CA5: RS for stop and frisk was lacking based on clothing and location

Defendant’s patdown on the street in San Antonio lacked reasonable suspicion that his clothing suggested gang activity or the place was high crime. The firearm found on him is suppressed. The body camera evidence was used by the defense. The clothing also could have been innocuous and have no relation to gang activity. United States v. McKinney, 2020 U.S. App. LEXIS 35956 (5th Cir. Nov. 16, 2020):

The court relied on its finding that McKinney, unlike the others, “was wearing a jacket and had a backpack on a hot September night.” The police report notes that McKinney was wearing a jacket. Our understanding from the briefing and from our review of the video is that the jacket was something like a “windbreaker,” which might not be suspicious if, as McKinney claimed, it had been lightly raining earlier. The Government insists

McKinney was “dressed oddly, given the warm night,” in clothes that could potentially conceal a weapon. In the body-camera footage, Officer Holland explained to McKinney that he was searched because he was “out here with a gun,” near a place that “just got shot up” while he was wearing “a jacket in the middle of the summer.” Although the officers might have been able to see that McKinney was wearing some sort of outerwear, we cannot discern on this record whether officers could have known before approaching the group how out-of-season McKinney’s jacket was.

We start with the obvious. The fact that McKinney did have a gun in his waistband is irrelevant to a determination of whether reasonable suspicion existed in order to initiate an investigatory detention. See Florida v. J.L., 529 U.S. 266, 271 (2000).

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.” United States v. Spears, 636 F. App’x 893, 904 (5th Cir. 2016). We agree with that assessment. There is no indication from the body-camera videos that the officers even saw the backpack before stopping the group. In the police report, the officers mentioned the weather and McKinney’s “floppy hat” but did not mention a backpack.

We consider the jacket, and how it appeared to the officers, to be the one piece of evidence that, when added to the rest of what we have discussed, might have created just enough suspicion to move beyond a mere hunch. Generally speaking, the concealing nature of a suspect’s clothing may support a stop or a search. In a traffic-stop case, we held that an officer had reasonable suspicion to prolong the stop based on extreme nervousness exhibited by the driver and passengers, inconsistent answers to his questions, the inability of the driver to provide basic information, and also that the driver was wearing baggy clothing. United States v. Henry, 372 F.3d 714, 715-16 (5th Cir. 2004). In another case, we held that an officer acted reasonably in immediately drawing his weapon when he confronted the suspect, in part because the suspect wore a long tan jacket that could hide a weapon. United States v. Sanders, 994 F.2d 200, 207 (5th Cir. 1993). The officer was responding to a call that a suspicious man was on a grocery store premises in a neighborhood known for violence and weapons. Id. at 201.

We have much less in the present case. The officers initiated the investigatory detention before observing nervousness or hearing any statements, much less inconsistent ones. There also was no report of a just-committed offense for which individuals in the immediate area might be seen as more likely involved.

We see some similarities to the facts that caused the Eighth Circuit to hold that officers did not have reasonable suspicion to stop and frisk an individual. That person was “wearing a long-sleeved hooded sweatshirt and clutching the front area of his hoodie pocket with his right hand.” United States v. Jones, 606 F.3d 964, 965 (8th Cir. 2010) (quotation marks omitted). The Government argued that reasonable suspicion existed based on the suspect’s: (1) holding his hand against his body, indicative of carrying a firearm; (2) walking in a high-crime neighborhood; (3) wearing a sweatshirt when it was 68 degrees and sunny, suggesting that he was “hiding something”; and (4) watching the officers in a concerned manner. Id. at 966. The suspect “did not panic or flee,” and the officers detained him “before he said anything suspicious or incriminating.” Id. The court held that the suspect’s behavior was innocent; walking in a high-crime area in a sweatshirt and watching a police vehicle pass were not reasonably suspicious. Id. at 967.

Similarly, 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.

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