Fifth Circuit: Conviction Vacated Because No Reasonable Suspicion to Search Person in High-Crime Area
Raymond L. McKinney was standing with friends on a sidewalk near a gas station in San Antonio, Texas. It was about 9 p.m. on a mid-September night when Officers Holland and Carmona noticed the three men and a woman standing there and stopped their patrol car. Holland said while exiting the vehicle, “What’s up gentlemen? What’s going on today?” The woman started slowly walking away from the group but was ordered to return by Holland, and she complied.
After indicating he didn’t live in the area, McKinney was asked to consent to a pat search by Officer Carmona. He refused, but Carmona insisted he was just “patting [him] down,” not searching him, and proceeded to do so. He located a gun in McKinney’s waistband.
McKinney was arrested and later charged with being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1). He filed a motion to suppress the evidence as being the fruit of an unlawful search, but his motion was denied as the court ruled the officers had sufficient cause to stop and search him. He filed a guilty plea conditioned on his being able to file an appeal on the suppression issue. As the district court did not hold an evidentiary hearing on the motion, the Fifth Circuit relied on the police report, body-cam and patrol-cam footage, and the lower court’s order stating its reasoning.
The Court began its analysis by noting that “Officers may briefly detain individuals on the street, even though there is no probable cause to arrest them, if they have reasonable suspicion that criminal activity is afoot.” United States v. Michelletti, 13 F.3d 838 (5th Cir. 1994). “Individualized suspicion that someone being stopped for brief questioning is armed and dangerous must exist before the officer may conduct a pat-down,” remarked the Court (citing Maryland v. Buie, 494 U.S. 325 (1990)). Reasonable suspicion must exist before the initiation of an investigatory detention. United States v. Monsivais, 848 F.3d 353 (5th Cir. 2017).
Turning to the present case, the investigatory stop was initiated when Officer Holland ordered the woman to return to the group, because it was at that time “No reasonable person would have felt free to walk away,” said the Court. When an officer “accosts an individual and restrains their freedom to walk away, he has seized that person.” Terry v. Ohio, 392 U.S. 1 (1968).
The police report noted that area was known for gang violence, and a shooting had occurred at that gas station at 4:00 that morning. Officer Holland told the group, “if you are hanging out over here, you are going to get stopped, you are going to get checked. Especially if you are gang members.”
“The fact that the stop occurred in a ‘high crime area’ [is] among the relevant contextual considerations in a Terry analysis.” Illinois v. Wardlow, 528 U.S. 119 (2000). However, a person’s mere presence, absent some other link to a recent crime, “is not enough” to justify a stop. Id.
The police report stated, “the group was wearing red colors” and that the area was a “[B]loods gang location.” The Court’s review of the video evidence showed that, of the four group members, only McKinney was wearing an article of red clothing: his shorts. Again, this was insufficient to link the group to criminal activity. The Court said, “We cannot accept that there is reasonable suspicion for questioning everyone in a crime-ridden neighborhood wearing one article of clothing that is not an unusual color but happens also to be the color of choice for a gang.”
The officers also cited McKinney’s “jacket” as suspicious given the hot and humid weather.
However, the Court noted it was merely a windbreaker, and McKinney later stated it had rained lightly earlier in the day. Further, as it was a light jacket and McKinney did not act nervously, this case was dissimilar to other Fifth Circuit cases where a jacket provided reasonable suspicion, such as United States v. Sanders, 994 F.2d 200 (5th Cir. 1993) (where a trench coat which could conceal a weapon was sufficient).
The officers listed other reasons for justifying the search, but these were clearly post hoc reasons or insufficient on their face to justify the stop and search (such as McKinney’s refusal to consent to a search), according to the Court. Further, as there was insufficient cause for a stop, the officers could not meet the “more onerous” standard required for a pat-down, explained the Court. Monsivais.
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Related legal case
United States v. McKinney
|980 F.3d 485 (5th Cir. 2020)
|Court of Appeals
|Appeals Court Edition