                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 01-2342
                                   ___________

United States of America,            *
                                     *
           Plaintiff-Appellant,      *
                                     * Appeal from the United States
     v.                              * District Court for the
                                     * District of Nebraska.
Shannan D. Hatcher,                  *
                                     *       [PUBLISHED]
           Defendant-Appellee.       *
                                ___________

                             Submitted: October 16, 2001
                                Filed: December 26, 2001
                                 ___________

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

PER CURIAM.

      After being charged with one count of possession with intent to distribute
cocaine base and with one count of forfeiture of United States currency, Shannan D.
Hatcher moved to suppress all evidence and statements as fruits of his illegal arrest.
The district court rejected the magistrate judge's report and recommendation and
granted the defendant's motion to suppress. The United States appeals. We affirm.

      Mr. Hatcher was a passenger in a vehicle stopped by Police Officer Jeffrey
Gassaway for a loud, defective muffler. Officer Gassaway recognized Mr. Hatcher
as an individual he had arrested on three previous occasions. The driver of the
vehicle was unable to produce a licence, insurance information or car registration.
The driver and Mr. Hatcher gave conflicting stories when Officer Gassaway asked
them where they were going. Officer Gassaway testified that Mr. Hatcher moved his
hands in a way that caused the officer to be concerned about his safety. Officer
Gassaway then drew his gun, pointed it at Mr. Hatcher and told him to put his hands
on the dash and not move them. Officer Gassaway took the driver from the vehicle
and handcuffed him. The officer went around to the passenger side of the vehicle and
took Mr. Hatcher from his seat and handcuffed him as well.

       Officer Gassaway then called for back-up because he was the only officer on
the scene. Two more officers arrived on the scene within minutes. Prior to the arrival
of these two officers, Officer Gassaway patted Mr. Hatcher down for weapons.
Officer Gassaway testified that as he came up under the legs into the groin area, Mr.
Hatcher began to scream, state that he was being abused, and yell for help. Mr.
Hatcher testified that Officer Gassaway yanked his pants and underwear up so that
it forced him onto his toes. Mr. Hatcher explained that he yelled because it hurt.
Officer Gassaway ceased the pat-down search at that point.

        One of the two officers to respond to the call for back-up, Officer Saalfeld,
testified that Officer Gassaway instructed both officers to hold Mr. Hatcher physically
because Gassaway thought Mr. Hatcher had "narcotics hidden in his underwear."
Officer Gassaway testified that he suspected Mr. Hatcher was concealing narcotics
based on his experience with arresting individuals who conceal narcotics in their
buttocks area. Next, Officer Gassaway did a quick pat-down search of the driver and
then searched the vehicle. He uncovered nothing illegal.

        Officer Saalfeld testified that he asked Mr. Hatcher if he had any weapons or
drugs on him while Officer Gassaway was searching the car. Officer Saalfeld
testified that Mr. Hatcher stated that he had weed in his shoe. Mr. Hatcher testified
that he did not make that statement. Following the vehicle search, Officer Saalfeld

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claimed that he told Officer Gassaway of this alleged statement. However, none of
the officers searched Mr. Hatcher's shoe to recover the marijuana. When Officer
Saalfeld was asked why the marijuana was not retrieved, he said that Officer
Gassaway had informed them that they might take Mr. Hatcher “down for a strip
search” and he was waiting for further direction from Officer Gassaway.

      Mr. Hatcher remained handcuffed throughout the entire time at the scene. He
was never advised of his rights or that he was arrested. There was no dispute that Mr.
Hatcher was not free to leave. The driver was issued a citation at the scene and
released. Mr. Hatcher was taken to a police station and strip searched. The officers
uncovered marijuana in Mr. Hatcher's shoe and they found crack cocaine when Mr.
Hatcher pulled down his boxer shorts.

      Officer Gassaway transported Mr. Hatcher to the central station for booking.
Officer Gassaway testified that during the drive, Hatcher spontaneously stated that
he had found the crack cocaine.

       Mr. Hatcher's motion to suppress all evidence and statements was granted by
the federal district court1 on the grounds that an arrest occurred when Officer
Gassaway told the back-up officers that he suspected drugs and asked them to hold
Mr. Hatcher until the search of the vehicle was completed. The court concluded that
this arrest was not based on probable cause, but on the hunch of Officer Gassaway.
The decision to strip search Mr. Hatcher was therefore not incident to arrest, and
exceeded the limited scope of a protective search for weapons allowed under Terry
v. Ohio, 392 U.S. 1 (1968). As such, the district court suppressed all fruits of the
search.



      1
       The Honorable Joseph F. Bataillon, United States District Judge for the
District of Nebraska.

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       We remanded this matter to the district court, United States v. Shannan D.
Hatcher, No. 01-2342, 2001 U.S. App. LEXIS 23882 (8th Cir. 2001) (unpublished),
for clarification on two issues: (1) whether the district court credited the police
officer's testimony that during Officer Gassaway's search of the vehicle at the scene,
Mr. Hatcher stated he had marijuana in his shoe; and (2) if the district court did find
the officer's testimony on this issue credible, was the statement made prior to the
completion of the pat-down search that the government argues Officer Gassaway was
unable to complete.

       The district court certified findings to this panel on November 26, 2001. On
the basis of the district court's prior order and these findings, we affirm the district
court's order to suppress all evidence seized and any statements made pursuant to the
unlawful arrest of Mr. Hatcher.

       We review the district court’s factual findings for clear error and we review the
issue of whether a Fourth Amendment violation occurred de novo. See United States
v. Martinez, 78 F.3d 399, 401 (8th Cir. 1996).

       In its certified findings, the district court specifically found that Officer
Gassaway had already decided to conduct a strip search prior to any statement
allegedly made concerning marijuana in the shoe of the defendant. Additionally, the
court found Hatcher did not make a statement regarding marijuana in his shoe at the
scene of the arrest. The court based its conclusion on a careful review of the record
and the fact that the government offered no credible explanation as to why the
officers did not retrieve the marijuana from the defendant’s shoe once he allegedly
confessed that it contained marijuana.

      The district court also found that Officer Gassaway had completed his pat-
down search for weapons prior to the arrival of the back-up officers. As the court
noted, Officer Gassaway was entitled to conduct a pat-down weapons search for

                                          -4-
officer safety. See Terry, 392 U.S. at 26 (explaining that the pat-down search must
be based on reasonable suspicion and must be strictly limited to a search for
weapons).

       If he had not completed his pat-down, as the government contends, Officer
Gassaway could have instructed the back-up officers to complete the search or he
could have done so himself after their arrival. Officer Gassaway's failure to do so
indicates that the pat-down search for weapons had been completed. Any additional
search thereafter was illegal. See Sibron v. New York, 392 U.S. 40, 65-66 (1968)
(explaining that once the search goes beyond the protective search, it becomes invalid
under Terry and all fruits will be suppressed). The district court found no factual
basis in the record to support the contention that the pat-down was not complete and
the government admits that the defendant was being held because Officer Gassaway
suspected drugs.

        The district court correctly applied the law in this case and carefully considered
all the evidence. We affirm the suppression of the fruits of Mr. Hatcher's unlawful
arrest.

      A true copy.

             Attest:

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




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