United States v. McKinney

980 F.3d 485

UNITED STATES of America, Plaintiff—Appellee,

v.Raymond MCKINNEY, also known as Ray Lee McKinney, also known as Ray L. McKinney, also known as Raymond L. McKinney, also known as Scott Eaven, also known as Scott Lee, also known as Raymond Lee McKinney, also known as Ray Green, Defendant—Appellant.

No. 19-50801

United States Court of Appeals, Fifth Circuit.

FILED November 16, 2020

Joseph H. Gay, Jr., Margaret Mary Embry, Assistant U.S. Attorneys, U.S. Attorney's Office, Western District of Texas, San Antonio, TX, for Plaintiff-Appellee.

Kristin L. Davidson, Assistant Federal Public Defender, Maureen Scott Franco, Federal Public Defender, Federal Public Defender's Office, Western District of Texas, San Antonio, TX, for Defendant-Appellant.

Before Owen, Chief Judge, and Davis and Southwick, Circuit Judges.

Leslie H. Southwick, Circuit Judge:

Raymond McKinney entered a conditional guilty plea to the charge of being a felon in possession of a firearm. He reserved the right to challenge on appeal the denial of his motion to suppress evidence of the discovery of the firearm by an officer patting him down prior to questioning. McKinney was detained for questioning while standing on a sidewalk with others near a business that in recent days had been the location of multiple gang-related shootings. We conclude that the evidence before the district court did not support that officers had reasonable suspicion to detain McKinney for questioning. We REVERSE the judgment of conviction and the sentence, which were based on the conditional guilty plea, and REMAND for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

In mid-September 2017, at about 9:00 p.m., McKinney and three other individuals were on a sidewalk near a gas station in San Antonio, Texas. That station had in recent days been the location of drive-by shootings, one as recent as 4:00 a.m. that day. Two officers approached, frisked the three men in the group, and discovered a gun on McKinney. He was charged with being a felon in possession of a firearm. See 18 U.S.C. § 922(g)(1).

In a motion to suppress evidence of the gun, McKinney argued that the officers lacked reasonable suspicion both for the initial stop and for the later frisk. McKinney used the officers’ body-camera videos and the police report as his supporting evidence. The Government filed a response in opposition, attaching still shots of the video as well as news articles reporting the recent shootings in the area. Without holding a hearing, the district court denied the motion in summary fashion. It later issued a second order explaining its reasoning for the denial.

Without an evidentiary hearing, we do not have the benefit of testimony from the officers. Neither party submitted any affidavits. Instead, the body-camera videos, videos from the police SUV cameras, and the police report constitute the evidence.

Around ten o'clock on the night of the arrest, San Antonio officers Holland and Carmona were on patrol in an unmarked police SUV near the gas station that had been the location of recent drive-by shootings. The officers turned out of the gas station and, within seconds, pulled up to McKinney and three others standing on the sidewalk. The group consisted of McKinney, two men, and a woman. Officer Holland jumped out of the passenger seat and said, "What's up gentlemen? What's going on today?" As he approached the group, he shined his light on the woman, who appeared to be slowly walking away from the group, then ordered her to come back. She complied. Officer Holland immediately frisked the two other men.

At this point, Officer Carmona exited the SUV and focused his attention on McKinney, who was standing with his illuminated phone in one hand, a bottle of Minute Maid in the other, and a backpack on his back. Officer Carmona asked if he lived nearby, and McKinney responded, "No, Sir." Officer Carmona asked if he had any guns on him, and McKinney said that he did not. Officer Carmona asked to "pat [McKinney] down real quick [to make sure he did not have] any guns." McKinney declined to consent to a search. Officer Carmona said that he was not "searching" him, just "patting [him] down." By now, Officer Carmona was holding McKinney. He patted McKinney down and found a gun in his waistband. McKinney was then handcuffed.

In the minutes that followed, the officers made several statements explaining their reasons for initiating the investigatory detention and conducting the pat-downs. When McKinney asked why he was "searched," Officer Holland responded that it was because McKinney was "out here with a gun," near "a place that [was] shot up the other day," and that he was "hanging out over here in a jacket in the middle of the summer." Officer Carmona later told McKinney he was frisked because he was in an area known for shootings even though he did not live there. Officer Carmona added: "You want to know what my reasonable suspicion is? That there's been three or four shootings here in the last day and a half." Later, Officer Holland warned the others in the group: "[If] [y]ou are hanging out over here, you are going to get stopped, you are going to get checked. Especially if you are gang members."

Two of the Government's arguments are that the clothing worn by McKinney and others supports a reasonable suspicion of criminal gang activity. The body-camera videos show that McKinney was wearing a black Nike windbreaker, a black bucket hat accented with the colors of the Jamaican flag, and red shorts. He also had a light-colored backpack. The woman wore a pink shirt with a pink bow in her hair.¹ One of the men wore a white shirt, white hat, and khaki pants. The other wore a white shirt and dark pants, but it is unclear whether the pants were red or another color.

The police report, created by Officer Holland, states that the officers observed "gang members hanging out" near the gas station. It asserts that "[t]he group was wearing red colors," though in fact only McKinney had red clothing, and that McKinney was wearing a jacket and hat even though "[i]t was quite warm and humid out." The report also states that when one of the men saw the officers, he "turned and appeared to drop something very small." Finally, it claims that the officers approached the group and frisked the men "due to the area being a [B]loods gang location and all of [the] [recent] shooting[s] at this location."

McKinney moved to suppress the evidence of the firearm. The district court entered a summary denial in September 2018. In April 2019, the court entered a second, detailed order on the motion. The court held that the officers’ actions were justified. To conclude there was reasonable suspicion for the stop, the court relied on the following: (1) recent gang violence in the area; (2) the red, gang-related clothing; (3) McKinney's wearing a jacket and backpack on a hot summer night; (4) the woman's exhibiting evasive behavior by trying to "distance herself"; and (5) Officer Holland's observation that "one of the individuals drop[ped] something very small" in a "quick hand motion indicative of someone getting rid of evidence, usually narcotics." The court "infer[red]" that the officers were "seasoned" and "trained."

The district court also concluded that the officers had reasonable suspicion to frisk McKinney, i.e. , that he was armed and dangerous. For support, the court pointed out, again, his wearing a jacket and backpack on a hot night. The court also noted that the red shorts were a "gang color." The court also contended that McKinney's refusal to consent to a pat-down supported reasonable suspicion to do so without consent. Additionally, the court found that the ultimate discovery of the gun possessed by someone wearing gang colors supported a reasonable suspicion to conduct the frisk.

Based on these findings, the district court denied the motion to suppress. McKinney entered a conditional guilty plea but reserved the right to challenge the denial of his motion to suppress. This appeal followed.

DISCUSSION

Warrantless searches and seizures are presumptively unreasonable, subject to certain exceptions. United States v. Hill , 752 F.3d 1029, 1033 (5th Cir. 2014). One exception provides that "officers may briefly detain individuals on the street, even though there is no probable cause to arrest them, if they have a reasonable suspicion that criminal activity is afoot." United States v. Michelletti , 13 F.3d 838, 840 (5th Cir. 1994) (en banc ) (discussing Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ). Similarly, reasonable, individualized suspicion that someone being stopped for brief questioning is armed and dangerous must exist before the officer may conduct a pat-down. Maryland v. Buie , 494 U.S. 325, 334 n.2, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990).

A seizure must be "justified at its inception." Hiibel v. Sixth Jud. Dist. Ct. , 542 U.S. 177, 185, 124 S.Ct. 2451, 159 L.Ed.2d 292 (2004). Reasonable suspicion must exist before the initiation of an investigatory detention. United States v. Monsivais , 848 F.3d 353, 359 (5th Cir. 2017). Reasonable suspicion exists if the officer can "point to specific and articulable facts that lead him to reasonably suspect that a particular person is committing, or is about to commit, a crime." Hill , 752 F.3d at 1033. It cannot be unparticularized or founded on a mere hunch.

United States v. Jaquez , 421 F.3d 338, 341 (5th Cir. 2005). Instead, "a minimal level of objective justification" is required. Id. Observations capable of innocent explanation when considered alone might rise to the level of reasonable suspicion in the aggregate. United States v. Arvizu , 534 U.S. 266, 277–78, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002). Likewise, an officer can have a reasonable suspicion without ruling out every innocent explanation. Id. at 277, 122 S.Ct. 744. We account for the totality of the circumstances in determining whether there was a " ‘particularized and objective basis’ for...