Page 34 - Jan Feb TPA Journal

dangerous, based on the facts that McKinney was its broad terms, encompasses the search and seizure
wearing a jacket, backpack, and hat on that night, and conducted, and because Gallegos failed affirmatively
that his clothes were red. That evidence was to limit the scope of his broad consent, we reverse
insufficient to provide reasonable suspicion for the and vacate the district court’s suppression of evidence
stop and, consequently, could not support the more and remand for further proceedings not inconsistent
onerous requirements for a frisk. If additional with this opinion.
evidence is introduced on remand that more fully On September 19, 2017, DHS agents closed in on
explains what officers saw, that evidence can be Aleida Ruedo Espinal (Aleida), one of the primary
considered as to the suspicions both for the initial targets of an alien-smuggling investigation. When
stop and for the frisk. the agents arrested Aleida and searched her home, she
The district court also held that reasonable requested that her minor children be left in the
suspicion to frisk was supported by McKinney’s custody of her adult son, defendant Cristofer
refusal to consent to a pat-down and by the discovery Gallegos-Espinal. The agents quickly obliged.
of the gun. These facts, though, are irrelevant. For Gallegos was a secondary target in their alien-
one, a mere refusal to consent cannot support smuggling investigation, so Aleida’s request presented
suspicion. For another, the ultimate discovery of the an opportunity to look for evidence tying Gallegos to
gun cannot support the frisk because “[t]he his mother’s smuggling operation.
reasonableness of official suspicion must be measured When Gallegos arrived at the scene, about twenty
by what the officers knew before they conducted their law enforcement officers were there to greet him.
search.” Agents conducted a pat down for officer safety, and
then searched Gallegos’s vehicle for weapons. These
U.S. v. McKinney, No. 19-50801, 5 th Cir. Nov. initial searches did not uncover any weapons or other
contraband. Gallegos, however, was in possession of
th
16 , 2020.
a gray Samsung cell phone. No contraband having
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been found, Gallegos was permitted to enter his
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mother’s house, where he was introduced to Case
Agent Richard Newman. Agent Newman explained to
Gallegos that he had been called to the scene because
SEARCH & SEIZURE – CELL PHONE
his mother had requested that he take custody of his
SEARCH - CONSENT
younger siblings.
Agent Newman testified that when he first spoke
The Department of Homeland Security (DHS) to Gallegos his goal was to review Gallegos’s gray
suspected Cristofer Gallegos-Espinal (Gallegos) of
Samsung. He wanted to look for certain banking
participating in his mother’s alien-smuggling
information because he suspected that Gallegos was a
conspiracy. But when federal agents persuaded
“financial facilitator” in his mother’s alien-smuggling
Gallegos voluntarily to consent to a thorough search network. At the same time, he also wanted to make
of his iPhone, they discovered evidence of an sure not to tip Gallegos off to his suspicions. So, he
unrelated crime: possession of child pornography.
decided to “use an absurd example of why [he]
This discovery led to a threecount indictment
wanted to [see the] phone.” He suggested that,
charging Gallegos with sex offenses with a minor and
before Gallegos could take custody of a minor child,
destruction of evidence. In the pretrial proceedings he and the other agents would need to search
below, the district court suppressed three Gallegos’s vehicle a second time for “something
incriminating videos that the government discovered
illegal” and also “look through [Gallegos’s] phone to
in the course of an examination of extracted data
make sure [there was not] any child pornography on
from Gallegos’s iPhone. The court ruled that
it.” This “absurd example” brought on a chuckle from
Gallegos’s written consent to a “complete search” of Gallegos and a few of the agents in the vicinity,
the iPhone could not support a review of extracted apparently because Gallegos believed (and the agents
data three days after the phone was returned.
pretended to believe) that the search of the cell phone
Because Gallegos signed a consent form that, in

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