United States Court of Appeals

For the Eighth Circuit

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No. 15-1894

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Terrence Lamar Hawkins

lllllllllllllllllllll Defendant - Appellant

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Appeal from United States District Court 

for the Western District of Missouri - Jefferson City

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 Submitted: February 9, 2016

 Filed: July 26, 2016

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Before RILEY, Chief Judge, LOKEN and BENTON, Circuit Judges.

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LOKEN, Circuit Judge.

Lincoln University (“LU”) police officers detained and searched Terrence

Hawkins in the student cafeteria on two occasions in early 2011. Both times, they

discovered he was carrying a loaded pistol. Hawkins was indicted and convicted of

being a felon in possession of two firearms, violations of 18 U.S.C. § 922(g)(1). He
appeals the district court’s denial of his pretrial motion to suppress the firearms

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seized during the two searches. We affirm.

I. The First Search and Seizure.

On February 24, 2011, LU Police Chief Bill Nelson and three fellow officers

-- Greg McKinney, Kevin Pigford, and Damon Nunn -- gathered for lunch at LU’s

student cafeteria. They noticed a man seated alone (later identified as Hawkins), who

appeared intoxicated and was not eating. Neither the officers nor studentsthey asked

recognizedHawkins. Chief Nelson and Officer Nunn approached Hawkins and asked

for identification. He was unkempt, his eyes were bloodshot, and he smelled of

alcohol. As Hawkins retrieved his identification, Chief Nelson saw a large amount

of cash in Hawkins’s wallet. While Officer Nunn requested a records check from

dispatch, Chief Nelson asked Hawkins if he was an LU student. Hawkins replied, in

slurred speech, that he had “been a student off and on.” Minutes later, Officer Nunn

reported that Hawkins was not a student, had a criminal history, and was known to

be armed. Meanwhile, Officer McKinney telephoned Probation and Parole and

learned that Hawkins had a prior felony conviction.

At this point, Hawkins stood up but complied when Chief Nelson and Officer

Pigford instructed himto be seated. When Hawkinsstood, Officers Nunn and Pigford

noticed a bulge in his left pants pocket and told Chief Nelson they were concerned

the bulge was a weapon. The Chief asked Hawkins what wasin his pocket. Hawkins

said it was money. The Chief replied that he had seen Hawkins’s money in his wallet. 

Hawkins then said the bulge was “nothing.” Officer Nunn asked if he could retrieve

the item from the pocket. Hawkins refused. Chief Nelson then told Hawkins they

The Honorable Brian C. Wimes, United States District Judge for the Western 1

District of Missouri, adopting the Report and Recommendation oftheHonorable Matt

J. Whitworth, United States Magistrate Judge for the Western District of Missouri.

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were going to search his pocket for the safety of the officers and those in the

cafeteria. As Officer Nunn motioned or reached “to check the pocket,” Hawkins

bolted. The officers tackled and restrained him. In the process, Officer McKinney

felt a hard object from outside Hawkins’s left pants pocket, reached into the pocket,

and pulled out a loaded handgun and marijuana.

Hawkins moved to suppress this evidence, arguing the officers did not have

reasonable suspicion to detain him after they discovered he was not a student, and

they illegally searched his pocket. The district court denied the motion, ruling that:

(i) Hawkins’s interaction with the officers was consensual up to the point the officers

ordered him to be seated; (ii) at that point, the encounter became an investigative stop

under Terry v. Ohio, 392 U.S. 1 (1968); (iii) the officers had reasonable suspicion to

detain Hawkins when he attempted to flee; and (iv) at this point, the officers had

acquired reasonable suspicion to believe Hawkins “was armed and dangerous” to

justify a weapons search under Terry. 

On appeal, Hawkins challenges none of these rulings, conceding that the Terry

stop was permissible. He contends, however, that the stop became a de facto arrest

when the officers “threatened” and “attempted” an unconstitutionalsearch -- namely,

“reaching into his pocket” before conducting a pat-down search to determine if he

wasin fact armed and dangerous. He argues that this alleged arrest was not supported

by probable cause; thus, “any evidence seized following that point must be excluded

as fruit of the unconstitutional arrest.” We review de novo whether the detention

amounted to an arrest, but review findings “as to what the parties said or did” for

clear error. United States v. Bloomfield, 40 F.3d 910, 916, 918 (8th Cir. 1994) (en

banc), cert. denied, 514 U.S. 1113 (1995).

Hawkins’s argument assumes that the officers intended to forego a pat-down

search when Officer Nunn reached toward Hawkins’s pocket. But the record is not

so clear. Officer Nunn’s hand never reached Hawkins’s pocket, so what would have

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happened had Hawkins not fled is hypothetical. Consistent with Chief Nelson’s

testimony, the district court simply found that “the Chief told [Hawkins] that they

were going to search his pockets.” Hawkins’s argument also rests on the erroneous

legal premise that a pat down is the only permissible way to conduct a Terry frisk. 

A Terry search must be “reasonable” under the circumstances, see Terry, 392 U.S. at

29; “officers may take any measures that are reasonably necessary to protect their

personal safety and to maintain the status quo during the course of the stop.” United

States v. Newell, 596 F.3d 876, 879 (8th Cir.) (quotation omitted), cert. denied, 562

U.S. 864 (2010). Though a pat-down is often the least intrusive way to search for a

hidden firearm, concern for officer safetymay justify lifting clothing or even reaching

directly for a weapon in a waistband. See, e.g., Adams v. Williams, 407 U.S. 143,

144-48 (1972); United States v. Baker, 78 F.3d 135, 137-38 (4th Cir. 1996); United

States v. Hill, 545 F.2d 1191, 1193 (9th Cir. 1976) (per curiam).

Thus, the question is whether the officers’ threat to performa protective search,

when they had reasonable suspicion that Hawkins was armed and dangerous, coupled

with a reach, transformed the lawful Terry stop into a full-blown arrest. A “Terry

stop may become an arrest, requiring probable cause, if the stop lasts for an

unreasonably long time or if officers use unreasonable force.” Newell, 596 F.3d at

879 (quotation omitted). Here, the district court found that the detention was “fairly

brief” and lasted “only for the period of time necessary to resolve [Hawkins’s]

suspicious behavior.” Hawkins was not touched until he attempted to flee thislawful

detention. None of the usual indicators of a de facto arrest are present -- Hawkins

was not handcuffed, isolated, moved to a cop car, or humiliated in any way. See

Bloomfield, 40 F.3d at 917. 

Hawkins cites no case -- and we have found none -- ruling that a threat to

search and a reach transformed a Terry stop into an arrest. The three cases he relies

on all involved actual searches of the defendant, and none involved reasonable

suspicion that the suspect was armed. See Sibron v. New York, 392 U.S. 40, 62-63

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(1968); United States v. Aquino, 674 F.3d 918, 926-27 (8th Cir. 2012); United States

v. Casado, 303 F.3d 440 (2d Cir. 2002). In these circumstances, we decline to adopt

Hawkins’s proposed rule that a threat to perform a search constitutes a de facto arrest. 

We affirm the denial of his motion to suppress evidence seized in the first search.

II. The Second Search and Seizure.

After Hawkins was arrested on February 24, Officer McKinney orally warned

him that he could not trespass on LU grounds in the future. One month later, on

March 24, LU police officers, including Officers Nunn, McKinney, and Pigford,

responded to a report that Hawkins was again in the LU student cafeteria. Finding

Hawkins in the same seat he occupied a month earlier, the officers arrested Hawkins

for violating Missouri trespass law, Mo. Rev. Stat. § 569.140. A search incident to

the arrest uncovered a loaded handgun, the firearm charged in the second count of

conviction. Hawkins argues the firearm should be suppressed because he had no

valid prior notice that his mere presence on the LU campus would constitute criminal

trespass. 

The Missouri trespass statute provides:

1. A person commits the crime of trespass in the first degree if he

knowingly enters unlawfully or knowingly remains unlawfully in a

building or inhabitable structure or upon real property.

2. A person does not commit the crime of trespass in the first degree by

entering or remaining upon real property unless the real property is

fenced or otherwise enclosed . . . or as to which notice against trespass

is given by:

(1) Actual communication to the actor . . . 

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§ 569.140(1)-(2) (emphasis added). It is undisputed that Hawkins received an oral

no-trespass notice on February 24. Accordingly, the district court ruled that the

officers had probable cause to arrest Hawkins on March 24 for violating § 569.140,

and that the search incident to his arrest was valid. We review the district court’s

factual findings for clear error and its determination of probable cause de novo. See

Ornelas v. United States, 517 U.S. 690, 699 (1996). 

Consistent with the plain language of the statute, the Missouri Court of

Appeals held in State v. McCarthy, 715 S.W.2d 337, 337-38 (Mo. App. 1986), that

an oral warning not to trespass on Washington University’s campus was sufficient

evidence to sustain a § 569.140 conviction. But a published LU policy provided that

an oral no-trespass order expires after five days. Therefore, Hawkins argues, as he

did in the district court, the search incident to his arrest was invalid because “Mr.

Hawkins could not violate a no trespass order that, per written university policy,

ceased to be effective five days after it was issued.” 

This contention ignoresthe fact that the issue is whether the police officers had

probable cause to arrest Hawkinsfor violating § 569.140, not whether he would have

been convicted for violating the statute. Cf. Heien v. North Carolina, 135 S. Ct. 530,

536 (2014); Michigan v. DiFillippo, 443 U.S. 31, 37-38 (1979). When asked at the

suppression hearing about the policy (which neither counsel made part of the record

on appeal), Chief Nelson testified that he had been previously advised by the local

county prosecutor that an oral no-trespass order “is sufficient. It’s as good as a

written no trespass order. And so that’s the policy that we current[ly] follow.” 

Officer McKinney, one of the arresting officers, confirmed that testimony.

The criminal trespass statute required “[a]ctual communication” to Hawkins. 

The arresting officers knew that Hawkins had prior actual oral notice that he could

not lawfully enter or remain on the LU campus. The local prosecutor had advised the

LU police that oral notice is “as good as a written no trespass order” in enforcing the

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trespass statute on campus. When confronted, Hawkins, a non-student, did not object

that the LU five-day policy precluded his arrest. In these circumstances, we conclude

the district court did not err when it ruled that the officers had probable cause to arrest

Hawkins and to conduct a search incident to arrest that uncovered the firearm, and

therefore that Hawkins’s motion to suppress should be denied.

The judgment of the district court is affirmed.

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