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.
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)