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.

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 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.

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 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.

The district court had jurisdiction pursuant to 18 U.S.C. & sect; 3231. This court has jurisdiction pursuant to 28 U.S.C. § 1291.

"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, 116 S. Ct. 1657, 134 L. Ed. 2d 911 (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)).

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 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 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.

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, 540 U.S. 419, ___, 124 S. Ct. 885, 890, 157 L. Ed. 2d 843 (2004) (quoting Florida v. Royer, 460 U.S. 491, 497, 103 S. Ct. 1319, 75 L. Ed. 2d 229 (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, 104 S. Ct. 1758, 80 L. Ed. 2d 247 (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., ___ U.S. ___, ___, 124 S. Ct. 2451, 2458, 159 L. Ed. 2d 292 (2004) ("In the ordinary course a police officer is free to ask a person for identification without implicating the Fourth Amendment."). Therefore, at this point in the encounter, Higgins's actions towards Foster were lawful.

Pursuant to Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (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, 88 S. Ct. 1868 (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, 109 S. Ct. 1581, 104 L. Ed. 2d 1 (1989). "[A] pattern of suspicious behavior need only be recognizable by one `versed in the field of law enforcement.'" United States v. Knox, 839 F.2d 285, 290 (6th Cir.1988) (quoting United States v. Cortez, 449 U.S. 411, 418, 101 S. Ct. 690, 66 L. Ed. 2d 621 (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, 88 S. Ct. 1868. 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, 105 S. Ct. 1568, 84 L. Ed. 2d 605 (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 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, 101 S. Ct. 690, 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 stop based on the reasonable inferences he may draw "in light of his experience," Terry, 392 U.S. at 27, 88 S. Ct. 1868, 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, 104 S. Ct. 3138, 82 L. Ed. 2d 317 (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, 95 S. Ct. 2574, 45 L. Ed. 2d 607 (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 placed him in his car until the closest patrol car, which was several blocks away, arrived.8

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, 88 S. Ct. 1868. 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, 88 S. Ct. 1868. 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, 103 S. Ct. 3469, 77 L. Ed. 2d 1201 (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 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.

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 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 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.

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.