                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 99-2285
                                    ___________

United States of America,            *
                                     *
           Plaintiff/Appellee,       * Appeal from the United States
                                     * District Court for the Western
     v.                              * District of Missouri.
                                     *
Reynaldo Tovar-Valdivia,             *          [PUBLISHED]
                                     *
           Defendant/Appellant.      *
                                ___________

                              Submitted: September 14, 1999
                                  Filed: October 15, 1999
                                   ___________

Before RICHARD S. ARNOLD, BRIGHT and LOKEN, Circuit Judges.
                           ___________

PER CURIAM.

      Appellant Reynaldo Tovar-Valdivia (Tovar) was charged with possession of
methamphetamine with intent to distribute in violation of 21 U.S.C. § 841. Tovar filed
a motion to suppress evidence seized from his person. The district court denied the
motion. Tovar entered a conditional guilty plea, reserving his right to this appeal. On
Tovar's timely appeal, we now reverse.
I. BACKGROUND

       On April 6, 1998, Tovar arrived in Kansas City, Missouri, from Los Angeles on
a Greyhound Bus. An officer with the Kansas City Police Department, assigned to
interdiction duties at the bus station where the officer had conducted several drug
seizures, witnessed Tovar exit the bus and leave the bus terminal. The officer's
attention was drawn to Tovar because he had just come off the bus coming from Los
Angeles, a source city for narcotics, and Tovar appeared to be in a hurry. The officer
also testified that he noticed Tovar because he was carrying a new bag, and, in the
officer's experience, most narcotics are carried in new bags.

        While Tovar talked with a cab driver, the officer approached him and identified
himself as a police officer. The officer asked to see a bus ticket, which Tovar
produced, and asked if he could search Tovar's bag, which Tovar said he may. No
contraband was found in the bag. As the officer searched the bag, however, he noticed
bulges under Tovar's shirt and testified that he was concerned they were weapons. The
officer felt the bulges and knew only that they were not part of Tovar's anatomy. He
then summoned another officer whereupon the officers handcuffed Tovar, unbuttoned
his shirt and found narcotics strapped to his body. The officers placed Tovar under
arrest, took him to a confined room in back of the bus station, took pictures of the bags
strapped to his body, and read him his Miranda rights.

      The appellant was charged by indictment with possession with intent to distribute
methamphetamine in violation of 21 U.S.C. § 841(a)(1). After a suppression hearing,
the magistrate judge made the following findings and conclusions: (1) the contact
between the officer and Tovar was initially consensual; (2) the officer had reasonable
suspicion that the defendant was engaged in criminal activity; (3) the officer acted
reasonably in conducting a pat-down search of Tovar; and (4) Tovar's arrest after the
narcotics were discovered was proper and based on probable cause. The district court
entered an order denying Tovar's motion to suppress. He entered a conditional plea.

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Tovar appeals arguing that the district court erred in failing to sustain his motion to
suppress the evidence seized from him at the time of his arrest.

II. DISCUSSION

       When determining whether probable cause exists to make a warrantless arrest,
we review the historical facts supporting probable cause for clear error and review the
district court's determination of probable cause de novo. See Ornelas v. United States,
517 U.S. 690, 699-70 (1996); United States v. Scott, 91 F.3d 1058, 1061 (8th Cir.
1996); United States v. Ball, 90 F.3d 260, 262 (8th Cir. 1996).

       The issues before us are whether the police arrested Tovar before searching his
body and whether the police had probable cause to make that arrest. Whether a
particular seizure amounted to an arrest is a question of law that this court reviews de
novo. See United States v. Bloomfield, 40 F.3d 910, 916 (8th Cir. 1994).

       The Supreme Court has held that a seizure occurs "only if, in view of all of the
circumstances surrounding the incident, a reasonable person would have believed that
he was not free to leave . . . ." United States v. Mendenhall, 446 U.S. 544, 545 (1980).
This circuit has stated that "[p]olice 'seize' a person by engaging in conduct that would
make a reasonable person feel he was not free to leave." Mettler v. Whitledge, 165
F.3d 1197, 1203 (8th Cir. 1999).

       Circumstances indicative of a seizure may include a "'threatening presence of
several officers, the display of a weapon by an officer, some physical touching of the
person, . . . or the use of language or tone of voice indicating that compliance with the
officer's request might be compelled.'" United States v. Galvan-Muro, 141 F.3d 904,
906 (8th Cir. 1998) (quoting United States v. White, 81 F.3d. 775, 779 (8th Cir.
1996)). In addition, when an officer, by means of physical force or show of authority,


                                          -3-
has in some way restrained the liberty of a citizen the court may conclude that a
"seizure" has occurred. See United States v. Roby, 122 F.3d 1120 (8th Cir. 1997).

       We first consider whether the police seizure of Tovar amounted to an arrest. We
have little trouble determining that the officer placed Tovar under arrest when he placed
the handcuffs on him. At that moment, Tovar was restrained and, by any reasonable
standard, was not free to leave.

       Having found that Tovar was "seized" for Fourth Amendment purposes, the next
issue becomes whether the arrest of Tovar, at the time he was cuffed, was supported
by probable cause. Under the Fourth Amendment, probable cause justifies a seizure.
See United States v. Whren, 517 U.S. 806 (1996). Probable cause for a warrantless
arrest "depends . . . upon whether, at the moment the arrest was made, . . . the facts and
circumstances within [the arresting officers'] knowledge and of which they had
reasonably trustworthy information were sufficient to warrant a prudent man in
believing that the [suspect] had committed or was committing an offense." Beck v.
Ohio, 379 U.S. 89, 91 (1964). See also Kuehl v. Burtis, 173 F.3d 646 (8th Cir. 1999);
United States v. Neumann, 585 F.2d 355 (8th Cir. 1978).

       After reviewing the record, we conclude that the officer did not have probable
cause to arrest Tovar. At the suppression hearing, the officer testified that three factors
brought Tovar to his attention: 1) he was arriving from Los Angeles, a source city for
narcotics; 2) he appeared to be in a hurry; and 3) he carried a new bag. The officer
approached Tovar, and, after some general questioning, asked if he could search his
bag. While searching the bag, the officer looked up and saw bulges on the sides of
Tovar's torso. He testified that when he saw the bulges, he did not know what they
were. The officer touched the bulges on the sides of Tovar to determine whether they
were weapons. The officer testified that after touching the bulges, he still did not know
what the bulges were; all he knew was that they were not a part of Tovar's anatomy.
At that moment, the officer placed Tovar under arrest. Taken together, these facts do

                                           -4-
not provide a reasonable belief that Tovar had committed or was committing an
offense. The bulges could have been bandages about his body, a money belt worn
about his ribs, or any number of non-contraband items. The officer's equivocal
testimony clearly establishes the invalidity of the arrest for want of probable cause.1

      Accordingly, we vacate the conviction and sentence and remand to the District
Court for such proceedings as may be consistent with this opinion.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




      1
        The government argued this as a Terry stop. The government reasons that the
officer had reasonable suspicion to stop Tovar (a form of seizure); Tovar consented to
a search of his bag; during a Terry stop, a police officer may frisk for weapons to
protect his safety; the officer thought the bulge in Tovar's clothing might be a weapon;
therefore, the pat-down frisk and discovery of contraband was constitutional. The
government's position is unsustainable. Terry does not authorize a pat-down for
weapons after search of the bag dispelled the officer's reasonable suspicion; nor does
Terry authorize the police officer to handcuff and search an individual after the initial
pat-down of the bulge did not confirm the existence of a weapon or contraband.

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