Take the Fifth

Designated for publication

• U.S. v. McKinney, 19-50801, appel from W.D. Tex.
  • Southwick, J. (Owen, Davis, Southwick), criminal, search and seizure
  • Vacating conviction and sentence based on conditional guilty plea to being a felon in possession of a firearm, holding that district court erred in denying motion to suppress evidence of discovery of firearm by an officer patting defendant down prior to questioning, and remanding for further proceedings.
  • The district court had denied defendant’s motion to suppress evidence of the discovery of the gun, finding that the arresting officers had reasonable suspicion to stop defendant and then to search him because (1) he was wearing a jacket and a backpack on a warm night; (2) he and the group he was with were hanging out near a scene that had endured multiple drive-by shootings in the previous days; (3) he was wearing red shorts, which the court contended were indicative of gang colors; (4) his refusal to consent to a pat-down was suspicious behavior; and (5) the ultimate discovery of the gun by someone wearing gang colors supported the reasonableness of the search.
  • The Court started from the baseline premise that warrantless searches are presumptively unreasonable, subject to limited exceptions, including when an officer has reasonable suspicion to briefly detain someone and reasonable, individualized suspicion to conduct brief questioning and a pat-down. “Reasonable suspicion must exist before the initiation of an investigatory detention.”
  • In this matter, there was no evidentiary hearing, so the Court applied no deference to the district court’s factual findings, reviewing the same materials in the record as the district court did (body camera footage, still photos from the footage, the police report, and news coverage of the prior drive-by shootings in the neighborhood).
  • The Court held that the mere presence of the group of individuals in a high-crime area was not by itself enough to support a reasonable suspicion justifying the initial detention of the group. The Court also rejected the contention that the wearing of gang colors provided the requisite reasonable suspicion, since only one member of the group was wearing one item of clothing that was red. “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 Court also held that there was no evidence to support that the officers had been able at the inception of the detention of the group to determine how out of season (or not) the defendant’s outerwear was (defendant claimed it was a light windbreaker and that it had been raining earlier in the day). As for the backpack, the Court held that the presence of something as innocuous and common as a backpack was “of little persuasive value” with regard to reasonable suspicion.
  • “McKinney did not panic or flee; there were no suspicious statements; and there were no suspicious, concerned looks emanating from those whom the police ended up stopping. Thus, we are back to the jacket. Could police reasonably believe it was so out-of-season in appearance, with whatever lighting existed as the stop was occurring, to be suspicious? Or did it instead appear to be a light jacket useful for nothing more than keeping off rain. and such rain had been occurring? The current record does not allow us to determine.”
  • The Court also held that the slow walk away from the group of a woman who was with them, who then immediately complied when one of the officers asked her to return, was (1) not indicative of suspicious or even nervous behavior, and (2) regardless, was not behavior that could be attributed to the defendant. As to a mention in the police report that one of the individuals had been observed throwing something down, the Court held that this should be evaluated at an evidentiary hearing, which the district court did not conduct here.
  • The Court therefore held that there was not sufficient evidence to support that there was a reasonable suspicion to detain the group in the first place. For purposes of the remand review, the Court also noted that there was not sufficient evidence to support the separate action of frisking the defendant, adding to its analysis of the other factors that the mere refusal to consent to a pat-down does not create reasonable suspicion to justify conducting that pat-down anyway.

Unpublished

• Clyce v. Farley, 18-11189, appeal from N.D. Tex.
  • Graves, J. (Graves, Costa, Engelhardt), retaliation, excessive force, cruel and unusual punishment, res judicata
  • Reversing district court’s res judicata-based dismissal of suit for abuse and injuries received at juvenile detention facility, and remanding for further proceedings.

• Leo v. Jeld-Wen, Inc., 19-30761, appeal from M.D. La.
  • per curiam (Barksdale, Elrod, Ho), sufficiency of evidence, breach of warranty, redhibition, attorneys fees
  • Affirming judgment based on jury verdict finding that redhibition claim had prescribed, calculation of damages for breach of warranty claim, and denial of attorneys’ fees.

• U.S. v. Miles, 19-50466, appeal from W.D. Tex.
  • per curiam (Barksdale, Graves, Oldham), criminal, sentencing
  • Affirming conviction for kidnapping, transportation of a minor with intent to engage in criminal sexual activity, and travel with intent to engage in illicit sexual conduct, and sentence of life in prison.

• U.S. v. Manriquez-Sanchez, 20-40395, appeal from E.D. Tex.
  • per curiam (Jones, Clement, Haynes), criminal
  • Granting Anders motion to withdraw and dismissing appeal.

• U.S. v. Jackson, 20-50088, appeal from W.D. Tex.
  • per curiam (Higginbotham, Jones, Costa), criminal, sentencing, First Step Act
  • Granting motion for summary affirmance of denial of motion for sentence reduction.