Rule 206 ELECTRONIC CITATION: 2004 FED App. 0230P (6th Cir.) File Name: 04a0230p.06… v. Derrick L. Foster

*Daniel M. Friedman, Circuit Judge of the United States Court of
Appeals for the Federal Circuit, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0230P (6th Cir.)
File Name: 04a0230p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DERRICK L. FOSTER,
Defendant-Appellant.
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No. 02-3859
Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 01-00183—Solomon Oliver, Jr., District Judge.
Argued: March 12, 2004
Decided and Filed: July 20, 2004
Before: NELSON, MOORE, and FRIEDMAN, Circuit
Judges.*
_________________
COUNSEL
ARGUED: Robert A. Dixon, Cleveland, Ohio, for
Appellant. Joseph P. Schmitz, ASSISTANT UNITED
2 United States v. Foster No. 02-3859
STATES ATTORNEY, Cleveland, Ohio, for Appellee.
ON BRIEF: Robert A. Dixon, Cleveland, Ohio, for
Appellant. Joseph P. Schmitz, ASSISTANT UNITED
STATES ATTORNEY, Cleveland, Ohio, for Appellee.
_________________
OPINION
_________________
KAREN NELSON MOORE, Circuit Judge. Defendant-
Appellant Derrick L. Foster (“Foster”) appeals his convictions
for unlawful possession of a firearm and possession with
intent to distribute phencyclidine (“PCP”). After approaching
Foster to ask him some questions, the police detected the
smell of PCP coming from his person. The officers
proceeded to conduct an investigative stop of Foster, which
led to the discovery of marijuana, PCP, and a handgun.
Foster was arrested, and after a jury trial, convicted. He raises
three issues on appeal: (1) the district court erred when it
denied his motion to suppress evidence used at trial to convict
him; (2) the district court erred when it admitted “other acts”
evidence in violation of the Fifth and Fourteenth
Amendments by allowing the impeachment of a defense
witness by the government; and (3) Foster’s trial counsel
provided ineffective assistance of counsel in violation of the
Sixth Amendment. We AFFIRM the district court’s denial
of Foster’s motion to suppress, as well as its decision to
permit impeachment of the defense witness by the
government. We do not address the ineffective-assistance-of-
counsel claim because the record is inadequate for appellate
review.
I. BACKGROUND
On December 13, 2000, Cleveland Police officer Timothy
Higgins (“Higgins”), along with fellow officers Baker
(“Baker”) and Hupka (“Hupka”), was on foot patrol in the
area of 9310 Amesbury Avenue, in which there was a

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No. 02-3859 United States v. Foster 3
1Officer Baker testified that he never saw Foster emerge from the
vehicle.
2Foster’s ex-girlfriend, Bridgette Glover, testified that she had
thrown his cell phone into the dumpster that day because she was mad at
Foster, and that is why he was out looking in and around the dumpster.
residential apartment complex. Higgins belonged to the Fifth
District, Fresh Start Unit, which “is a unit that answers and
responds to quality of life issues” like “drug activity, loud
music, drinking and gambling.” Joint Appendix (“J.A.”) at
60-61 (Suppression Tr.). Higgins had been in this particular
area of Cleveland many times before in response to
complaints of drug activity. Those past visits had involved an
estimated eighty-five arrests for PCP in that particular
apartment complex. On December 13, Higgins was
responding to a complaint that had been logged at the end of
November 2000. The complaint failed to identify any
particular individuals.
Higgins testified that at around 5:00 pm that day, he and
other members of his team observed Foster emerge from a
parked vehicle that was still running.1 The subject walked
towards a dumpster surrounded by a brick enclosure. The
officers walked towards the dumpster area because in their
“experience . . . sometimes [drug traffickers] hide PCP in the
Dumpster area.” J.A. at 66 (Suppression Tr.). Foster then
walked away from the dumpster area and approached the
officers. Higgins testified that as soon as he was face to face
with Foster, he could smell PCP coming from Foster’s
person. Baker, who was acting as Higgins’s cover officer
while Higgins made contact with Foster, also noticed a strong
odor of PCP coming from Foster. Higgins proceeded to ask
Foster his name, what he was doing there, and whether he had
any identification on him. Foster replied that he was looking
for a cell phone in the dumpster2 and said he did not have any
identification on his person. Higgins said Foster appeared
nervous throughout this encounter.
4 United States v. Foster No. 02-3859
3Baker testified at the suppression hearing that Fo ster made this
request because he was cold.
4At trial, Higgins said he detected “fresh” marijuana. J.A. at 128
(Trial Tr.). However, at the suppression hearing, he simply said he
detected the smell of marijuana. Baker, when testifying at the suppression
hearing, described the smell as “burnt marijuana coming from the
vehicle.” J.A. at 103 (Suppression Tr.). However, he claimed to have
detected the smell as the group approached Foster’s car and said it was
About a minute into the conversation, Foster indicated that
he wanted to return to his vehicle.3 Foster contests this
statement, claiming that he disavowed ownership of the
vehicle. At this time, Higgins handcuffed Foster and
conducted a pat-down of Foster’s person for weapons.
Higgins said he did this because in his experience, people
under the influence of PCP had the tendency to become
violent, so he wanted to ensure that Foster was not armed.
Asked what his plan of action was, Higgins said that he
“identified the smell, and [Foster] couldn’t identify who he
was.” J.A. at 76 (Suppression Tr.). “I wanted to find out
exactly who he was, and with his nervousness, the smell, the
nervousness, and he’s unable to identify who he was, I wasn’t
sure if he was hiding from a warrant, or what exactly was
going [on] at this time, so I needed to investigate a little bit
further to find out —.” J.A. at 76 (Suppression Tr.). Higgins
then heeded Foster’s request, as it was cold out and Foster
was wearing only a tee shirt despite the December weather,
and went to place Foster in the subject’s car for a period until
the officers could get to their car, which was parked several
blocks away. Up until this point, Higgins had never told
Foster that the latter was under arrest. Instead, Higgins told
Foster that “[Higgins was] going to check out who [Foster]
was and that [Higgins] needed to handcuff [Foster] to make
sure there weren’t any weapons that he could access.” J.A. at
81 (Suppression Tr.).
When Higgins opened the driver’s side door of Foster’s car,
he was instantly hit with the smell of marijuana.4 Higgins

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No. 02-3859 United States v. Foster 5
com ing from the vehicle’s wind ow, which was slightly “cracked.”
5Baker testified that Foster was arrested after the gun was found and
before the vials of PCP were detected. A search subseque nt to the arrest
uncovered the PCP , according to Baker.
then asked Foster if there was marijuana in the car, to which
Foster responded that there was some, and that it was located
in the console on the floor. As Higgins leaned into the
vehicle to retrieve the marijuana, he noticed a gun under the
driver’s seat. Higgins picked up the gun and removed the
magazine from the gun along with a live round. The live
round fell on to the seat of the car, and as Higgins went to
pick it up, he saw two vials of PCP and an eye dropper
between the seat and the door of the vehicle. It was at this
time that Foster was arrested and administered Miranda
warnings.5 A subsequent search of Foster’s person revealed
$751 in cash.
On April 18, 2001, an Indictment was issued charging
Foster with two counts of criminal activity. Count One
charged Foster with violation of 18 U.S.C. § 922(g)(1), which
makes it unlawful for a person “who has been convicted in
any court of[] a crime punishable by imprisonment for a term
exceeding one year . . . to ship or transport in interstate or
foreign commerce, or possess in or affecting commerce, any
firearm . . . .” 18 U.S.C. § 922(g)(1). Count Two charged
Foster with violation of 21 U.S.C. § 841(a)(1), possession
with intent to distribute PCP. Foster filed a motion to
suppress the evidence found in his car, claiming he had been
the victim of an illegal search and seizure. An evidentiary
hearing was held on December 5, 2001, and on January 23,
2002, the court issued an order denying the motion. After a
jury trial, Foster was found guilty as charged and on July 23,
2002, was sentenced to two hundred and sixty-two months’
imprisonment. Foster then filed this timely appeal.
6 United States v. Foster No. 02-3859
The district court had jurisdiction pursuant to 18 U.S.C.
§ 3231. This court has jurisdiction pursuant to 28 U.S.C.
§ 1291.
II. ANALYSIS
A. Motion to Suppress
1. Standard of Review
“When reviewing the denial of a motion to suppress, we
review the district court’s findings of fact for clear error and
its conclusions of law de novo.” United States v. Hurst, 228
F.3d 751, 756 (6th Cir. 2000) (citing United States v.
Navarro-Camacho, 186 F.3d 701, 705 (6th Cir. 1999)). With
regard to Terry-stop analysis in particular, “[a]lthough the
standard of review on the ultimate reasonable suspicion
inquiry is de novo, the district court is at an institutional
advantage, having observed the testimony of the witnesses
and understanding local conditions, in making this
determination. Accordingly, ‘due weight’ should be given to
the inferences drawn from the facts by ‘resident judges.’”
United States v. Townsend, 305 F.3d 537, 542 (6th Cir. 2002)
(quoting Ornelas v. United States, 517 U.S. 690, 698 (1996)).
Finally, the evidence must be reviewed “in the light most
likely to support the district court’s decision.” Navarro-
Camacho, 186 F.3d at 705 (quoting United States v. Braggs,
23 F.3d 1047, 1049 (6th Cir. 1994)).
2. Factual Disputes
Foster begins by claiming that the district court committed
clear error with regard to two factual findings. Specifically,
Foster alleges that although Higgins testified that he saw
Foster emerge from the vehicle, Baker testified that he never
saw Foster come out of the car in question. This is relevant
because Foster later denied ownership of the vehicle and its
contents. The second allegation of fact-finding error concerns
conflicting testimony of Higgins and Baker regarding the

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No. 02-3859 United States v. Foster 7
smell of the marijuana coming from Foster’s car, and the time
during the encounter with Foster that each officer smelled it.
Higgins testified at trial that he smelled fresh marijuana when
he opened the car door, while Baker testified at the
suppression hearing that he smelled burnt marijuana coming
from the “cracked” window as he walked over to the car.
“A factual finding will only be clearly erroneous when,
although there may be evidence to support it, the reviewing
court on the entire evidence is left with the definite and firm
conviction that a mistake has been committed.” Navarro-
Camacho, 186 F.3d at 705. Furthermore, as stated above, the
evidence must be viewed on appeal “in the light most likely
to support the district court’s decision.” Id. (quotation
omitted).
Under this standard of review, we cannot say that the
district court clearly erred. Regarding the conflicting
descriptions concerning the timing at which the officers
smelled the marijuana, the district court noted this
inconsistency. However, it seems clear from the district
court’s decision that it, quite appropriately, did not believe
that this discrepancy made any difference to the fact that
marijuana was detected in Foster’s vehicle, thereby providing
the officers with probable cause to search the vehicle. As
regards the different descriptions of the smell of the
marijuana, this conflict stems from comparing testimony
provided by Baker at the suppression hearing with testimony
given by Higgins at the trial. At the suppression hearing
Higgins testified to smelling marijuana, without specifying
whether it was fresh or burnt. Even if we were to consider the
trial testimony, we do not see any significant conflict that
would alter the outcome, for in any event, marijuana was
detected as emanating from Foster’s car and was ultimately
discovered in it. Whether it was burnt or fresh-smelling
marijuana does not change this.
As for the testimony of Higgins that he saw Foster exit the
vehicle, while Baker testified that he did not, the district court
8 United States v. Foster No. 02-3859
was entitled to credit the testimony of Higgins that he saw
Foster exit the vehicle. After all, the district court is “in the
best position to judge credibility,” United States v. Bradshaw,
102 F.3d 204, 210 (6th Cir. 1996), and “this court accords
great deference to such credibility determinations.” Navarro-
Camacho, 186 F.3d at 705. Higgins’s testimony, while
different from Baker’s, does not necessarily even conflict
with Baker’s, for each officer reported from his own
perspective. Accordingly, the district court did not clearly
err.
3. The Initial Encounter
Foster asserts that the police violated the Fourth
Amendment during their initial encounter with him. “‘[L]aw
enforcement officers do not violate the Fourth Amendment by
merely approaching an individual on the street or in another
public place, by asking him if he is willing to answer some
questions, [or] by putting questions to him if the person is
willing to listen.’” Illinois v. Lidster, 124 S. Ct. 885, 890
(2004) (quoting Florida v. Royer, 460 U.S. 491, 497 (1983)).
“[P]olice questioning, by itself, is unlikely to result in a
Fourth Amendment violation.” Immigration &
Naturalization Serv. v. Delgado, 466 U.S. 210, 216 (1984).
A consensual encounter can ripen into a seizure if “in light of
all of the circumstances, [] ‘a reasonable person [would] have
believed that he or she was not free to walk away.’” United
States v. Grant, 920 F.2d 376, 382 (6th Cir. 1990) (quoting
United States v. Saperstein, 723 F.2d 1221, 1225 (6th Cir.
1983)).
Higgins’s initial contact with Foster failed to rise to the
level of a Fourth Amendment violation. When Higgins first
addressed Foster, Higgins asked Foster his name, what he was
doing there, and whether he had any identification on him.
This is permitted under Fourth Amendment precedent. See
Hiibel v. Sixth Judicial Dist. Ct. of Nev., 124 S. Ct. 2451,
2458 (2004) (“In the ordinary course a police officer is free to
ask a person for identification without implicating the Fourth

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No. 02-3859 United States v. Foster 9
Amendment.”). Therefore, at this point in the encounter,
Higgins’s actions towards Foster were lawful.
4. The Terry Stop
Pursuant to Terry v. Ohio, 392 U.S. 1 (1968), “where a law
enforcement officer lacks probable cause, but possesses a
reasonable and articulable suspicion that a person has been
involved in criminal activity, he may detain the suspect
briefly to investigate the suspicious circumstances.” United
States v. Bentley, 29 F.3d 1073, 1075 (6th Cir. 1994). United
States v. Hurst accurately summarizes the relevant law:
[A]n investigative detention is permissible when it is
based upon “specific and articulable facts which, taken
together with rational inferences from those facts,” give
rise to a reasonable suspicion that the individual is, was,
or is about to be engaged in criminal activity . . . . In
reviewing a challenged investigative stop, “the totality of
the circumstances — the whole picture — must be taken
into account.” . . . Furthermore, “[i]n assessing the
reasonableness of the stop, the facts are ‘judged against
an objective standard: would the facts available to the
officer at the moment of the seizure or the search
“warrant a man of reasonable caution in the belief” that
the action taken was appropriate?’”
228 F.3d at 757 (quotations omitted).
An officer who decides to conduct a Terry stop must be
acting on more than his or her “inchoate and unparticularized
suspicion or ‘hunch,’ but [on] the specific reasonable
inferences which he is entitled to draw from the facts in light
of his experience.” Terry, 392 U.S. at 27 (emphasis added).
“That level of suspicion is considerably less than proof of
wrongdoing by a preponderance of the evidence.” United
States v. Sokolow, 490 U.S. 1, 7 (1989). “[A] pattern of
suspicious behavior need only be recognizable by one ‘versed
in the field of law enforcement.’” United States v. Knox, 839
10 United States v. Foster No. 02-3859
F.2d 285, 290 (6th Cir. 1988) (quoting United States v.
Cortez, 449 U.S. 411, 418 (1981)). Additionally, the
authority to conduct a Terry stop is “narrowly drawn” so as to
“permit a reasonable search for weapons for the protection of
the police officer, where he has reason to believe that he is
dealing with an armed and dangerous individual, regardless
of whether he has probable cause to arrest the individual for
a crime.” Terry, 392 U.S. at 27. Finally, “[i]n assessing
whether a detention is too long in duration to be justified as
an investigative stop, we consider it appropriate to examine
whether the police diligently pursued a means of investigation
that was likely to confirm or dispel their suspicions quickly,
during which time it was necessary to detain the defendant.”
United States v. Sharpe, 470 U.S. 675, 686 (1985).
The district court concluded that the officers had reasonable
suspicion to justify a Terry stop. Based on the factors known
to the officers at the time — that Foster smelled strongly of
PCP, that he appeared nervous, that the area they were in was
notorious for heavy drug trafficking, and that Higgins knew
that drug traffickers would hide PCP in or near the apartment
complex dumpsters — the court concluded that all of this
“amount[ed] to reasonable suspicion such that the scope of
the initial stop could properly be expanded.” J.A. at 55. The
court also noted that the length of Foster’s detention did not
exceed the bounds of reasonableness, as the encounter lasted
no more than four minutes.
Foster argues that the officers lacked the reasonable
suspicion necessary to justify a Terry stop. He asserts that by
the officers’ own testimony, they “indicated that they
handcuffed Mr. Foster before conducting the supposed Terry
pat-down. When that procedure yielded no weapons or
contraband, police continued to keep him handcuffed.
Clearly he was under arrest from the moment that he was
handcuffed.” Appellant’s Br. at 16-17. Foster further argues
that as he was arrested from the outset of the confrontation
with the officers, and the arrest lacked probable cause, it was
illegal, and therefore “[a]ny evidence gained as a result of that

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No. 02-3859 United States v. Foster 11
6Foster argues that pursuant to United States v. Wood, 106 F.3d 942
(10th Cir. 19 97), nervo usness is a factor of limited significance because
many individuals will display it when having an encounter with police.
Id. at 948. For purposes of this decision we need not consider Fo ster’s
nervousne ss or the assertion that this was a known drug area as factors
warranting inclusion in the Terry-stop calculus.
7Foster asserts that the officers never claimed that “they feared for
their safety such as to justify a Terry pat-down.” Appellant’s Br. at 19.
However, the law does not require that the officers affirmatively state in
advance that they are fearful tha t the suspect is arm ed in o rder to
legitimize a Terry stop. Rather, an officer is permitted to conduct “a
reasonable search for weapons for [his or her] protection . . . , where he
[or she] has reason to be lieve that he [or she] is dealing with an armed and
dangerous individual.” Terry v. Oh io, 392 U.S. 1, 27 (1968). Here,
Higgins testified that previous dealings with people under the influence
of PCP led him to feel that Foster posed a potential threat of violence,
thereby warranting a pat-down for any concealed weap ons.
illegal arrest should have been suppressed as ‘fruit of the
poisonous tree.’” Appellant’s Br. at 17. The government, on
the other hand, argues that the district court’s conclusion that
the officers had reasonable suspicion sufficient to justify a
Terry stop was correct and should be upheld.
We conclude that the district court did not err in
determining that the Terry stop was based on a reasonable
suspicion that Foster was engaged in criminal activity.
Specifically, we emphasize that the officers’ detection of the
odor of PCP emanating from Foster’s person gave the officers
the authority to detain Foster temporarily to determine his
identity, confirm that he was capable of driving his vehicle,
and more importantly, either confirm or dispel their initial
inclination that Foster was under the influence of PCP.6
Because a Terry stop is justified “by some objective
manifestation that the person stopped is, or is about to be,
engaged in criminal activity,” Cortez, 449 U.S. at 417, the
fact that Foster smelled of PCP, an illegal substance, alone
warrants the officers detaining him to investigate the situation
further.7 Moreover, because an officer may conduct a Terry
12 United States v. Foster No. 02-3859
stop based on the reasonable inferences he may draw “in light
of his experience,” Terry, 392 U.S. at 27, Higgins’s eighty-
five previous PCP-related arrests in that particular apartment
complex are relevant experiences.
Foster argues that once the police conducted a pat-down of
his person, “any suspicion so as to justify further intrusion
was eviscerated.” Appellant’s Br. at 21. However, the police
were still entitled to determine whether he was indeed under
the influence of PCP, and the pat-down for weapons in no
way either confirmed or dispelled that suspicion. As stressed
in Berkemer v. McCarty, 468 U.S. 420, 439 (1984), a Terry
stop permits law enforcement to “detain [a] person briefly in
order to ‘investigate the circumstances that provoke
suspicion.’” Id. (quoting United States v. Brignoni-Ponce,
422 U.S. 873, 881 (1975)) (emphasis added). Hence, patting
down the subject of a Terry stop does not signal the end of the
detention, for law enforcement is permitted to investigate the
circumstances that led them to stop the individual. A pat-
down for weapons is only part of the detention. “[W]hen a
law enforcement officer no longer has any reasonable
suspicion of criminal activity, the detained individual is
constitutionally free to leave.” United States v. Erwin, 155
F.3d 818, 823 (6th Cir. 1998) (en banc). Clearly, the pat-
down did not end Higgins’s reasonable suspicion of Foster.
“To have simply sent [Foster] on his way, without brief
further questioning at the very least, would have been plainly
unreasonable, even inept, police work.” Id.
As for the fact that Foster was handcuffed during the
detention, according to Higgins’s testimony, this was done
only after Foster asked to return to his vehicle. On this point,
Higgins testified that “[his] initial reasoning for going to the
car was the elements and it was cold out.” J.A. at 91
(Suppression Tr.). Higgins also testified that in his
experience, people under the influence of PCP can become
violent, and therefore he wanted to ensure that Foster was not
armed. Therefore, he handcuffed Foster and conducted a
protective pat-down of his person, and then subsequently

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No. 02-3859 United States v. Foster 13
8Higgins said that Foster was p laced in his own vehicle only until
they could get a police car to the location.
placed him in his car until the closest patrol car, which was
several blocks away, arrived.8
Terry spoke to this very situation:
When an officer is justified in believing that the
individual whose suspicious behavior he is investigating
at close range is armed and presently dangerous to the
officer or to others, it would appear to be clearly
unreasonable to deny the officer the power to take
necessary measures to determine whether the person is in
fact carrying a weapon and to neutralize the threat of
physical harm.
Terry, 392 U.S. at 24. In Terry, the officer had reasonable
suspicion that the subjects he was observing were armed and
dangerous. Id. In the present situation, Higgins had reason
to think that Foster could be dangerous, based on his
experience in dealing with people under the influence of PCP.
As in Terry, “the record evidences the tempered act of a
policeman who in the course of an investigation had to make
a quick decision as to how to protect himself and others from
possible danger, and took limited steps to do so.” Id. at 28.
The Supreme Court has repeatedly stressed that “it is
unreasonable to prevent the police from taking reasonable
steps to protect their safety,” and that in so doing, they should
not have to “decide instantaneously what ‘less intrusive’
alternative exists to ensure that any threat presented by the
suspect will be neutralized.” Michigan v. Long, 463 U.S.
1032, 1052 n.16 (1983).
We do not believe that Higgins overstepped the permissible
bounds of the Terry doctrine by handcuffing Foster. First, it
was Foster who made the request to be returned to his vehicle
14 United States v. Foster No. 02-3859
9It cannot be said that Foster was arrested when he was place d in his
own vehicle, especially in light of the fact that “detention in a police
cruiser does not automatically transform a Terry stop into an arre st.”
Houston v. Clark County Sheriff Deputy Joh n Doe s 1-5, 174 F.3d 809,
815 (6th Cir. 1999).
because he was cold.9 Higgins, considering this and knowing
that people on PCP can become extremely violent, handcuffed
Foster not only to conduct the pat-down but also to be able to
place Foster in his car and out of the cold, without having to
worry about the possible weapons in Foster’s car that he
could reach. Second, in light of the situation, it appears that
Higgins made a quick call in a threatening situation, to ensure
the safety not only of himself but also his fellow officers.
This Circuit has stated that it is inappropriate, “in the quietude
of our chambers, to second-guess standard police procedure
and [] on-the-scene judgment.” United States v. Bradshaw,
102 F.3d 204, 212 n.19. In addition, as regards the use of the
handcuffs specifically, this Circuit has previously held that
“the use of handcuffs [does not] exceed the bounds of a Terry
stop, so long as the circumstances warrant that precaution.”
Houston v. Clark County Sheriff Deputy John Does 1-5, 174
F.3d 809, 815 (6th Cir. 1999). In this case, it seems
reasonable that Higgins believed that handcuffing Foster was
the only way to secure the situation. Accordingly, the district
court did not err when it concluded that this was a legitimate
Terry stop.
5. The Search of Foster’s Vehicle
Finally, Foster argues that because he was illegally arrested,
the subsequent search of his vehicle was unlawful. However,
as established above, Foster’s detention was not an arrest, but
was a valid and lawful Terry stop. Accordingly, when the
officers detected the smell of marijuana coming from Foster’s
vehicle, this provided them with probable cause to search the
vehicle without a search warrant. See United States v. Garza,
10 F.3d 1241, 1246 (6th Cir. 1993); see also United States v.
Elkins, 300 F.3d 638, 659 (6th Cir. 2002). This therefore

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No. 02-3859 United States v. Foster 15
turned a lawful Terry stop into a lawful search. As a result,
because the officers had probable cause to search the vehicle,
the marijuana, gun, and PCP recovered from the car were all
properly admissible against the defendant. Accordingly, the
district court was correct when it denied Foster’s motion to
suppress.
B. Admission of Witness’s Inconsistent Statement
“A district court’s decision regarding the admission of
evidence is reviewed for abuse of discretion.” Gibson v.
United States, 271 F.3d 247, 254 (6th Cir. 2001). At trial, the
defense called Bridgette Glover (“Glover”), Foster’s ex-
girlfriend, to testify about the events surrounding Foster’s
arrest, as she claimed to have witnessed them. She testified
on direct examination that Foster was moving his things out
of her apartment on the day of his arrest, as they had just
ended their relationship. She further testified that she and her
son helped Foster search for his cellular phone in the
dumpster. When asked when she had last seen Foster driving
the vehicle involved in the incident, she testified that she had
not seen him driving it on the night in question, and that the
last time she had seen him in it was on November 26, 2000.
On cross-examination, Glover was asked about her testimony
regarding the search for the phone and the car and was then
impeached by a prior inconsistent statement she had made to
police on January 4, 2001. In the prior statement, she said
that she did not help Foster look for a cellular phone in the
dumpster, and that she saw Foster driving the vehicle on the
night of his arrest.
Glover was then asked if she had ever witnessed or had
personal knowledge of Foster selling PCP. The defense
objected, initially asserting that it was hearsay evidence, later
adding a “404(b) basis for it.” J.A. at 185 (Trial Tr.).
Specifically, defense counsel stated: “[I]f she knew he sold
it a year ago, that would be in the nature of 404(b) evidence,
would it not? It’s not connected in time to this possession on
16 United States v. Foster No. 02-3859
this date. I just think it’s highly prejudicial.” J.A. at 185
(Trial Tr.). The following exchange took place:
Court: What about the 404(b)? It seems to me
that’s the only issue, because otherwise, if
she knew something about it firsthand —
Defense: Well —
Court: — she could testify about it.
Defense: If they get by the first —
Court: But 404(b) —
Defense: — prong.
Prosecution: Well, your honor, I think that I would ask
the Court to rule it is admissible. I think
the probative value of this evidence,
assuming it is forthcoming, is extremely
high. We have a defendant here who is
contesting —
Court: I don’t mean 403. I mean 404(b). The
government is supposed to give notice
generally with regards to —
Prosecution: Judge, this is not my witness.
Court: Okay.
Prosecution: Judge, I would contend that if this witness
who was living with the defendant at this
time will testify that she is aware of his
PCP activity, it is certainly extremely
probative to show intent, knowledge,
absen[ce] of mistake or accident, which is
the defendant’s defense here.

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No. 02-3859 United States v. Foster 17
Court: Okay.
- - - - -
Prosecution: We can voir dire her, Your Honor, if the
Court wants to inquire first as to what
personal knowledge she might have of the
PCP.
Court: I think that really is the issue. As I look at
it, Mr. Pyle [defense counsel], I’m looking
under 404(b), it’s the right section, but it
isn’t [the prosecution’s] witness, and so the
government does have the obligation in a
criminal case to provide a reasonable
notice in advance of trial, but in this
circumstance, where it’s not his witness
and where there was no — she wasn’t on
the witness list at the time that we chose
the jury, he could not have responsibility
for having given advance notice when he
didn’t know the witness would ever be
called.
- - - - -
Court: I think given [Foster’s] denial and the
question of whether or not the drugs in the
car [were] his, and so forth, and whether
they were — I think it would go to
opportunity or intent or knowledge, or a
number of those kinds of things, under
404(b), but I think there is a prejudice that
if the question is asked and she gives a
“no” answer, there could be — that could
taint. So I would agree that depending on
what the response is — and so maybe we
should get that answer outside of the jury.
18 United States v. Foster No. 02-3859
J.A. at 185-88 (Trial Tr.).
At this point, the district court determined that a voir dire
of Glover was necessary to determine what she would say in
response to the question about whether she had ever seen
Foster sell PCP. The court noted the following at the outset:
Before you ask the question on voir dire, let me be clear
for the record, to the extent that there was also arguably
an objection under 403, I just wanted to be clear that I
was addressing that, as well. Rule 403 says that,
“although relevant evidence may be excluded if its
probative value is substantially outweighed by the danger
of unfair prejudice, confusion of the issues, or misleading
of the jury, or by considerations of undue delay, waste of
time, or needless presentation of cumulative evidence.”
Here the argument by the defendant is, and would be,
unfair prejudice. However, the Court finds that the
evidence should not be excluded because I don’t find the
probative value is substantially outweighed by the danger
of unfair prejudice. Here the probative value is very high
in the context of a case like this where there are disputed
issues and facts about ownership of a car, about,
therefore, whether the things in the car, drugs and gun,
were those of the defendant, and so it would go to intent,
motive, plan, design, those kinds of issues. So I would
overrule the objection on that ground, as well. What I’ve
decided to do is allow the parties to voir dire the witness
on this issue and then make a determination as to how we
will proceed at trial in light of answers given.
J.A. at 189-90 (Trial Tr.).
During the subsequent voir dire, Glover stated that she had
never seen Foster possess or distribute PCP. The government
proceeded to impeach Glover’s denials with excerpts from a
written statement she had made about three weeks after
Foster’s arrest. In the statement, she said that she observed
Higgins remove vials of PCP from the vehicle in question.

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No. 02-3859 United States v. Foster 19
10The defense did not renew its Rule 404(b) ob jection at any time
after the voir dire of Glover.
She “observed this from the doorway of [her] house and saw
the officers hold up two tubes about three inches high.” J.A.
at 191 (Trial Tr.). She continued: “I know this because I
guess that Derrick Foster sells the PCP. He dips the Newport
cigarettes in the PCP and sells them that way.” J.A. at 191
(Trial Tr.). She also said in this statement that she “kn[ew]
Derrick Foster m[ade] money dealing with PCP.” J.A. at 192
(Trial Tr.). Although she admitted that the statement she
made was accurately written down, she claimed that she made
these statements “out of anger,” and that her statement was
false. J.A. at 191-92 (Trial Tr.).
After the prosecution finished its questioning, the judge
asked both parties their positions as to how to proceed. The
prosecution felt it was entitled to ask the questions, so that the
jury could “assess the validity of [] [Glover]’s denials.” J.A.
at 194 (Trial Tr.). The defense characterized the situation as
a “403 problem,” expressing concern over the jury’s ability to
use the evidence solely for impeachment purposes, and not
substantively, concluding therefore that the prejudice to
Foster would be “overwhelming.”10 J.A. at 194 (Trial Tr.).
The court, calling the situation a “difficult dilemma,” made
the following determination:
[Glover]’s clearly made a statement that she knows that
he deals in PCP or makes money dealing with PCP, and
there are no facts and circumstances developed in the
statement, and that’s not a criticism of the statement, but
there are no facts and circumstances. And that clearly
would have no problem if there were facts and
circumstances in it, to be honest with you, because, you
know, the fact she denies it now is just that, a denial, but
she said it before. And so — Mr. Schmitz [the
prosecution], let me see those — I think there were two
20 United States v. Foster No. 02-3859
11The instruction read:
Now, during the course of this trial you have heard the testimony
of several witnesses. You have also heard that before this trial,
some of them made statements that may be different from their
testimony here in court. Those earlier statements were brought
to your attention only to help you decide how believable their in-
court testimony was. You cannot use them as proof of anything
else. You can only use those earlier statements as one wa y of
evalua ting their testim ony here in court.
J.A. at 209 (Trial Tr.).
places there in the statement where she talks about that.
One was earlier and one was right at the end.
(Discussion off the record).
I don’t think that the defendant can call this witness and
then kind of hide behind her making denials at trial of
things she said in a prior statement. The concern I have
has more to do with specificity of the statement. But she
clearly says that she knows that he deals, makes money
from dealing in PCP. She’s going to deny that’s the case
now, she’s also given us her answer as to why she said
what she said. And I think that what I should do, and
will do, is allow full development of the testimony.
J.A. at 194-95 (Trial Tr.). In conclusion, the judge permitted
Glover’s impeachment, as he determined that Glover “ha[d]
some impeachment material.” J.A. at 197 (Trial Tr.).
However, due to the concern expressed by defense counsel
that the jury would consider this testimony for its truth, and
not purely for impeachment purposes, the judge administered
a limiting instruction at the time the jury was given pre-
deliberation instructions.11 Before being read to the jury,
however, the instruction was read to counsel for both the
government and Foster, both of whom expressed approval of
the wording.

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No. 02-3859 United States v. Foster 21
1. Rule 404(b) Objection
Foster contends that the district court erred when it
permitted Glover’s previous statement to come in, as this
evidence violated Rule 404(b) because it constituted “other
acts” evidence that did not fall within one of the enumerated
exceptions. At the outset, we note that this case is made
rather complicated because of the ambiguity contained in the
record, in that it is not entirely clear on what ground the
district court relied in admitting Glover’s prior inconsistent
statement. However, we do not believe that this is a situation
in which Rule 404(b) applies at all.
Federal Rule of Evidence 404(b) states that
Evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to
show action in conformity therewith. It may, however,
be admissible for other purposes, such as proof of
motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident,
provided that upon request by the accused, the
prosecution in a criminal case shall provide reasonable
notice in advance of trial, or during trial if the court
excuses pretrial notice on good cause shown, of the
general nature of any such evidence it intends to
introduce at trial.
Fed. R. Evid. 404(b). As the rule makes clear, introduction of
evidence that Foster had previously sold drugs would be
inadmissible simply to create the inference that because he
sold drugs in the past, he was guilty of doing it in the present
case. Therefore, if Glover’s previous statement was within
the scope of Rule 404(b), it could only be admitted if it fell
within the scope of an exception, e.g., to prove “motive,
opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident.” These exceptions are
illustrative and not exclusive. See United States v. Hardy,
228 F.3d 745, 750 (6th Cir. 2000).
22 United States v. Foster No. 02-3859
The government impeached Glover using her prior
inconsistent statement to demonstrate that she was
contradicting herself, and therefore that her testimony should
be called into doubt by the jury for that reason. The purpose
was not, nor could it be, to demonstrate that Foster was acting
in conformity with his prior bad acts or character. Showing
that Glover was being inconsistent demonstrates nothing
more than that - her inconsistency with regard to whether or
not she had seen Foster sell drugs in the past. Accordingly,
Rule 404(b) is not triggered.
Glover’s prior inconsistent statement is admissible under
Federal Rule of Evidence 613(b), which permits the
impeachment of a witness by “[e]xtrinsic evidence of a prior
inconsistent statement” if “the witness is afforded an
opportunity to explain or deny the same and the opposite
party is afforded an opportunity to interrogate the witness
thereon . . . .” In the instant case, it is clear that Glover was
properly impeached by her prior statement, as it directly
contradicted the statement she made on the stand.
Accordingly, the district court did not abuse its discretion in
permitting this impeachment. We have permitted the
impeachment of a witness, even when the impeaching
material involves “other acts” of the defendant. See, e.g.,
United States v. Gholston, 10 F.3d 384, 388 (6th Cir. 1993)
(after taking stand and denying having made such statement,
witness impeached by his prior statement that he sold drugs
for, or received drugs from, the defendant).
2. Rule 403 Objection
Foster also asserts that pursuant to Federal Rule of
Evidence 403, the district court erred by letting the
government impeach Glover with her prior inconsistent
statement, because the probative value of that evidence was
outweighed by the unfair prejudice caused by its introduction.
Federal Rule of Evidence 403 states that even relevant
“evidence may be excluded if its probative value is

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No. 02-3859 United States v. Foster 23
substantially outweighed by the danger of unfair prejudice.”
Fed. R. Evid. 403. The district court considered Rule 403
when it made its decision to allow the government to go forth
with its impeachment of Glover, making the following
comments:
Here the argument by the defendant is, and would be,
unfair prejudice. However, the Court finds that the
evidence should not be excluded because I don’t find the
probative value is substantially outweighed by the danger
of unfair prejudice. Here the probative value is very high
in the context of a case like this where there are disputed
issues and facts about ownership of a car, about,
therefore, whether the things in the car, drugs and gun,
were those of the defendant . . . .
J.A. at 189 (Trial Tr.).
A trial court’s Rule 403 determination is reviewed for
abuse of discretion. United States v. Gibbs, 182 F.3d 408,
429 (6th Cir. 1999), cert. denied, 528 U.S. 1051 (1999).
“Under such a standard of review, this court takes maximal
view of the probative effect of the evidence and a minimal
view of its unfairly prejudicial effect, and will hold that the
district court erred only if the latter outweighs the former.”
United States v. Sassanelli, 118 F.3d 495, 498 (6th Cir. 1997).
The district court did not commit an abuse of discretion
when it determined that the probative value of the evidence
was not outweighed by its unfairly prejudicial effect, and
permitted the jury to weigh the credibility of Glover’s direct
testimony, that she had never seen Foster possess or distribute
PCP, armed with the knowledge of her prior inconsistent
statement, that “Foster sells the PCP.” J.A. at 191 (Trial Tr.).
We also note that the district court gave a limiting instruction
to the jury regarding the appropriate use of the impeachment
24 United States v. Foster No. 02-3859
12Foster criticizes the district court because “having admitted the
evidence, [it] failed to instruct the jury whatsoever as to how it may use
the evidence.” Appellant’s Br. at 30. However, as demonstrated above,
the court gave the jury a lim iting instructio n befo re it retired to deliberate
that was approved by bo th parties. Hence, there is no merit to this
argum ent.
evidence,12 thereby limiting any possible unfair prejudice
Foster feared from the jury’s improper use of the testimony.
“A crucial assumption underlying th[e] system [of trial by
jury] is that juries will follow the instructions given them by
the trial judge.” Parker v. Randolph, 442 U.S. 62, 73 (1979);
see also Morgan v. Shirley, 958 F.2d 662, 668 (6th Cir. 1992)
(relying on Randolph assumption). Accordingly, the district
court did not abuse its discretion in its Rule 403
determination.
C. Ineffective Assistance of Counsel
Foster asserts that he was denied the effective assistance of
counsel at trial because his attorney called Glover as a
witness, who then gave testimony on cross-examination that
Foster had previously sold PCP. Foster alleges that this
demonstrates that “[e]ither counsel did not fully prepare and
thus unwittingly placed [Glover] on the stand, or, knowing
that she had given a prior damaging statement, he ran an
unreasonable risk that it would not be revealed during cross-
examination.” Appellant’s Br. at 32. Foster also criticizes his
counsel’s “fail[ure] to request a limiting instruction to the jury
to at least attempt to minimize the damage” allegedly caused
by Glover’s testimony. Appellant’s Br. at 32.
Generally, this court will not review an ineffective
assistance of counsel claim raised for the first time on
direct appeal because the record has not been sufficiently
developed for assessing the merits of the allegation.
However, if the record has been sufficiently developed to
allow this court to evaluate counsel’s performance, this

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No. 02-3859 United States v. Foster 25
court will consider the ineffective assistance claim even
though it was not raised at the district court.
United States v. Goodlett, 3 F.3d 976, 979 (6th Cir. 1993).
See also United States v. Snow, 48 F.3d 198, 199 (6th Cir.
1995).
Because the record is inadequate for appellate review, we
do not decide whether Foster’s counsel was ineffective at
trial. “Ineffective assistance of counsel claims are best
brought by a defendant in a post-conviction proceeding under
28 U.S.C. § 2255 so that the parties can develop an adequate
record on the issue.” United States v. Daniel, 956 F.2d 540,
543 (6th Cir. 1992); see also Massaro v. United States, 123 S.
Ct. 1690, 1694 (2003) (ineffective-assistance-of-counsel
claims may and should be brought in 28 U.S.C. § 2255
proceeding).
III. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s
denial of Foster’s motion to suppress and its decision to
permit impeachment of Glover. As for the ineffective-
assistance-of-counsel claim, we do not address it, as the
record is inadequate for appellate review.

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