United States Court of Appeals

for the Fifth Circuit

No. 21-50308

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opinion should not be published and is not precedent except under the limited 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.

United States Court of Appeals

Fifth Circuit

FILED

June 10, 2022

Lyle W. Cayce

Clerk

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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?

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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.

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