On May 18, 2022, the Sixth Circuit Court of Appeals decided the United States v. Whitley[i], in which the court discussed the reasonable suspicion required to expand a traffic stop into a drug investigation.  The relevant facts of Whitley are as follows:

On September 25, 2019, Detective Jeffrey Woollam set up surveillance of a residence located at 5828 Ridgebrook Avenue in Kentwood, Michigan after receiving a tip from a confidential informant about activity concerning the sale of heroin from that location. Detective Woollam saw Whitley leave the surveilled residence and walk to a red car. According to Detective Woollam, Whitley was “looking at a large bundle or sum of cash in his hand as if he was counting it as he walked out to the vehicle.”

Whitley then embarked on a trip that included multiple stops. He drove away from the residence, and Detective Woollam followed in an unmarked car. Detective Woollam saw Whitley pull into a driveway of a house down the street and meet with another man for 20 to 25 seconds. After the brief meeting, Whitley traveled to a nearby Family Dollar. Detective Woollam’s partner in the Special Investigations Unit, Detective Scott Drumm, met Detective Woollam at the Family Dollar to assist with the surveillance. Whitley exited the Family Dollar without any purchases, took a black bag out of the passenger side of the vehicle, and placed it in the trunk. As Whitley drove out of the parking lot and pulled onto the street, he failed to stop in accordance with the state traffic laws.

Whitley proceeded to a Mother Hubbard Liquor Store. Detectives Drumm and Woollam followed. Whitley walked into the store briefly and left without any packages. When Whitley exited the private drive of the Mother Hubbard, he again failed to stop.

Detective Woollam then called Officer Turmell, a patrol officer in the area. He communicated to Officer Turmell that there was probable cause for a traffic stop based on Whitley’s traffic violations, and that he suspected Whitley of being engaged in a narcotics-related offense. Detective Woollam also requested the presence of a drug-detection dog because of the suspected drug trafficking.

Officer Turmell pulled Whitley over at 7:44 p.m. Detective Woollam was driving behind Officer Turmell when the stop occurred. As Officer Turmell made contact with Whitley, Detective Woollam parked and stood behind Officer Turmell’s patrol vehicle so that Whitley would not see his plainclothes presence.

Officer Turmell explained to Whitley that he had stopped Whitley because Whitley had failed to make a complete stop when exiting two private drives. He asked Whitley to produce his identification, automobile registration, and proof of insurance. While waiting for the documents, Officer Turmell asked whether Whitley had anything illegal in the vehicle. Whitley stated that he did not. After Whitley handed the requested documents to Officer Turmell, the officer noticed a scale in Whitley’s lap and asked why it was there. Whitley stated that he smokes weed, did not have any, and was on his way to get some.

Officer Turmell told Whitley that he would be right back. He proceeded to tell Detective Woollam that Whitley had a scale “right there” on his lap. This prompted Detective Woollam to say that they should pull Whitley out of the vehicle. Officer Turmell returned to the vehicle and asked Whitley to step out for him. Whitley responded by saying “what?” Officer Turmell replied that they wanted to “investigate the scale real quick.” He further explained that Whitley was not presently under arrest, but that they needed “to have a conversation.” When Whitley did not exit the vehicle, Detective Woollam approached the passenger side window and told Whitley that he was now under arrest.

Whitley continued to refuse to get out of the vehicle. He stated that he needed to call his lawyer and that he had not done anything illegal. When Whitley stated that he would call his lawyer, Detective Woollam asked if he needed to make this call because he had “something.” Officer Turmell then noted that Whitley had marijuana “shake” (residue) in the vehicle. Whitley pointed out that marijuana is legal in Michigan. Officer Turmell responded that Whitley was “also hindering [his] investigation by not coming out” of the vehicle and that Whitley “would be under arrest for that too.”

As the officers were ordering Whitley to exit the vehicle, Detective Woollam explained to Whitley that they “stopped [him] for a valid reason and then [they] saw drug paraphernalia in [his] lap,” so he was “not free to leave.” When Whitley continued to refuse to get out, Detective Woollam repeated that he was being told to exit the vehicle because he had “digital scales in [his] lap,” which constitutes “possession of drug paraphernalia.” Detective Woollam also proclaimed that Whitley could not be smoking weed and driving his vehicle, to which Whitley asked: “When was I smoking?” Whitley insisted that he had not been smoking in his vehicle.

Over the next seven minutes, Whitley continued to refuse to get out of the vehicle, explaining that he wanted to wait until his mother got there. Whitley finally exited the vehicle when his mother arrived, which was about twenty minutes after he was initially pulled over. He was arrested for “hindering” and “opposing” the officers’ investigation.

After Whitley was taken into custody, the canine unit was deployed. The “K-9 narcotics sniff” revealed a “large[,] sealed baggy that had marijuana residue in it,” which prompted the officers to conduct a search. In the car, the officers uncovered a handgun with an extended magazine underneath the driver’s seat and a handgun magazine, digital scale, and $6,784 in cash in the center console. They also found an additional $912 in cash on Whitley’s person and 692.5 grams (approximately a pound and a half) of marijuana in a black bag in the trunk of the vehicle.

Whitley told the police that he knew the gun was under the seat and that, if tested, his fingerprints would be on the gun and the ammunition. He also stated that he takes “donations” in exchange for marijuana.[ii]

Whitley was subsequently charged with federal drug and weapons violations.  He filed a motion to suppress the evidence, arguing the search was unlawful.  The district court denied the motion and Whitley pleaded guilty with the right to appeal the denial of the motion to suppress.  He then filed a timely appeal with the Sixth Circuit Court of Appeals.

On appeal, the court considered three issues: (1) Whether the officers expanded the scope of the traffic stop into a drug investigation; (2) Whether the officers, if they abandoned the traffic stop for a drug investigation, had reasonable suspicion that Whitley was involved in illegal drug activity; and (3) Whether there was probable cause to search Whitley’s vehicle.

Issue One:  Did the officers expand the scope of the traffic stop into a drug investigation?

The court of appeals first noted several legal principles relevant to this issue.  The principles were as follows:

  • A lawful traffic stop must therefore be limited in scope and duration. Rodriguez v. United States, 575 U.S. 348, 354, 135 S. Ct. 1609, 191 L. Ed. 2d 492 (2015).[iii]
  • If an officer exceeds the scope or duration of the traffic stop, he must have “reasonable suspicion” to continue the stop on unrelated grounds. at 354-55. [T]he Fourth Amendment tolerate[s] certain unrelated investigations that d[o] not lengthen the roadside detention” of traffic stops. Id. at 354 (citing Arizona v. Johnson, 555 U.S. 323, 327-28, 129 S. Ct. 781, 172 L. Ed. 2d 694 (2009); Caballes, 543 U.S. at 406). Such unrelated investigations include questioning and dog sniffs.[iv]
  • But “a traffic stop ‘can become unlawful if it is prolonged beyond the time reasonably required to complete th[e] mission’ of issuing a warning ticket.” [**7]  at 354-55 (alteration in original) (quoting Caballes, 543 U.S. at 407).[v]
  • In addition to determining whether to issue a ticket, an officer’s “mission” during a traffic stop “includes ‘ordinary inquiries incident to [the traffic] stop,'” such as “checking the driver’s license, determining whether there are outstanding warrants against the driver, and inspecting the automobile’s registration and proof of insurance.” (alteration in original) (quoting Caballes, 543 U.S. at 408).[vi]
  • In contrast, “measure[s] aimed at ‘detect[ing] evidence of ordinary criminal wrongdoing[]'” lack “the same close connection to roadway safety as the ordinary inquiries” and therefore are “not fairly characterized as part of the officer’s traffic mission.” at 355-56 (second alteration inoriginal) (citation omitted).[vii]
  • [The Supreme Court, in] Rodriguez expressly rejected the view that a “de minimis” intrusion or delay is permissible. at 353, 356-57. Thus, post-Rodriguez, our prior caselaw permitting de minimis extensions of traffic stops is no longer good law. . . The Court made clear that “[t]he reasonableness of a seizure . . . depends on what the police in fact do.” Id. Finally, the Court explained that “[t]he critical question . . . is not whether the [police activity or questioning] occurs before or after the officer issues a ticket, . . . but whether conducting the sniff prolongs—i.e., adds time to—the stop.” Id[viii]

Simply put, an officer must normally confine his activities on a traffic stop to only matters related to the reason for the stop and other routine matters such as license status checks, warrant checks, registration, and insurance.  If an officer expands the scope of the stop into other matters such that time is added to the stop, the officer must have reasonable suspicion of other criminal activity.  Even a de minimus (very minor) amount of time will violate the Fourth Amendment.

The court of appeals then examined the events that occurred during the traffic stop.  They noted that the initial encounter with Officer Turmell was within the scope of the reason for which Whitley was stopped, failure to stop pulling out of a private driveway.  During this initial encounter, the officer observed a scale on Whitley’s lap.  The officer returned to his vehicle and advised Detective Woollam of the scale.  At this point, Officer Turmell returned to Whitley and told him he wanted to “investigate the scale real quick.”  The court of appeals stated

At that point, the traffic stop had morphed into a drug investigation, prompting Detective Woollam to say that they should pull Whitley out of his vehicle.[ix]

The line of questioning regarding the scale added time to the traffic stop and was not related to the original purpose of the stop.  The court stated

[W]e look at “what the police in fact d[id]” and whether it related to the purpose of the traffic stop. Id. Thus, if the stopped party can show “either that the [police activity] was not ‘tied to the traffic infraction’ or that the traffic stop ‘reasonably should have been’ already completed,” Hernandez v. Boles, 949 F.3d 251, 257 (6th Cir. 2020) (emphases added) (quoting Rodriguez, 575 U.S. at 354) then the traffic stop has been prolonged and independent reasonable suspicion is required.[x]

Therefore, the court held that the officers did expand the scope of the stop beyond the original purpose of the stop.  As such, the court advanced to the second issue in this case.

Issue Two:  Did the officers have reasonable suspicion that Whitley was involved in illegal drug activity?

The court first noted the legal principles relevant to this issue, which were as follows:

The court then examined the facts of the case that are relevant to the issue of whether the officers had reasonable suspicion that Whitley was engaged in drug activity.  The court stated

The facts relevant to whether the officers had reasonable suspicion are as follows: 

  • Detective Woollam received information from a confidential informant about the sale of heroin at 5828 Ridgebrook Avenue in Kentwood, Michigan.
  • Detective Woollam observed Whitley leave the home with a “wad of cash” that Whitley appeared to be counting.
  • Whitley drove to a house down the street—5986 Ridgebrook—where he had an interaction, lasting less than 30 seconds, with another male.
  • Detective Scott Drumm observed Whitley exit the Family Dollar without any purchases, take a black bag out of the passenger side of the vehicle, and place it in the trunk of the vehicle.
  • Whitley then drove to the Mother Hubbard Liquor Store in Grand Rapids, entered the liquor store empty handed, and came out empty handed.
  • During the traffic stop, which was initiated for failing to come to a standstill while exiting a private drive, Officer Turmell noticed a digital scale sitting in plain view on Whitley’s lap.
  • One of the officers observed marijuana “shake” on the dashboard of Whitley’s vehicle.[xiv]

The court held that these facts were sufficient to establish reasonable suspicion that Whitley was engaged in criminal drug activity.

Whitley argued that the Michigan Regulation and Taxation of Marihuana Act (MRTMA) negates the reasonable suspicion because this Act makes it lawful to (1) possess 2.5 ounces or less of marijuana, (2) distribute it for no remuneration, and (3) states that possession of 2.5 ounces or less is not grounds for a search.

The court of appeals was not persuaded by this argument for several reasons.  First, while possession of the small amount of “shake” would not be grounds for a search, the scale can be used in a reasonable suspicion or probable cause analysis, as that is not expressly excluded in the Act related to grounds for a search.  Second, Whitley’s actions would make it reasonable to believe that he was distributing illegal drugs for money, for example the “wad” of cash, and his

admission he received “donations.”  Lastly, Whitley argued that each individual fact relied upon in the reasonable suspicion analysis is innocent on its face.  The court replied that the reasonable suspicion analysis relies on the totality of the circumstances rather than each fact in isolation.

Thus, the court held that the officers did have reasonable suspicion to lawfully expand the scope of the stop into a drug investigation.

Issue Three:  Did the officers have probable cause to search Whitley’s vehicle?

The court first noted the legal principles relevant to this issue which were as follows:

In Whitley’s case, a trained and certified drug detection dog conducted a sniff of the exterior of his vehicle and gave a positive alert for the presence of illegal drugs.  This provided the officer’s probable cause to search the vehicle, and the automobile exception allowed the officers to conduct the search without a warrant.  As such, the evidence seized from the vehicle was the product of a lawful search.

Therefore, the court of appeals affirmed the denial of the motion to suppress.



[i] No. 20-1955 (6th Cir. Decided May 18, 2022)

[ii] Id. at 3-7

[iii] Id. at 9

[iv] Id.

[v] Id. at 10

[vi] Id.

[vii] Id.

[viii] Id. at 11

[ix] Id. at 13

[x] Id. at 17 (emphasis added)

[xi] Id. at 19

[xii] Id. at 19

[xiii] Id. at 25

[xiv] Id. at 20

[xv] Id. at 28

[xvi] Id.

Print Friendly, PDF & Email