While reversing on other grounds, the Fifth Circuit directs reconsideration of the stop and frisk as lacking reasonable suspicion on the record it had for lack of a hearing. United States v. McKinney, 2020 U.S. App. LEXIS 36333 (5th Cir. Nov. 16, 2020):
Because we remand for further proceedings, we will discuss the legality of the frisk as well. Even if the officers had reasonable suspicion to initiate the stop, the pat-down needs its own justification. The Supreme Court has explained that in Terry v. Ohio, “the Court considered whether an investigatory stop (temporary detention) and frisk (patdown for weapons) may be conducted without violating the Fourth Amendment’s ban on unreasonable searches and seizures.” Arizona v. Johnson, 555 U.S. 323, 326 (2009). Certainly, the investigatory stop itself must be lawful. Id. We have discussed the uncertainties in the record on that issue and have remanded. Next, even if an officer is justified in making a brief investigatory stop, “to proceed from a stop to a frisk, the police officer must reasonably suspect that the person stopped is armed and dangerous.” Id. at 326-27. We have described the standard for justifying a pat-down as being “more onerous” than that for the initial stop. Monsivais, 848 F.3d at 357 n.1.
The district court concluded that the officers had reasonable suspicion that McKinney was armed and dangerous, based on the facts that McKinney was wearing a jacket, backpack, and hat on that night, and that his clothes were red. That evidence was insufficient to provide reasonable suspicion for the stop and, consequently, could not support the more onerous requirements for a frisk. If additional evidence is introduced on remand that more fully explains what officers saw, that evidence can be considered as to the suspicions both for the initial stop and for the frisk.
The district court also held that reasonable suspicion to frisk was supported by McKinney’s refusal to consent to a pat-down and by the discovery of the gun. These facts, though, are irrelevant. For one, a mere refusal to consent cannot support suspicion. United States v. Machuca-Barrera, 261 F.3d 425, 435 n.32 (5th Cir. 2001). For another, the ultimate discovery of the gun cannot support the frisk because “[t]he reasonableness of official suspicion must be measured by what the officers knew before they conducted their search.” J.L., 529 U.S. at 271 (emphasis added).
This appeal is from a conviction and sentence based on a conditional guilty plea. The condition was the validity of the denial of the suppression motion. The condition fails, and therefore so does the guilty plea. That does not mean McKinney is acquitted, only that the judgment based on his guilty plea must be vacated.
On remand, the case can proceed as the district court directs. Should the Government seek to have the suppression motion reconsidered, an evidentiary hearing would be useful. A somewhat similar situation arose in a case in which the district court denied a motion to suppress evidence based on the good faith of an officer for stopping the defendant’s vehicle for a traffic offense, and we reversed because the record did not contain evidence of a necessary fact for the existence of the offense. United States v. Cole, 444 F.3d 688, 690 (5th Cir. 2006) (deciding whether the traffic stop was properly made required evidence of whether there was a crosswalk). We vacated the denial of the motion to suppress evidence of drugs found in the defendant’s vehicle after the traffic stop and remanded for additional fact findings as to whether the factual predicate for the offense existed. Id.; see also United States v. Rogers, 481 F. App’x 157, 159-60 (5th Cir. 2012) (finding the record to be inadequate to uphold a search and holding that it was error not to conduct an evidentiary hearing on the motion to suppress and therefore remanding).
Similarly, the record before us is insufficient to determine whether the officers had reasonable suspicion. The body-camera videos and police report do not sufficiently explain the events leading up to the initiation of the investigatory detention.