376 F.3d 577 (6th Cir. 2004), 02-3859, United States v. Foster

Docket Nº:02-3859.
Citation:376 F.3d 577
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Derrick L. FOSTER, Defendant-Appellant.
Case Date:July 20, 2004
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 577

376 F.3d 577 (6th Cir. 2004)

UNITED STATES of America, Plaintiff-Appellee,

v.

Derrick L. FOSTER, Defendant-Appellant.

No. 02-3859.

United States Court of Appeals, Sixth Circuit

July 20, 2004

Argued March 12, 2004.

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ARGUED:

Robert A. Dixon (argued and briefed), Cleveland, OH, for Appellant.

Joseph P. Schmitz (argued and briefed), Assistant United States Attorney, Cleveland, OH, for Appellee.

Before NELSON, MOORE, and FRIEDMAN, Circuit Judges.[*]

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OPINION

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 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.

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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

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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.

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, 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)).

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 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...

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