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No. 95-1870
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Andrew Weaver, *
*
Appellant, *
*
v. *
*
Melvin Williams, Individually *
and in his capacity as an * Appeal from the United States
officer of the Sioux City, * District Court for the
Iowa, Police Department; Mark * Northern District of Iowa.
Skaff, Individually and in his *
capacity as an officer of the * [UNPUBLISHED]
Sioux City, Iowa, Police *
Department; City of Sioux City, *
Iowa, *
*
Appellees. *
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Submitted: January 30, 1996
Filed: February 27, 1996
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Before BEAM, LOKEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
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PER CURIAM.
Andrew Weaver, an Iowa citizen, appeals from the district
court's1 judgment for defendants following a bench trial in
Weaver's 42 U.S.C. §§ 1983 and 1985(3) action. We affirm.
Weaver claimed that he was the victim of an unconstitutional
search in which the police exercised excessive force. Weaver
1
The Honorable Michael J. Melloy, Chief Judge, United States
District Court for the Northern District of Iowa.
alleged that he was singled out, because he was the only black man
in a crowd that was watching police execute a search warrant.
Weaver alleged further that one of the defendant officers threw him
against a concrete wall, put his hands inside Weaver's pants and
his finger in Weaver's anus, and held him without explanation until
the other officer determined there were no outstanding warrants
against him.
The district court found, based on the testimony at trial,
that the officers were involved in a high-risk narcotics search of
a residence associated with gang members; that they were advised
gang members might be armed and dangerous, and had recently been
involved in a series of violent crimes; that Weaver fit the gang
profile; and that one of the officers believed Weaver had exchanged
a gang hand-signal with a woman on the porch of the residence, who
had yelled to Weaver that she would speak to him after the
searching officers left. Crediting the officers' testimony as to
the manner in which Weaver was searched, the court also found that
the officer who frisked Weaver did not place his hands inside
Weaver's pants, and that the search was conducted pursuant to
standard police procedure.
We conclude that the district court's factual findings were
not clearly erroneous,2 and that the court correctly determined the
officers' decision to stop and frisk Weaver was supported by
"reasonable, articulable suspicion that criminal activity may be
afoot." United States v. Brown, 51 F.3d 131, 132 (8th Cir. 1995);
see Terry v. Ohio, 392 U.S. 1, 30 (1968). Although Weaver's
appearance and exchange with the woman were innocent per se, we
agree with the district court that these circumstances--viewed in
their totality in the context of the search in progress--were
sufficient to create the requisite reasonable suspicion.
2
We also see no error in the district court's additional
finding that Weaver suffered only nominal damages.
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See United States v. Sokolow, 490 U.S. 1, 9 (1989) (when considered
together, several innocent activities may create reasonable
suspicion).
We reject Weaver's contention on appeal that the officers
exceeded the scope of a permissible frisk by running a finger
inside his waistband to check for weapons. We conclude that such
a measure is sufficiently related to the protective function of the
Terry rule to be considered within the scope of a permissible
frisk. See Terry, 392 U.S. at 28-30.
Accordingly, we affirm.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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