the marijuana was evidence of a crime.
Ohio courts agree that evidence of marijuana that could be legal medical marijuana can still provide probable cause of a state-law violation. See State v. Wright, 243 N.E.3d 782, 789 (Ohio Ct. App. 2024) (holding that a dog sniff can contribute to probable cause even though Ohio legalized forms of marijuana); see also State v. Burke, No. 29256, 2022 WL 2286933, at *6–7 (Ohio Ct. App. June 24, 2022) (emphasizing that officer’s observation of marijuana contributed to probable-cause determination despite legalization). To be sure, Ohio courts’ probable-cause determinations don’t bind us. But they’re relevant to determining whether the sight of marijuana in Mr. Whitlow’s vehicle created probable cause of a state-law violation. See United States v. Jackson, 103 F.4th 483, 489–90 (7th Cir. 2024) (finding that Illinois courts’ interpretation of Illinois marijuana laws “support[ed]” the court’s probable-cause determination).
Ohio requires patients to store medical marijuana in the “original dispensing package with an unaltered dispensary label” or in the “container provided by a dispensary.”
In addition, Mr. Whitlow appeared to be violating Ohio’s administrative regulations on the possession of medical marijuana, which further supports Officer Kazimer’s determination that Mr. Whitlow possessed contraband. Ohio requires patients to store medical marijuana in the “original dispensing package with an unaltered dispensary label” or in the “container provided by a dispensary.” Ohio Admin. Code § 3796:7-2-05(G). But the smattering of marijuana on the car’s center console suggested that Mr. Whitlow hadn’t obtained his marijuana legally; if he had, it would’ve been in the proper packaging. Ohio also mandates that patients store medical marijuana in a “secure location” to prevent unauthorized access. Id. at § 3796:7-2-05(E). Mr. Whitlow’s failure to comply with this regulation also suggests that he didn’t possess the marijuana legally.
Mr. Whitlow, for his part, responds that violations of Ohio’s medical marijuana regime aren’t criminal and therefore he couldn’t have possessed contraband. But the fact that Mr. Whitlow seemed to be disobeying Ohio regulations could’ve factored into Officer Kazimer’s assessment that the vehicle had a “fair probability” of containing something illegal. See Jackson, 103 F.4th at 489 (finding that lack of compliance with state laws on packaging and use of marijuana provided probable cause).
[W]e have held that a “false answer in response to questions by the police based on the police officer’s personal knowledge may constitute probable cause.”
Further, Mr. Whitlow lied to Officer Kazimer when the officer asked whether Mr. Whitlow had marijuana in the car. Since the officer had already seen the marijuana, this apparent lie contributed to the probable cause calculation. Indeed, we have held that a “false answer in response to questions by the police based on the police officer’s personal knowledge may constitute probable cause.” United States v. Anderson, 923 F.2d 450, 457 (6th Cir. 1991).
In the end, the totality of the circumstances indicated a fair probability that Mr. Whitlow had contraband in violation of Ohio law.
In the end, the totality of the circumstances indicated a fair probability that Mr. Whitlow had contraband in violation of Ohio law. Florida v. Harris, 568 U.S. 237, 244 (2013). Officer Kazimer saw marijuana, which was illegal in most cases, in Mr. Whitlow’s car. The marijuana was also in a form that suggested illegal use. And when Mr. Whitlow indicated that he didn’t have any marijuana, Officer Kazimer knew Mr. Whitlow lied. In sum, the facts known to Officer Kazimer at the time created a “fair probability” of contraband in Mr. Whitlow’s vehicle under Ohio law. Thus, the court below correctly denied Mr. Whitlow’s motion to suppress the evidence found from that search.
Insufficient Evidence Appeal
Next, Mr. Whitlow argues there was insufficient evidence to convict him. In reviewing the sufficiency of the evidence, we view the evidence in the light most favorable to the government and ask whether “any rational trier of fact” could have found Mr. Whitlow guilty. United States v. Aldridge, 98 F.4th 787, 793 (6th Cir. 2024) (citation omitted) (emphasis in original).
Mr. Whitlow Constructively Possessed the Firearms
The only contested element of the felon-in-possession charge is whether Mr. Whitlow knowingly possessed a firearm. Because the officer found guns in Mr. Whitlow’s car, the government argued that he constructively possessed them. Constructive possession exists if a person “knowingly ha[d] the power and the intention at a given time to exercise dominion and control over an object.” United States v. Crump, 65 F.4th 287, 295 (6th Cir. 2023). And when someone is near the item, as Mr. Whitlow was, the government only needs to present minimal evidence to tie him to it.
Here, the evidence is more than sufficient to show that Mr. Whitlow constructively possessed a firearm. One of the weapons recovered from Mr. Whitlow’s car was a tan Glock 19X handgun with an extended magazine. At trial, the government introduced two photographs from Mr. Whitlow’s Instagram that depicted him carrying what two law enforcement witnesses identified as a tan Glock 19X with an extended magazine. Cf. United States v. Farrad, 895 F.3d 859, 875 (6th Cir. 2018) (picture alone of defendant holding firearm is enough to convict for felon in possession). And the government introduced evidence that this particular gun was quite rare. Indeed, the ATF agent who testified said he had examined hundreds of firearms and had only seen a Glock 19X one other time. Thus, a rational trier of fact could conclude that the gun in the car was the same one Mr. Whitlow was carrying in those photographs.
Mr. Whitlow’s arguments to the contrary aren’t persuasive. Mr. Whitlow argues that he didn’t own the firearms or the car, and that other people had access to the car. But the government didn’t need to prove that he had exclusive possession or ownership to demonstrate that he had constructive possession. United States v. Kelsor, 665 F.3d 684, 691–92 (6th Cir. 2011). Mr. Whitlow also contends that the testifying detectives couldn’t make out various features of the gun in the images or conclude with certainty that the object in the photographs was a firearm. But the jury evaluated the detectives’ credibility and apparently believed that the firearm in the photographs was the same as the one found at the traffic stop. See Farrad, 895 F.3d at 875 (rejecting defendant’s argument that photographs of him with a gun weren’t clear). We can’t second-guess that determination.
But that case doesn’t move the needle, either.
Finally, Mr. Whitlow relies on United States v. Grubbs, 506 F.3d 434 (6th Cir. 2007). But that case doesn’t move the needle, either. There, the government tried to show that the defendant constructively possessed a handgun found in the house where he was staying. Id. at 436–37. But the evidence connecting the defendant to the handgun was the vague testimony of a neighbor who saw the defendant with a “dark-colored,” “automatic” gun weeks before the search. Id. at 441. Here, by contrast, the Instagram photographs showed Mr. Whitlow with an unusual firearm that was a close match with the rare gun found in the car. And Mr. Whitlow was found in the car with the guns.
Sufficient evidence thus supports the jury’s finding that Mr. Whitlow knowingly possessed the firearms found during the traffic stop.
Mr. Whitlow filed additional appeals that were also overruled; however the additional appeals are not evaluated in this article.
Information for this article was obtained from U.S. v. Whitlow, No. 24-3114.
U.S. v. Whitlow, No. 24-3114 was issued by the Sixth Circuit Appellate Court on April 16, 2025 and is binding in Kentucky, Michigan, Ohio and Tennessee.
Lessons Learned:
- Probable Cause – Probable cause to search the interior of the vehicle was established by the observation of the marijuana shake on first approach. At the time Ohio Admin. Code §3796:7-2-05(G) mandated Ohio medical marijuana patients to store medical marijuana in the “original dispensing package with an unaltered dispensary label” or in the “container provided by a dispensary.”. A violation of this statute. Additionally Mr. Whitlow lied to Officer Kazimer about not having any marijuana in the vehicle and the Sixth Circuit stated: “false answer in response to questions by the police based on the police officer’s personal knowledge may constitute probable cause.” United States v. Anderson, 923 F.2d 450, 457 (6th Cir. 1991).
- Constructive Possession – The Constructive Possession doctrine was established by the Supreme Court of Ohio in 1982. That court carved out a two-part Constructive Possession test; 1) When an individual knowingly exercises dominion and control over an object, even though that object may not be within his immediate physical control; 2) The defendant was conscious of the object’s presence. State v. Hankerson, 70 Ohio St.2d 87 (1982) The most challenging element is to prove that the person was conscious of the object. In this case the court relied on Mr. Whitlow’s Instagram photos to provide the ‘conscious’ element of the two-part Hankerson test “[T]he Instagram photographs showed Mr. Whitlow with an unusual firearm that was a close match with the rare gun found in the car. And Mr. Whitlow was found in the car with the guns. Sufficient evidence thus supports the jury’s finding that Mr. Whitlow knowingly possessed the firearms found during the traffic stop.”.
- State Officer Enforcing Federal Law – In this case Mr. Whitlow argued that a state officer may not enforce federal law. However, the Sixth Circuit held that a state law enforcement officer may enforce federal law and that the U.S. Constitution Supremacy Clause supports, rather than opposes enforcement. “When federal law authorizes state-officer enforcement or is otherwise silent, the Fourth Amendment does not prevent state officers from enforcing federal law.”. Consequently, unless the federal statute has a prohibition against state law enforcement enforcing federal law, the state officer may enforce federal law. I strongly encourage all state law enforcement officers to consult the prosecutor and chain of command prior to enforcing federal law. At the time of this article there is much information in the public discourse of strict enforcement of immigration laws and whether some cities may direct officers to not assist federal officers. This holding in U.S. v. Whitlow, will lead to additional discussion, most especially if a person has not violated state law and a local police officer arrests the person for violating federal immigration law. Also, could an Ohio police officer stake out a cannabis dispensary and arrest a customer for violating federal narcotics law? See 21 U.S.C. §844. Again, I stress to consult both prosecutors and chain of command for direction PRIOR to enforcing any federal law.
- Pre-Sent Arms! Solon Police Officer Thomas Kazimer should be highly commended for his investigation and assistance in prosecution of Mr. Whitlow. Well done!
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