                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 06a0236n.06
                             Filed: April 4, 2006

                                            No. 04-6454

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


UNITED STATES,                                    )
                                                  )
       Plaintiff-Appellee,                        )
                                                  )
v.                                                )    ON APPEAL FROM THE UNITED
                                                  )    STATES DISTRICT COURT FOR THE
REGINALD SEYMOUR SIMMONS,                         )    MIDDLE DISTRICT OF TENNESSEE
                                                  )
       Defendant-Appellant.                       )


Before: COLE, CLAY and GIBBONS, Circuit Judges.

       JULIA SMITH GIBBONS, Circuit Judge. Reginald Seymour Simmons (“Simmons”) pled

guilty in the United States District Court for the Middle District of Tennessee to being a felon in

possession of a firearm in violation of 18 U.S.C. § 922(g). In his guilty plea, Simmons reserved the

right to appeal a motion to suppress evidence that was denied by the district court. Simmons now

appeals the denial of that motion along with the denial of a motion for a view of the crime scene. For

the following reasons, we affirm the denial of the motion to suppress and the denial of the motion

for a view.

                                                  I.

       Simmons was arrested by two Nashville police officers patrolling the area surrounding the

John Henry Hale Homes—a housing project operated by the Metropolitan Development and

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Housing Authority (“MDHA”). The John Henry Hale Homes constitute a high-crime area, especially

prone to drug activity. To curb crime, the MDHA enforces a no-trespassing policy. The policy

permits only residents or guests who are accompanied by residents on the John Henry Hale property.

Any non-resident who is on the property and unaccompanied by a resident is guilty of criminal

trespass. The no-trespassing policy led to Simmons’s arrest. Officers Donald Long and Daniel Walz

stopped Simmons because they suspected him of trespassing on the John Henry Hale property.

       On June 4, 2003, Officers Long and Walz were traveling down Charlotte Pike adjacent to

the John Henry Hale property. Officer Walz slowed the patrol car as it passed Sixteenth Avenue

North because drugs frequently are sold at the edge of the John Henry Hale property by Charlotte

Pike and Sixteenth Avenue North. In that area, by a guard rail that crosses Sixteenth Avenue North

and blocks vehicular access to the John Henry Hail property, Officers Walz and Long spotted

Simmons and two other men. The men were standing beside a dumpster that is located on the John

Henry Hale property. Officer Long recognized one of the men as Paul Smith—a drug user who

frequently has been charged with burglary and trespassing on the John Henry Hale property. Smith,

Simmons, and the third man noticed the patrol car and immediately started walking away from the

dumpster and past the guardrail up a small incline on Sixteenth Avenue North.

       Officers Long and Walz suspected that Smith was trespassing because they knew that he was

not a resident of the John Henry Hale Homes and previously had been cited for trespassing on the

property. Having driven past Sixteenth Avenue North, they decided to turn around on Charlotte Pike

so they could stop Smith and his companions on suspicion of trespassing.

       By the time Officer Walz completed the U-turn, the three men were in the parking lot of



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Haddox Pharmacy at the corner of Sixteenth Avenue North and Charlotte Pike. Officers Long and

Walz exited their patrol car and approached Smith, Simmons, and the third man. Officer Long

recognized the third man as Ross Perry Manning whom his former partner had cited for trespassing

on the John Henry Hale property. Simmons was unknown to both officers, but they suspected him

of trespassing because they did not think he was a resident of the John Henry Hale Homes.

       Officers Walz and Long had a conversation with Smith and asked Manning and Simmons

if they lived at the John Henry Hale Homes. Manning and Simmons said that they were not John

Henry Hale residents, but Simmons indicated that he had a female relative who was a resident.

Nevertheless, Simmons was unaccompanied by the resident, so Officers Long and Walz decided to

cite him, along with Smith and Simmons, for trespassing.

       Before issuing the citations, police officers who had arrived to assist Officers Long and Walz

conducted a routine records search and found that Simmons was a convicted felon and the subject

of two outstanding warrants. The police officers arrested Simmons on the warrants and conducted

a search incident to the arrest. The search uncovered a crack pipe, two rocks of crack cocaine, and

a loaded .25 caliber pistol on Simmons’s person. A grand jury indicted Simmons for being a felon

in possession of a firearm.

       Simmons moved to suppress the firearm, arguing that the police officers originally stopped

him without reasonable suspicion of criminal activity. He claimed that the firearm must be

suppressed because the stop that led to its discovery was unlawful. Simmons asserted that the police

officers did not reasonably suspect him of violating the MDHA no-trespassing policy because they

did not see him on the John Henry Hale property. The district court denied his motion to suppress



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after crediting the testimony of Officers Long and Walz over that of Manning and Simmons.

        Simmons moved the district court to reconsider its denial of his motion to suppress. He also

moved the district court to view the Sixteenth Avenue North area because he contended that Officers

Long and Walz could not have seen the scene that they described from their moving patrol car. The

district court denied both Simmons’s motion to reconsider and his motion for a view.

        After the district court refused to suppress the firearm, Simmons pled guilty to violating 18

U.S.C. § 922(g). He reserved his right to appeal the denial of the motion to suppress. He now

challenges that denial before this court along with the district court’s denial of his motion for a view.

                                                  II.

        The primary thrust of Simmons’s challenges to both the denial of the motion to suppress and

the motion for a view is that Officers Long and Walz did not see him on the John Henry Hale

property.

        Simmons argues that the district court erred in denying his motion to suppress because his

detention violated the Fourth Amendment and Terry v. Ohio, 392 U.S. 1 (1968). He asserts that

Officers Long and Walz detained him without reasonable suspicion that he was trespassing.

Simmons also argues that the district court only concluded that the officers had reasonable suspicion

by improperly relying on the fact that he had been trespassing on the John Henry Hale property

earlier in the day. Additionally, Simmons argues that the district court erroneously credited the

officers’ testimony that they saw him on the John Henry Hale property because it differed from their

testimony at a state court preliminary hearing on charges that arose from the same incident.

        Simmons’s challenge to the district court’s denial of his motion for a view relies on the same



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basic arguments as his challenge to the district court’s denial of his motion to suppress. He argues

that viewing the scene of his arrest was necessary to demonstrate that Officers Long and Walz did

not see the trespass that would have given them reasonable suspicion for the Terry stop. He claims

that the inconsistencies between the officers’s testimony at the state court preliminary hearing and

the suppression hearing justified an independent viewing by the district court. Even though

Simmons’s challenge to the denial of the motion for a view relies on the same arguments as his

challenge to the denial of the motion to suppress, the district court’s decisions to deny the motions

are reviewed separately.

       A. Motion to Suppress

       Under Terry v. Ohio, “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). The investigation, or Terry stop, must be reasonably related in

scope to the suspicious circumstances that justified its initiation. Berkemer v. McCarty, 468 U.S.

420, 439 (1984). “Typically, this means that the officer may ask the detainee a moderate number of

questions to determine his identity and to try to obtain information confirming or dispelling the

officer’s suspicions.” Id. If the investigation undertaken in a Terry stop exceeds the justified scope

or the Terry stop initially proceeded without reasonable suspicion, the detention violates the Fourth

Amendment and any evidence uncovered by it should be suppressed. See Terry, 392 U.S. at 19

(“[O]ur inquiry is a dual one—whether the officer's action was justified at its inception, and whether

it was reasonably related in scope to the circumstances which justified the interference in the first



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place.”).

       When this court reviews a motion to suppress, it views “[t]he evidence . . . ‘in the light most

likely to support the district court’s decision.’” United States v. Navarro-Camacho, 186 F.3d 701,

705 (6th Cir. 1999) (quoting United States v. Braggs, 23 F.3d 1047, 1049 (6th Cir.1994)). Generally,

this court examines the district court’s legal conclusions de novo but defers to the district court’s

factual findings and credibility determinations unless they are clearly erroneous. See United States

v. Carpenter, 360 F.3d 591, 594 (6th Cir. 2004) (identifying de novo as the standard of review for

legal conclusions and clear error as the standard of review for factual findings); United States v.

Navarro-Camacho, 186 F.3d at 705 (noting that we accord great deference to credibility

determinations by district courts). Factual findings or credibility determinations by the district court

are clearly erroneous only if “‘the reviewing court on the entire evidence is left with the definite and

firm conviction that a mistake has been committed.’” Anderson v. City of Bessemer City, N.C., 470

U.S. 564, 573 (1985) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395

(1948)).

       When a motion to suppress is premised on challenging a Terry stop, “determinations of

reasonable suspicion . . . should be reviewed de novo on appeal.” Ornelas v. United States 517 U.S.

690, 699 (1996). “[T]he district court is at an institutional advantage, [however,] 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)) (alterations omitted).



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       Even though determinations of reasonable suspicion are reviewed de novo, this court applies

the clear error standard of review here because Simmons is attacking the factual findings and

credibility determinations on which the conclusion of reasonable suspicion is based. He is arguing

that the district court concluded that the officers had reasonable suspicion because it improperly

credited the officers’s testimony and made the factual finding that the officers could see onto the

John Henry Hale property from their moving patrol car. Applying the clearly erroneous standard

of review and paying due deference to the district court’s credibility determinations, we affirm the

denial of Simmons’s motion to suppress.

       The district court correctly found that “it is possible to see from Charlotte Avenue down 16th

Avenue over to the MDHA property as a car is traveling westbound on Charlotte” and that “there

is a clear view of the area where the officers said they were able to see the three individuals.” The

maps and photographs offered by Simmons confirm that nothing obscures the view from Charlotte

Avenue straight down Sixteenth Avenue North to the area surrounding the guardrail. Given this

view and the fact that Officers Long and Walz purposefully slowed their patrol car to look for

criminal activity, it was not clearly erroneous for the district court to find that Officers Long and

Walz could have seen Simmons on the John Henry Hale property and that the scene was as they

described.

       The credibility determinations made by the district court—that Officers Long and Walz

could see onto the John Henry Hale property and that Simmons was on the John Henry Hale

property when Officers Long and Walz saw him—were also not clearly erroneous. The transcript

of the state court preliminary hearing does not undermine the officers’ credibility. Despite some



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inconsistencies in the officers’ descriptions of Simmons’s exact location and behavior—whether he

was standing or walking and whether he was on the sidewalk or near the dumpster—the testimony

at the preliminary hearing and the suppression hearing were substantively consistent. At both

hearings, Officers Long and Walz testified that Simmons was on John Henry Hale property when

they spotted him. Likewise, Manning’s and Simmons’s testimony that they were not on the John

Henry Hale property when they first saw the patrol car does not destroy the officers’s credibility.

The district court was entitled to credit the testimony of Officers Long and Walz over that of

Manning and Simmons “as it [was] in the best position to observe [the] witnesses” for indicia of

credibility in their testimony. Johnson, 344 F.3d at 567. Because the district court is better able to

discern credibility from conflicting testimony and the officers’ credibility was not destroyed by the

preliminary hearing testimony, the district court’s credibility determinations are not clearly

erroneous.

       B. Motion for a View

       The district court has discretion to grant or deny a motion for a view of the location of the

arrest. See Nw. Nat’l Cas. Co. v. Global Moving & Storage, Inc., 533 F.2d 320, 323 (6th Cir. 1976)

(“The trial court has discretion whether to permit a view of premises that are the subject of

litigation.”); Reid v. United States, 276 F. 253, 259 (6th Cir. 1921) (finding that an order permitting

a jury view “was within the court’s discretion”); see also United States v. Crochiere, 129 F.3d 233,

236 (1st Cir. 1997) (“The decision to permit a view is entrusted to the sound discretion of the trial

court.”). This court will reverse that decision only if the district court abused its discretion in

rendering it. See Nw. Nat’l Cas. Co., 533 F.2d at 323 (“We do not think that [the view] complained



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of by Northwestern demonstrate[s] an abuse of discretion.”); see also United States v. Woolfolk, 197

F.3d 900, 905-06 (7th Cir. 1999) (“It is well-established that the decision whether to grant . . . a

motion [for a view] rests within the discretion of the trial court and is reviewable only for abuse of

that discretion.”). “A court generally acts within [its] discretion in denying a motion for a view when

there is sufficient evidence describing the scene in the form of testimony, diagrams, or photographs.”

Crochiere, 129 F.3d at 236; see also United States v. Triplett, 195 F.3d 990, 998-99 (8th Cir. 1999)

(finding that the denial of a motion for a view did not constitute an abuse of discretion because “the

evidence presented at trial included photographs and diagrams of the sites of Triplett’s arrests, as

well as testimony regarding the circumstances and conditions at those locations at the relevant

times”).

       The district court did not abuse its discretion when it denied Simmons’s motion for a view.

Viewing the Sixteenth Avenue North area was unnecessary because the district court, which was

functioning as the factfinder at the suppression hearing, was familiar with the area, and Simmons

introduced twenty-nine photographs, five maps, and testimony from Nashville’s lead mapper to

describe where he was arrested. Views, as Simmons acknowledged in his brief, “‘are generally

accepted when they are necessary to an understanding of the litigation and the requisite information

cannot be introduced in any other way.’” (quoting 2 Jack B. Weinstein, Weinstein’s Federal

Evidence § 403.07(4) (2d 2003). Here, the requisite information could be and was introduced

through documentary evidence, testimony, and judicial notice. The First and Eighth Circuits have

held that district courts do not abuse their discretion by denying a motion for a view when the scene

is described by testimony and documentary evidence. Triplett, 195 F.3d at 998-99; Crochiere, 129



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F.3d at 236. We follow our sister circuits and hold that the district court did not abuse its discretion

when it denied Simmons’s motion for a view because ample evidence of the scene was presented

at the suppression hearing.                      III.

       For the foregoing reasons, we affirm the district court’s denial of Simmons’s motion to

suppress and motion for a view.




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