Evidence did not show that police patrolling an area of San Antonio, Texas, where a series of gang related drive-by shootings recently occurred, had a reasonable suspicion to stop a group of people standing on the sidewalk, the Fifth Circuit held.
"McKinney was detained for questioning while standing on a sidewalk with others near a business that in recent days had been the location of multiple gang-related shootings." Nevertheless, the Circuit reversed the district court's finding and concluded that the evidence before the district court did not support that officers had reasonable suspicion to detain McKinney for questioning.
An arguments offered by the government was that the clothing worn by McKinney and others supports a reasonable suspicion of criminal gang activity. The district court refused to suppress the gun because of recent gang violence in the area; McKinney had on red shorts, which is the color of the Bloods gang; McKinney was wearing a backpack and windbreaker on a warm summer night; a woman in the group started to walk away; and a man dropped something small as the officers approached. But nothing observed by police connected McKinney or anyone in the group the to the recent shootings, the Circuit found. The very common occurrence of wearing a backpack ia not material, the Circuit found. As for McKinney’s shorts, the Circuit said nobody else in the group was wearing red, which suggested randomness in his wardrobe choice.
The gun found in Raymond McKinney’s waistband should therefore have been suppressed, and his conditional guilty plea to being a felon in possession of a firearm must be vacated.