                                                                     NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                       No. 15-2760
                                      ____________

                            UNITED STATES OF AMERICA

                                             v.

                          ESAIAS JACKSON, a/k/a Esaias Ali

                                       Esaias Jackson,
                                                         Appellant
                                      ____________

                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                           (E.D. Pa. No. 2-14-cr-00619-001)
                         District Judge: Hon. Stewart Dalzell
                                     ____________

                   Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                  October 24, 2016

           Before: VANASKIE, KRAUSE, and NYGAARD, Circuit Judges.

                                 (Filed: March 15, 2017)
                                      ____________

                                        OPINION*
                                      ____________

VANASKIE, Circuit Judge.




       *
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
       This appeal arises from the District Court’s denial of Appellant Esaias Jackson’s

motion to suppress evidence found on his person at the time of his arrest. The District

Court held that a law enforcement officer had probable cause to arrest Jackson, and thus

the evidence found during the subsequent search was admissible. Jackson entered a

conditional plea of guilty, preserving his right to appeal the denial of his suppression

motion. Because there was probable cause to arrest Jackson, we will affirm the denial of

the suppression motion and the ensuing judgment of conviction.

                                             I.

       On May 22, 2014, SEPTA Transit Police Officer Alexander Moldavskiy was

riding a Philadelphia subway car when he smelled the strong odor of marijuana but could

not immediately pinpoint the source. According to Moldavskiy’s testimony, when he

made eye-contact with Esais Jackson, who was sitting nearby, Jackson left his seat and

headed toward the center of the train. Because the smell of marijuana dissipated as

Jackson moved away, Moldavskiy decided to follow him to the middle of the car. While

standing near Jackson, Moldavskiy again detected the odor of marijuana. Once more

Jackson stepped away, and once more the odor disappeared.

       This sequence confirmed Moldavskiy’s suspicion that Jackson was the source of

the odor. Moldavskiy asked Jackson to exit the train with him at the next stop. After

initially complying, Jackson immediately fled when on the subway platform.

Moldavskiy caught Jackson and attempted to wrestle him to the ground. During the

tussle, a 30-round extended magazine fell from Jackson’s shorts. When Moldavskiy

handcuffed Jackson, he also noticed a pistol tucked into the back of Jackson’s pants.

                                              2
Moldavskiy then performed a full pat-down of Jackson and seized Percocet pills, three

sandwich bags of marijuana, one of which was open, and $238 in cash.

       As trial approached, Jackson filed a motion to suppress this evidence, which the

District Court denied after a hearing. The District Court concluded that Moldavskiy had

the necessary probable cause to arrest Jackson and lawfully seize the evidence at issue.

Under a plea agreement, Jackson entered a conditional plea of guilty to one count of

possession of a firearm by a convicted felon, with the understanding that he could appeal

the suppression ruling. Jackson was sentenced to 184 months in prison and a five year

period of supervised release, with an additional fine. Jackson filed a timely appeal

challenging the District Court’s decision on his suppression motion.

                                             II.

       The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction

to review this appeal under 28 U.S.C. § 1291. We review the District Court’s underlying

findings of fact for clear error and exercise plenary review over the application of law to

those facts. United States v. Perez, 280 F.3d 318, 336 (3d Cir. 2002).

       Because the search of Jackson took place incident to arrest, our decision turns on

whether Moldavskiy had probable cause to arrest Jackson. See United States v.

Robinson, 414 U.S. 218, 226 (1973) (officers have the authority to search the person of

an arrestee incident to a lawful arrest). Probable cause to arrest exists when the “facts

and circumstances within the officer’s knowledge . . . are sufficient to warrant a prudent

person, or one of reasonable caution, [to believe] . . . that the suspect has committed, is



                                              3
committing, or is about to commit an offense.” Michigan v. DeFillippo, 443 U.S. 31, 37

(1979).

       In United States v. Ramos, we explained that it is “well settled that the smell of

marijuana alone” can be enough to establish probable cause for an arrest. 443 F.3d 304,

308 (3d Cir. 2006). So long as an officer smells the odor of marijuana and can localize

its source with sufficient particularity, probable cause has been established. Id. (citing

United States v. Humphries, 372 F.3d 653, 658 (4th Cir. 2004)). In Ramos1 we concluded

that the odor of marijuana was “sufficiently particularized” where the officers “smelled

an identifiable marijuana odor” within three or four feet of defendants’ car and, relying

on their skill and experience, concluded that the odor was coming from the vehicle. Id. at

308–09.

       Jackson asserts that the odor of marijuana in the case at hand was not “sufficiently

particularized” to support probable cause, and thus does not fall within our holding in

Ramos. This is incorrect. Case law within this Circuit and others has concluded that so

long as the smell of marijuana can be particularized to a specific person or place, it is

sufficient to establish probable cause. See Ramos, 443 F.3d at 309 n. 6; Humphries, 372

F.3d at 659; United States v. Parker, 72 F.3d 1444, 1450 (10th Cir.1995).

       Following this principle, the District Court concluded that Officer Moldavskiy’s

testimony provided ample support for the proposition that a reasonable officer under the


       1
         We acknowledge that the holding in Ramos dealt with the lower standard of
reasonable suspicion but its precedent is instructive in understanding what constitutes
“sufficient particularity.” Ramos also stands for the conclusion that the smell of
marijuana alone can establish probable cause.
                                              4
circumstances would believe that Jackson was in possession of marijuana. Moldavskiy

testified that the odor of marijuana traveled with Jackson: When Jackson was nearby, the

odor was present; when Jackson moved away, it dissipated. Jackson also appeared

nervous and evasive when Moldavskiy moved toward him, evading eye contact. The

District Court found that Moldavskiy’s testimony was both credible and supported by

ample evidence in the record. See United States v. Ortiz, 422 U.S. 891, 897–98 (1975)

(holding that officers are entitled to draw reasonable inferences based on their knowledge

and experience); United States v. Brown, 159 F.3d 147, 149 (3d Cir. 1998) (deference

should be given to an officer’s conclusions based on his or her experience). On this

record, the District Court had an ample foundation for finding that Moldavskiy had

probable cause to arrest Jackson.2 Accordingly, the District Court did not err in denying

Jackson’s suppression motion.

                                                  III.

       For the reasons set forth herein, we will affirm the District Court’s denial of

Jackson’s suppression motion and Jackson’s judgment of conviction.




       2
        The government argues in its brief that the same conclusion could be reached
regarding the legality of the seizure if the less stringent standard of reasonable suspicion
were employed because Moldavskiy could have conducted an investigatory stop. See
Terry v. Ohio, 392 U.S. 1 (1968). Because we hold that the District Court’s finding of
probable cause was not in error, we need not consider whether Moldavskiy had
reasonable suspicion.

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