NOT PRECEDENTIAL


IN THE UNITED STATES COURT OF APPEALS
         FOR THE THIRD CIRCUIT

              ________________


                 NO. 09-1611
              ________________


       UNITED STATES OF AMERICA

                       v.


           RASHI ABDUL USHERY
                 Appellant

               _______________


 On Appeal From the United States District Court
     For the Middle District of Pennsylvania
   (D.C. Crim. Action No. 1-07-cr-00403-001)
   District Judge: Hon. Christopher C. Conner

              ________________

 Submitted Pursuant to Third Circuit LAR 34.1(a)
               November 2, 2010

 BEFORE: SCIRICA, STAPLETON and ROTH,
             Circuit Judges

       (Opinion Filed: November 5, 2010)
                                    _______________

                               OPINION OF THE COURT

                                   ________________

STAPLETON, Circuit Judge:

       Rashi Abdul Ushery was tried and convicted of possession with intent to distribute

crack cocaine. Ushery challenges two of the District Court=s pretrial rulings, arguing that

it erred in: (1) denying his motion to suppress the drugs found when police searched his

car during a warrantless traffic stop; and (2) excluding Areverse 404(b)@ evidence Ushery

intended to introduce. We will affirm.

                                             I.

       The District Court found the following facts after an evidentiary hearing on

Ushery=s motion to suppress. Officer Brant Maley of the Penbrook (Pennsylvania) Police

Department stopped a car driven by Ushery because it was Aimmediately apparent@ that

the car=s window tint was darker than permitted by state regulations. The car was

registered to Ushery=s father, Ronald Ushery. Chanika Brown, an acquaintance of

Ushery, was in the front passenger seat. When he approached the car to speak to Ushery,

Officer Maley detected an odor of burnt marijuana. Officer Maley, a seven-year veteran

of the police force, had encountered marijuana on numerous occasions, in drug training

and during execution of drug-related warrants.

       Officer Maley radioed for assistance, and after one of the responders, Officer Ryan


                                             2
Lindsley, corroborated the burnt marijuana odor coming from Ushery=s car, 1 Officer

Maley informed Ushery of the odor and asked for consent to search the car. Ushery

refused. Officer Maley then telephoned Ushery=s father, Ronald Ushery, told him about

the marijuana odor, and requested consent. Ronald Ushery consented to the search. The

search turned up no marijuana, but the police did find in the center console five plastic

bags containing seventy-five grams of what a field test would reveal was crack cocaine.

       A grand jury in the Middle District of Pennsylvania returned a one-count

indictment against Ushery, charging him with possession with intent to distribute fifty

grams or more of cocaine base, in violation of 21 U.S.C. ' 841(a). Ushery moved to

suppress the drugs, arguing that probable cause did not support the search, and the

District Court denied that motion. Ushery opted for trial, and the Government filed a

motion in limine, challenging the introduction of evidence of a prior traffic stop of a car

owned by Brown, during which twenty bags of crack cocaine were discovered. Ushery

contended that this evidence tended to show that Brown, and not he, possessed the crack

cocaine in this case. The District Court granted the Government=s motion.

       A jury convicted Ushery, and the District Court sentenced him to, inter alia, 135

months= imprisonment. Ushery appeals, challenging the District Court=s pretrial rulings. 2


       1
         Officer Lindsley also had encountered marijuana on numerous occasions during
his fifteen years on the police force.
       2
      The District Court had jurisdiction over this case pursuant to 18 U.S.C. ' 3231.
We have jurisdiction under 28 U.S.C. ' 1291.

                                              3
                                              II.

       Ushery argues that probable cause did not support the search of his car, and thus

his motion to suppress should have been granted. AWe review a district court=s denial of a

suppression motion for clear error as to the underlying facts, but exercise plenary review

with respect to legal findings made in light of the district court=s properly found facts.@

United States v. Brown, 

, 514 (3d Cir. 2010).

       AThe automobile exception to the [Fourth Amendment=s] warrant requirement

permits law enforcement to seize and search an automobile without a warrant if >probable

cause exists to believe it contains contraband.=@ United States v. Burton, 

, 100

(3d Cir. 2002) (quoting Pennsylvania v. Labron, 

, 940 (1996)). We have

recognized that A[i]t is well settled that the smell of marijuana alone, if articulable and

particularized, may establish not merely reasonable suspicion, but probable cause.@

United States v. Ramos, 

, 308 (3d Cir. 2006) (citing United States v.

Humphries, 

, 658 (4th Cir. 2004); United States v. Winters, 

,

1042 (8th Cir. 2000)); see also United States v. Staula, 

, 602 (1st Cir. 1996)

(A[W]hen a law enforcement officer detects the odor of marijuana emanating from a

confined area, such as the passenger compartment of a motor vehicle, that olfactory

evidence furnishes the officer with probable cause to conduct a search of the confined

area.@). Given the District Court=s finding that Officers Maley and Lindsley, who both

had encountered marijuana on the job on numerous occasions, smelled burnt marijuana

coming from Ushery=s car, the police had probable cause to search the car.

                                               4
       Ushery correctly points out that in Ramos, we decided that an odor of marijuana

established mere reasonable suspicion to stop a vehicle, and we questioned, based on the

facts of that case, whether probable cause existed. See 

n. 5 (A[I]f

our inquiry were whether probable cause existed, we might be inclined to agree with the

District Court that the stop was not justified.@). However, there the police were driving

between two parked vehicles when they detected the odor of marijuana in the vicinity,

and they could not identify from which of the vehicles the odor had come. 

In

those circumstances, we concluded that the odor was Asufficiently particularized@ to

establish reasonable suspicion that the vehicle that was stopped contained contraband, 

but we expressed some doubt about whether probable cause existed. Here,

Officers Maley and Lindsley were standing immediately outside of Ushery=s car, Officer

Maley testified that he Asmelled the obvious odor of burnt marijuana coming from the

vehicle,@ and Officer Lindsley testified that he Asmelled the odor of marijuana inside the

vehicle.@ App. at 28, 43 (empahses added). This case is factually distinct from Ramos,

and so we are convinced that probable cause supported the search of Ushery=s car. 3

                                            III.

       Ushery contends also that the District Court erred when it granted the

Government=s motion in limine and excluded the Areverse 404(b)@ evidence he intended to


       3
        Ushery argues also that the police unlawfully obtained consent from Ronald
Ushery to search the car. Given our ruling that probable cause supported the search even
in the absence of consent, we need not address this argument.

                                             5
introduce. AWe review the District Court=s evidentiary rulings for abuse of discretion.@

United States v. Williams, 

, 315 (3d Cir. 2006) (citing United States v.

Versaint, 

, 831 (3d Cir. 1988)). AUnder the abuse of discretion standard, an

evidentiary ruling is to be reversed only if arbitrary or irrational.@ 

States v. Universal Rehab. Servs., 

, 665 (3d Cir. 2000)).

       Federal Rule of Evidence 404(b) provides that A[e]vidence of other crimes,

wrongs, or acts is not admissible to prove the character of a person in order to show

action in conformity therewith.@ The rule also provides, though, that Aother crimes,

wrongs, or acts . . . may . . . be admissible for other purposes, such as proof of motive,

opportunity, intent . . . .@ Such Aother crimes@ evidence is frequently introduced by the

prosecution to incriminate criminal defendants. 

.

       However, Aa seldomly used subspecies of Rule 404(b) known as >reverse 404(b)= . .

. is utilized to exonerate defendants.@ United States v. Stevens, 

, 1383,

1402 (3d Cir. 1991). ASuch evidence is most commonly introduced by a defendant to

show that someone else committed a similar crime or series of crimes, implying that he or

she also must have committed the crime in question.@ 

-16. A[A]

defendant may introduce >reverse 404(b)= evidence so long as its probative value under

[Federal] Rule [of Evidence] 401 is not substantially outweighed by Rule 403

considerations.@ 

. However, Awe do not begin to balance the

evidence=s probative value under Rule 401 against Rule 403 considerations unless the

evidence is offered under one of the Rule 404(b) exceptions.@ 

.

                                               6
       Ushery intended to introduce evidence of a prior traffic stop of a car owned by

Brown, his passenger on the night at issue in this case, during which twenty bags of crack

cocaine were found. At the time of this prior stop, approximately a year and a half before

the stop at issue in this case, the car owned by Brown was being driven by an individual

named Cedric Simmons, and Brown was not present. In addition, the crack cocaine was

not found in the car itself, but rather Ao[n] Simmons=s person . . . in [his] groin area.@

United States v. Simmons, No. 06-3902, 

, at *2-3 (3d Cir.

Oct. 26, 2007). Nevertheless, Ushery contends that evidence of ABrown=s prior

connection to vehicles containing substantial amounts of cocaine base, taken together

with the fact that she was located in the passenger seat of the vehicle at the time of the

traffic stop[,] . . . is permissible >reverse 404(b)= evidence as it shows [her] opportunity to

commit the crime.@ Def. Br. at 14 (italics in original). We disagree.

       Here, because Brown was in the passenger seat, there is no question that she had

the opportunity to possess the crack cocaine found in the center console. The fact that

one and a half years prior, crack cocaine was found on the person of someone who was

driving Brown=s car, when Brown was not even present, did not increase or decrease

Brown=s opportunity to possess the crack cocaine discovered in Ushery=s car. Essentially,

Ushery was attempting to show that Brown was the possessor of the crack cocaine

because crack cocaine had been found in her car before. This is inadmissible propensity

evidence under Rule 404(b)=s first sentence, not opportunity evidence admissible under

the second. Thus, the District Court was correct, and certainly did not abuse its

                                               7
discretion, in ruling that Athe proffered evidence fails to qualify as admissible evidence

under Rule 404(b).@ App. at 3.

       In the alternative, Ushery argues that even if the evidence of the prior traffic stop is

inadmissible propensity evidence, the District Court=s exclusion of it violated his Fifth

Amendment right to present a full defense. We have Aacknowledge[d] that there might be

cases in which an application of Rule 404(b)=s prohibition against propensity evidence

arguably encroaches on a defendant=s right to present a full defense,@ and that A[u]nder

exceptional circumstances, therefore, it could plausibly be argued that a defendant has a

constitutional right to present propensity evidence otherwise barred by Rule 404(b).@

n.5. However, we fail to see such exceptional circumstances

here, particularly in light of the minimal probative value of the evidence Ushery sought to

introduce. See 

not reach this [constitutional] question here; the evidence

of Urlin=s prior conviction B even if used to show propensity B has minimal probative

value.@). Evidence that crack cocaine was found on the person of a driver of Brown=s car

one and a half years earlier is minimally probative of whether she possessed the crack

cocaine in Ushery=s car. Ushery=s Fifth Amendment rights were not violated.

                                             IV.

       In light of the foregoing, the District Court properly denied Ushery=s motion to

suppress and granted the Government=s motion in limine. The judgment of the District

Court will be affirmed.



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