United States of America v. ABDUL OUTLAW On Appeal from the United States District Court for the District of…

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 24-2114
UNITED STATES OF AMERICA,
Appellant
v.
ABDUL OUTLAW
_____________________________________
On Appeal from the United States District Court
for the District of New Jersey
(District Court No.: 2:21-cr-00382-001)
District Judge: Honorable Brian R. Martinotti
_____________________________________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
April 15, 2025
Before: CHAGARES, Chief Judge, SCIRICA and
RENDELL, Circuit Judges
(Filed: May 28, 2025)
Sabrina G. Comizzoli
Mark E. Coyne

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Alina Habba
Office of United States Attorney
970 Broad Street
Room 700
Newark, NJ 07102
Counsel for Appellant
Michael J. Pappa
Rudnick Addonizio Pappa & Comer
25 Village Court
Park Village
Hazlet, NJ 07730
Counsel for Appellee
_________
OPINION OF THE COURT
_________
RENDELL, Circuit Judge.
Though they are often discussed in tandem, probable
cause to search is not the same as probable cause to arrest. The
facts in this case could have plausibly supported a search of
Appellee Abdul Outlaw’s vehicle. But they did not support his
arrest, and therefore did not support a search incident to his
arrest. Accordingly, we will affirm the District Court’s order
suppressing the fruits of the officer’s unlawful search.
I.
On the evening of December 31, 2020, four plainclothes
police officers in unmarked cars patrolled a high-crime area in
Newark. One of the officers, Detective Marc Castro, testified
that on this patrol, he spotted a parked, running Audi that had
its sunroof open and “heavy aftermarket tints.” App. 60. As

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Castro’s vehicle approached the Audi, he testified that he
smelled burning marijuana,1 and decided to conduct a vehicle
stop. At the time, it was a crime in New Jersey to operate a
vehicle while in possession of marijuana.
Castro then stepped out of his vehicle, illuminated the
Audi’s windshield with his flashlight, and saw that there were
two occupants in the vehicle. One of those occupants—the
driver—was Appellee Abdul Outlaw. When he shined his
flashlight into the windshield, Castro did not see Outlaw or the
passenger smoking marijuana, exhibiting signs of being under
the influence of marijuana, discarding anything, or making
furtive movements. Castro approached the driver’s side of the
Audi, Outlaw rolled down his window, and Castro saw smoke
emanating from the window and noticed that “the smell of
burning marijuana became more pungent.” Id. at 64. Upon
request, Outlaw provided his license, registration, and
insurance documents without making sudden or furtive
movements, and while keeping his hands in plain view.
Castro then asked Outlaw to step out of the vehicle,
“[d]ue to the belief there’s criminal activity afoot in the vehicle
due to the smell of burning marijuana, along with physically
seeing the smoke emanating from the vehicle.” Id. at 65. He
did not, however, see Outlaw or the passenger smoking
1 Though it was a cold day, Castro kept his window rolled
down “to be aware of sounds, odors, [and] smells.” App. 59.
He testified that he knew the smell was burning marijuana from
his training and experience as a detective in the Newark Police
Department’s criminal intelligence unit, which included
“hundreds” of encounters with marijuana or other controlled
substances. Id. at 62. He also testified that there were no
pedestrians in the Audi’s vicinity.

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marijuana, ask them if they had been smoking marijuana, smell
marijuana on their breath or clothing, or observe that they
appeared to be under the influence of marijuana. Castro
decided to pat down Outlaw “[d]ue to the burning marijuana
inside the vehicle” and his “belie[f] there may be more
contraband or weapons, and due to officers’ safety.” Id. at 66.
Castro found a firearm with a scratched-off serial number and
a prescription bottle with 3.6 grams of raw marijuana on
Outlaw’s person, and (after the pat-down) placed him under
arrest. Castro testified that the raw marijuana he uncovered was
not the burning marijuana he smelled.
Officers also searched the passenger. They did not find
anything illicit and did not arrest her. They also did not find
any weapons or drugs in the car, nor did they find marijuana
residue or paraphernalia that could confirm Castro’s testimony
that he smelled burning marijuana.
The officers issued two motor vehicle summonses to
Outlaw for his illegally tinted windows and possession of
marijuana (the raw marijuana in the bottle) in a motor vehicle
in violation of N.J. Stat. Ann. §§ 39:3-75, 4-49.1. Outlaw was
also charged with unlawful possession of a firearm and
unlawful possession of marijuana in violation of N.J. Stat. Ann.
§§ 2C:39-7B(1), 39-5B, 39-3D, 35-10A(4). Later, after the
Government adopted the case for federal prosecution, a grand
jury charged Outlaw in a one-count indictment with unlawful
possession of a firearm in violation of 18 U.S.C. § 922(g)(1).
Outlaw moved to suppress the evidence obtained from Castro’s
search (i.e., the firearm and prescription bottle with marijuana),
and, after an evidentiary hearing and supplemental briefing, the
District Court granted Outlaw’s motion. The court reasoned
that, while the vehicle stop was lawful given the tinted
windows and burning marijuana smell, Castro did not have

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reasonable suspicion or probable cause to search Outlaw’s
person. This appeal followed.
II.
The District Court had jurisdiction under 18 U.S.C.
§ 3231. This Court has jurisdiction under 18 U.S.C. § 3731, as
the United States Attorney has certified that it complies with
§ 3731’s requirements.
We review “the District Court’s denial of a motion to
suppress for clear error as to the underlying factual findings
and exercise[] plenary review of the District Court’s
application of the law to those facts.” United States v.
Alexander, 54 F.4th 162, 170 n.10 (3d Cir. 2022) (alteration in
original) (quoting United States v. Perez, 280 F.3d 318, 336
(3d Cir. 2002)).
III.
The sole issue before us is whether Detective Castro had
probable cause to arrest Outlaw. If there was probable cause to
arrest Outlaw, it was permissible to search his person. See
United States v. Robinson, 414 U.S. 218, 226 (1973) (“When
an arrest is made, it is reasonable for the arresting officer to
search the person arrested in order to remove any weapons that
the latter might seek to use in order to resist arrest or effect his
escape.”). The fact that Castro searched Outlaw before the
formal arrest is of no moment—if there was probable cause to
arrest Outlaw prior to the pat-down, there was no Fourth
Amendment violation. See Rawlings v. Kentucky, 448 U.S. 98,
111 (1980); United States v. Paige, 870 F.3d 693, 700–01 (7th
Cir. 2017) (no Fourth Amendment violation where officer
conducted pat-down shortly before arresting defendant, where

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officer smelled marijuana on defendant prior to search); United
States v. Wright, 844 F.3d 759, 763 (8th Cir. 2016) (same).2
The Fourth Amendment permits an officer to arrest a
suspect without a warrant where there are “facts and
circumstances within the officer’s knowledge that are
sufficient to warrant a prudent person, or one of reasonable
caution, in believing, in the circumstances shown, that the
suspect has committed, is committing, or is about to commit an
offense,” that is, where the arrest is supported by probable
cause. Michigan v. DeFillippo, 443 U.S. 31, 37 (1979).
Probable cause is determined “with reference to the facts and
circumstances within the officer’s knowledge at the time of the
investigative stop or arrest.” United States v. Laville, 480 F.3d
187, 194 (3d Cir. 2007). “[W]e do not evaluate probable cause
in hindsight, based on what a search does or does not turn up.”
Fla. v. Harris, 568 U.S. 237, 249 (2013). So here, we cannot
consider the fact that the officers did not uncover any
marijuana paraphernalia, residue, or other evidence of
marijuana use in Outlaw’s car. We can only consider the facts
within Castro’s knowledge when he decided to search
Outlaw’s person.
The Government urges that the marijuana odor and
smoke emanating from the driver’s side window created
probable cause to arrest Outlaw. In support of this argument,
the Government points to United States v. Ramos, where we
said that “the smell of marijuana alone, if articulable and
2 As Outlaw rightly points out, the fruits of the search
themselves (the firearm and marijuana) cannot provide
probable cause for the arrest. See Smith v. Ohio, 494 U.S. 541,
543 (1990). But the Government does not advance that dead-
end argument here.

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particularized, may establish not merely reasonable suspicion,
but probable cause.” 443 F.3d 304, 308 (3d Cir. 2006).
The Government reads Ramos to say that marijuana
odor alone creates probable cause to arrest. But that ignores the
phrase “if articulable and particularized.” Id. We now clarify
the import of that phrase and join our Sister Circuits in
concluding that, while the smell of marijuana alone can create
probable cause to search a vehicle,3 there must be facts that
connect the smell to an individual passenger for there to be
probable cause to arrest that passenger. See Paige, 870 F.3d at
700; United States v. Perdoma, 621 F.3d 745, 749 (8th Cir.
2010); United States v. Humphries, 372 F.3d 653, 659–60 (4th
Cir. 2004).4 In other words, for a search of a vehicle (or other
3 United States v. Green, 897 F.3d 173, 186 (3d Cir. 2018);
United States v. Scheetz, 293 F.3d 175, 184 (4th Cir. 2002);
United States v. Johnson, 707 F.3d 655, 658 (6th Cir. 2013);
Long v. United States, 847 F.3d 916, 921 (7th Cir. 2017);
United States v. Beard, 708 F.3d 1062, 1065 (8th Cir. 2013);
United States v. Snyder, 793 F.3d 1241, 1244 (10th Cir. 2015);
United States v. Stancil, 4 F.4th 1193, 1199 (11th Cir. 2021);
cf. United States v. Sheffield, 832 F.3d 296, 305 (D.C. Cir.
2016) (probable cause to search vehicle where officer “smelled
the ‘faint’ scent of ‘fresh marijuana,’ and saw an abnormally
large number of air fresheners throughout the car”).
4 Of course, in both circumstances, the smell of marijuana can
only establish probable cause when an officer has training and
experience relevant to identifying such a smell. See Green, 897
F.3d at 183, 186. Here, it is undisputed that Castro was “aware
of the smell of marijuana” “[d]ue to [his] training and
experience” in “hundreds” of “narcotics arrests[ and]
investigations[.]” App. 62.

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confined space), the odor must be particularized to that space,
and for an arrest or search of a person, the odor must be
particularized to that person. See Ramos, 443 F.3d at 308; cf.
Ybarra v. Illinois, 444 U.S. 85, 91 (1979) (“Where the standard
is probable cause, a search or seizure of a person must be
supported by probable cause particularized with respect to that
person.”). When the odor is particularized to a vehicle, and an
individual is alone in that vehicle, this distinction is immaterial.
But where, as here, there are multiple individuals within the
vicinity of the smell, there is not probable cause of marijuana
possession particularized to any one person absent additional
facts.5 See Humphries, 372 F.3d at 659.
5 To be clear, this scenario is distinct from that in Maryland v.
Pringle, 540 U.S. 366 (2003). There, the officers found $763
in cash and five plastic baggies containing cocaine in a vehicle
and arrested all three of the vehicle’s occupants despite not
knowing to whom the cash and drugs belonged. Id. at 368. The
Court concluded that the officers had probable cause to arrest
the three men, as it was “reasonable . . . to infer a common
enterprise” because “[t]he quantity of drugs and cash in the car
indicated the likelihood of drug dealing, an enterprise to which
a dealer would be unlikely to admit an innocent person with
the potential to furnish evidence against him.” Id. at 373; see
also United States v. Chauncey, 420 F.3d 864, 871 (8th Cir.
2005) (inferring common criminal enterprise among vehicle’s
passengers based on odor and observation of “seeds, stems, and
sandwich bags on the floor of the van, and a scale inside a
grocery bag hooked to the passenger seat”); United States v.
Myers, 986 F.3d 453, 454–55 (4th Cir. 2021) (inferring
common criminal enterprise among vehicle’s passengers
where officers found over 300 grams—a “distributable
amount”—of fentanyl in a vacuum-sealed plastic bag in the

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While it is a close question, we agree with the District
Court that Castro’s testimony does not establish probable
cause.6 Before he approached the car, Castro did not observe
or detect any evidence of marijuana ingestion (other than the
odor), nor did he see Outlaw or the passenger move furtively
or attempt to discard any evidence. True, when he walked
towards the car, Castro saw smoke come from the driver’s side
window and noticed that the odor became more pungent. But
who’s to say that it was necessarily Outlaw’s smoke, rather
than that of the passenger? Moreover, after Outlaw got out of
the car, Castro did not smell marijuana on his person, clothing,
or breath, and did not see evidence indicating that Outlaw was
vehicle and previous surveillance raised suspicion of drug
dealing). Differently, here, smoke and marijuana odor alone do
not evince a common criminal enterprise. While a drug dealer
would be unlikely to expose an innocent person to evidence of
their criminal activities, we cannot say the same of a casual
marijuana user.
6 We reject Outlaw’s argument that the District Court did not
find Castro’s testimony credible. True, the District Court noted
that Castro’s testimony was “somewhat contradictory” and
“seemingly conflicting.” App. 24 & n.16. But it also stated that
it “found no indicia, in Detective Castro’s body language, tone,
or otherwise, that he was being anything but forthright and
honest at the Hearing when providing his testimony;” and
“therefore . . . f[ound] Detective Castro’s testimony credible.”
Id. at 23 n.14. It then reiterated that it “found Detective Castro
to be credible,” id. at 24 n.15. In light of these statements, we
cannot read the District Court’s opinion as Outlaw does. In the
absence of clear error, we too accept Castro’s testimony as
credible.

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under the influence of marijuana. If the smoke from the
driver’s side window heightened Castro’s suspicion that
Outlaw (not the passenger) was smoking marijuana, the lack of
a smell on Outlaw’s person or other signs of recent ingestion
should have dispelled such suspicions.
In cases where courts have concluded that marijuana
odor was sufficiently localized to the arrestee, the connection
to the arrestee was not in doubt. And, in those cases, events
leading up to the arrest increased or confirmed the officer’s
individualized suspicion, whereas here, they undermined it. In
Humphries, which we relied on in Ramos, 443 F.3d at 308, the
officers smelled “a strong odor of marijuana” when they were
about 20 feet from Humphries. 372 F.3d at 659. There was not
probable cause to arrest Humphries at that point, however, as
he “was not alone on the street, . . . so the odor could not
initially be tied to [him] alone.” Id. But there was probable
cause to arrest him once the officer followed him and, from 5
to 10 feet away, smelled “the same strong odor of marijuana .
. . coming off his person.” Id. Likewise, in United States v.
Paige, there was probable cause to arrest Paige where the
officer smelled marijuana coming from his person and no other
people were around. 870 F.3d at 700–01. And in United States
v. Perdoma, there was probable cause to arrest Perdoma where
the officer smelled marijuana emanating from his person
during a brief one-on-one conversation. 621 F.3d at 747–49. In
each of those cases, the officer could reasonably discount the
possibility that the odor came from someone other than the
arrestee. This case would be analogous if Outlaw had been
alone in his car. But he was not. There was a very real
possibility that the passenger’s actions, not Outlaw’s, created
the marijuana odor and smoke. We therefore conclude that
probable cause was lacking, and the search violated Outlaw’s
Fourth Amendment rights. The District Court was right to

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suppress the fruits of Castro’s unlawful search. See United
States v. Dupree, 617 F.3d 724, 730 n.5 (3d Cir. 2010).
IV.
For the foregoing reasons, we affirm the District Court’s
order granting Outlaw’s motion to suppress.

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