Case: 21-50308 Document: 00516352756 Page: 1 Date Filed: 06/10/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
June 10, 2022
No. 21-50308 Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Raymond McKinney,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:18-CR-131-1
Before Clement, Graves, and Costa, Circuit Judges.
Per Curiam:*
Defendant-Appellant Raymond McKinney was charged with one
count of possession of a firearm after a felony conviction, in violation of 18
U.S.C. § 922(g)(1). He moved to suppress evidence of the firearm, which
was discovered during a pat-down search following a warrantless
investigatory stop. The district court denied the motion without a hearing,
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
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No. 21-50308
and McKinney entered a conditional guilty plea pursuant to a written plea
agreement, reserving the right to challenge the denial of his suppression
motion. He was sentenced to time served, which was around two years, and
three years’ supervised release. McKinney appealed the denial of his
suppression motion and we reversed, holding that that the evidence before
the district court—the officers’ body-camera footage, the police report, and
some photographs—did not indicate that the officers had reasonable
suspicion to detain McKinney for questioning. United States v. McKinney,
980 F.3d 485, 488-89 (5th Cir. 2020).
McKinney renewed his motion to suppress on remand. 1 The district
court held an evidentiary hearing at which the two arresting officers testified.
The district court again denied the suppression motion, holding that the
officers had reasonable suspicion to detain McKinney and probable cause to
frisk him. The district court reentered the judgment of conviction and
reinstated McKinney’s sentence. McKinney timely appealed.
On remand, the Government offered no evidence that could
materially alter our earlier analysis, even though we had described the type
of evidence that might support reasonable suspicion. McKinney, 980 F.3d
1
McKinney’s counsel suggested that proceeding with an evidentiary hearing
would be a “nullity” given that McKinney had already served his sentence, and asked the
district court to dismiss the charges against McKinney because “subtracting one conviction
from Mr. McKinney’s record does not materially [affect] his criminal history.” The
Government, however, contended that we had instructed the district court to hold an
evidentiary hearing. The district court then scheduled an evidentiary hearing, but gave
McKinney time to consider withdrawing his suppression motion. The district court then
stated:
I follow Judge [Lucius Desha] Bunton’s rule about Fifth Circuit opinions.
“They can reverse me if they want to, but they can’t make me read it,”
which I'm glad you all have read it. But I also -- if my recollection is correct,
none of those fine judges have ever tried a case or dealt with what we deal
with on the street. But, anyway, what do I know?
2
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No. 21-50308
at 493. To the contrary, the officers’ testimony confirms our previous
interpretation of the facts: they specifically confirmed that the body-camera
footage on which we previously relied reflected accurately what happened
that night. Moreover, they confirmed that they stopped McKinney based on
little more than the color of his clothing (while neglecting to stop or even
question others wearing the same color), his location in a high-crime area
(even though McKinney was carrying a grocery bag from the nearby food
mart), and his wearing a windbreaker (which the officers admitted on remand
was not particularly suspicious). In short, the officers’ testimony does
nothing to assuage our earlier concern that the officers stopped McKinney
based on nothing more than a hunch. Nonetheless, the district court entered
an order denying McKinney’s motion to suppress that mirrored almost
exactly its earlier order that we found wanting. Because the evidence
introduced on remand does nothing to undercut our earlier analysis finding
no reasonable suspicion to detain McKinney, we are bound to reverse the
district court’s denial of McKinney’s motion to suppress.
We therefore VACATE the district court’s order denying
McKinney’s motion to suppress, VACATE his conviction and sentence,
and REMAND the case to the district court for further proceedings.
3