Page 28 - Jan Feb TPA Journal

contends that the vast majority of the traffic along That station had in recent days been the location of
Interstate 10 is for innocent purposes. Second, he drive-by shootings, one as recent as 4:00 a.m. that
asserts that nothing specific about his behavior or the day. Two officers approached, frisked the three men
vehicle could supply reasonable suspicion. The first in the group, and discovered a gun on McKinney. He
argument disregards the fact that the reasonable was charged with being a felon in possession of a
suspicion analysis considers the combination of firearm.
factors leading to an investigatory stop. We have In a motion to suppress evidence of the gun,
previously opined that “the possibility that [a McKinney argued that the officers lacked reasonable
defendant] could have been an innocent traveler” suspicion both for the initial stop and for the later
does not negate other factors supporting reasonable frisk. McKinney used the officers’ body-camera
suspicion. Here, Agent Pinon had ample reason to videos and the police report as his supporting
suspect that Zamora was not merely an innocent evidence. The Government filed a response in
traveler. The second argument likewise fails because opposition, attaching still shots of the video as well as
Agent Pinon testified to specific reasons that a white news articles reporting the recent shootings in the
pickup truck and Zamora’s pattern of behavior were area. Without holding a hearing, the district court
significant to him. denied the motion in summary fashion. It later issued
Under the totality of the circumstances, a second order explaining its reasoning for the denial.
considered in connection with the Brignoni–Ponce Without an evidentiary hearing, we do not have
factors, we conclude that Agent Pinon had reasonable the benefit of testimony from the officers. Neither
suspicion to stop Zamora’s truck. party submitted any affidavits. Instead, the body-
camera videos, videos from the police SUV cameras,
U.S. v. Zamora, unpublished, No. 19-50668, 5 th and the police report constitute the evidence.
rd
Cir. July 23 , 2020. Around ten o’clock on the night of the arrest, San
Antonio officers Holland and Carmona were on patrol
in an unmarked police SUV near the gas station that
**************************************** had been the location of recent drive-by shootings.
********************************* The officers turned out of the gas station and, within
REASONABLE SUSPICION – STOP &
seconds, pulled up to McKinney and three others
FRISK
standing on the sidewalk. The group consisted of
McKinney, two men, and a woman. Officer Holland
Raymond McKinney entered a conditional guilty jumped out of the passenger seat and said, “What’s up
plea to the charge of being a felon in possession of a gentlemen? What’s going on today?”
firearm. He reserved the right to challenge on appeal
As he approached the group, he shined his light
the denial of his motion to suppress evidence of the
on the woman, who appeared to be slowly walking
discovery of the firearm by an officer patting him
away from the group, then ordered her to come back.
down prior to questioning. McKinney was detained She complied. Officer Holland immediately frisked
for questioning while standing on a sidewalk with the two other men.
others near a business that in recent days had been the
location of multiple gang-related shootings. We
At this point, Officer Carmona exited the SUV
conclude that the evidence before the district court
and focused his attention on McKinney, who was
did not support that officers had reasonable suspicion standing with his illuminated phone in one hand, a
to detain McKinney forquestioning. We REVERSE bottle of Minute Maid in the other, and a backpack on
the judgment of conviction and the sentence, which
his back. Officer Carmona asked if he lived nearby,
were based on the conditional guilty plea, and
and McKinney responded, “No, Sir.” Officer
REMAND for further proceedings.
Carmona asked if he had any guns on him, and
McKinney said that he did not. Officer Carmona
In mid-September 2017, at about 9:00 p.m., asked to “pat [McKinney] down real quick
McKinney and three other individuals were on a
[to make sure he did not have] any guns.” McKinney
sidewalk near a gas station in San Antonio, Texas.
declined to consent to a search. Officer Carmona said

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