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The Honorable Michael J. Melloy, Chief Judge, United States

District Court for the Northern District of Iowa.

___________

No. 95-1870

___________

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capacity as an officer of the * [UNPUBLISHED]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. *

___________

 Submitted: January 30, 1996

 Filed: February 27, 1996 ___________

Before BEAM, LOKEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges. ___________

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
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We also see no error in the district court's additional

finding that Weaver suffered only nominal damages.

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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.
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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.