Legal Stop or Not? 5th Circuit Sides with McKinney

Two officers frisked a group of men in front of a San Antonio shop – the target of recent drive-by shootings. They found a gun one one member of the group: McKinney. Soon after, he receive a charge of being a felon in possession of a firearm.  But was the pat-down a legal stop? Did the officers have reasonable suspicion to perform it? The 5th circuit decided not.

McKinney filed a motion to suppress stating that the officers lacked reason for the stop and the frisk.  McKinney used the officer’s body cam videos and the police report as his evidence.  The government filed a response. It cited still shots of the video and news articles of the recent shootings in the area.  The court denied the motion without a hearing.  

The court summarized the evidence this way: Patrolling officers in an unmarked vehicle saw three people near the gas station.  The officers pulled up on them and asked them “What’s going on today?” An officer shone his light on a woman who attempted to walk away slowly. He ordered her to come back.  She complied.  

“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”. The offense report attests to warm and humid weather.  Another portion of the reports stated that a person “turned and appeared to drop something very small.”

The officer asked McKinney if he had any guns on him. He then sought permission to pat him down.  McKinney declined.  The officer said that he was not “searching” him, just “patting him down”. Holding McKinney by this time, the officer found a gun in his waistband. 

Giving reason for the legality of the stop, the officers cited McKinney’s presence “out here with a gun,” near “a place that [was] shot up the other day.”  Later, one officer said “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.” The other officer said ““[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.”

The Denial of the Motion to Suppress

In denying the motion to suppress 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 also agreed that there was reasonable suspicion to frisk McKinney; it was a legal stop. “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 constituted 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.

McKinney entered a conditional plea but reserved the right to challenge the denial of the motion to suppress.  

“Reasonable suspicion must exist before the initiation of an investigatory detention. 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.” … It cannot be unparticularized or founded on a mere hunch… Instead, “a minimal level of objective justification” is required…Likewise, an officer can have a reasonable suspicion without ruling out every innocent explanation…We account for the totality of the circumstances in determining whether there was a “ ‘particularized and objective basis’ for suspecting legal wrongdoing.”

The Appeal

On appeal, the parties stipulated that the officers seized McKinney. The frisk was not a legal stop.  As a result, “the issue in this case is whether the officers had reasonable suspicion based on their observations at the time they ordered the woman to stop…To determine whether reasonable suspicion existed at the initiation of the investigatory detention, we evaluate each fact identified by the district court as supporting a reasonable suspicion to initiate the investigatory detention. Our conclusion, though, depends on the combination of facts.”

Accusations of “Gang Violence” as a Factor

First, the court looked at “gang violence” as a factor in the legality of the stop.  The court noted that “presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime”. The court held that “A small group being on a sidewalk was not itself evidence of anything suspicious. Later, officers learned that none of those in the group lived in the immediate area, but there was no evidence officers knew that when the stop was made. Nothing observed by the officers connected McKinney or anyone else standing on the sidewalk to the recent and nearby shootings that had been made from passing vehicles.”  

Additionally, he court looked at the red clothing that supposedly indicated gang activity.  The police report indicated that the group wore red colors in a “bloods gang location.” However, the court noted that the video they observed “indicate[d] that the only person wearing red clothing was McKinney, whose shorts were red. The district court found that the woman wore a ‘big red sparkly bow,’ described as “more evidence of the red gang color.’ Her bow, though, was pink, and matched her pink shirt.”  

The court went on to note that “[o]ur concern with these first two factors — high-crime area and gang colors — is that as far as the record demonstrates, this high-crime area was residential and, presumably, people other than gang members lived there. 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.”

Other Factors for “Reasonable Suspicion”

Further, the court considered the backpack as well.  “As to the backpack, a panel of the court once stated that ‘the very common occurrence of having a backpack in a vehicle and the multitude of innocent uses for a backpack in a vehicle render[ed] the presence of a backpack in [the suspect’s] vehicle of little persuasive value'”.  The court also noted that the videos don’t indicate that the officers saw the backpack before the stop.  Even the jacket was not enough per their prior caselaw. The “officers initiated the investigatory detention before observing nervousness or hearing any statements, much less inconsistent ones[]”. Further, no reports indicated a just-committed crime in the area that would justify a legal stop.  Nothing else in the record helped the officers determine if the jacket led to reasonable suspicion.  

The court also considered that the woman in the group walked away before the officers called her back.  The court said the analysis did not find this probative because she returned back when ordered to. Evidence also fails to suggest that her conduct caused the officers to fear for their safety.  Moreover, the woman who ran away was different from McKinney and her conduct shouldn’t contribute to the case against McKinney.

Finally, the court considered the officer observing someone dropping something very small.  The court stated that, this record lacked sufficient information to distinguish mere littering from a more serious crime.

Conclusion

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