                        NOT RECOMMENDED FOR PUBLICATION
                               File Name: 15a0522n.06

                                         No. 14-3721

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                FILED
                                                                           Jul 23, 2015
UNITED STATES OF AMERICA,                        )
                                                 )                    DEBORAH S. HUNT, Clerk
        Plaintiff-Appellee,                      )
                                                 )   ON APPEAL FROM THE UNITED
v.                                               )   STATES DISTRICT COURT FOR THE
                                                 )
                                                     NORTHERN DISTRICT OF OHIO
KENNETH KEY,                                     )
                                                 )
        Defendant-Appellant.                     )   OPINION
                                                 )
                                                 )
                                                 )

       Before: GILMAN, COOK, and KETHLEDGE, Circuit Judges.

       RONALD LEE GILMAN, Circuit Judge. This is a classic “stop and frisk” case where

a pat-down search uncovered defendant Kenneth Key’s concealed handgun. The sole issue on

appeal is whether the district court erred in denying Key’s motion to suppress the evidence. For

the reasons set forth below, we AFFIRM the judgment of the district court.

                                     I. BACKGROUND

       The district court aptly summarized the underlying circumstances of this case as follows:

               On August 18, 2013, Youngstown Police Department Officer Marcin
       Stachowicz was on patrol on the north side of the City of Youngstown. At
       approximately 10:46 pm, Officer Stachowicz observed threes [sic] males walking
       in the street instead of the sidewalk. It is undisputed that walking in the street
       when a sidewalk is provided and its use is practicable is a violation of
       Youngstown Municipal Ordinance 371.05. While talking with the men, Officer
       Stachowicz smelled marijuana. He further noted that Key and another man were
       wearing winter coats on a hot summer night. Because the men were wearing
       heavy coats in the middle of summer, Officer Stachowicz believed they were
No. 14-3721, United States v. Key


       concealing weapons and was thus concerned for his safety, as he was alone with
       the men at night on a poorly lit street.

               Officer Stachowicz asked for the men’s identification and informed them
       that he was going to do an identity check via LEADS and a pat down search for
       weapons. Defendant Key stated “Oh, I have nothing on me and you can check me.
       I am good.” Officer Ryan Laatsch then arrived on the scene to assist Officer
       Stachowicz. Officer Laatsch observed Key whisper to his companion, and
       attempted to conduct a pat down for weapons. Key began to walk away from the
       Officers. Officer Laatsch ordered Key to stop and come back to him. Key
       continued to walk away with his hands at his waistband. At that time, Officer
       Laatsch pushed Key against his cruiser at which time Key informed him that he
       had a gun. Key was handcuffed and Officer Laatsch removed a loaded handgun
       from the left hand pocket of Key’s jacket. Key was arrested and charged with
       carrying a concealed weapon and weapons under disability.

              On November 13, 2013, Key was indicted on one count of Felon in
       Possession of a Firearm in violation of Title 18 USC [§§] 922(g)(1) and 924(a)(2).
       On January 13, 2014, he filed the [contested] motion to suppress. The
       Government responded and on February 10, 2014, a hearing was held on the
       matter and the motion was taken under advisement.

(R. 16 at 1-2)

       In March 2014, the district court issued an order denying Key’s motion to suppress.

(R. 16) It held that the officer had reasonable suspicion for the initial stop because Key was in

violation of a city ordinance, in addition to “the recent crime in the area and the description of

the suspects[,] along with what Officer Stachowicz observed, i.e., three men fitting the

description of the earlier crimes, wearing clothing that in his experience indicated an attempt to

conceal a weapon.” (Id. at 4) The court further held that the subsequent frisk was permissible

based on Key’s initial consent to the search, Key’s admission that he had a gun, and—if nothing

else—the officers’ reasonable concern for their safety due to the unseasonable attire of Key and

one of his companions. (Id. at 4-6)




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U.S. v. Key, No. 14-3721


       Shortly after the district court denied his motion to suppress, Key entered a conditional

guilty plea that specifically reserved his right to appeal the denial of that motion. The district

court sentenced him to 39 months in prison. This timely appeal followed.

                                          II. ANALYSIS

       The district court’s findings of fact are reviewed under the clear-error standard and its

conclusions of law are reviewed de novo. United States v. Jeter, 721 F.3d 746, 750 (6th Cir.

2013). When a district court denies a motion to suppress evidence, we consider the evidence in

the light most favorable to the government. United States v. Wellman, 185 F.3d 651, 654-55 (6th

Cir. 1999).

       There is no dispute that Key and his companions were walking down the middle of the

street on the night in question, and all parties agree that such conduct was in violation of a

Youngstown city ordinance. Officers who watch someone violate a law have, at a minimum,

reasonable suspicion to conduct an investigatory stop. Bennett v. City of Eastpointe, 410 F.3d

810, 832 (6th Cir. 2005) (holding that when a defendant’s conduct indisputably amounts to a

violation of state law, it provides reasonable suspicion for an initial stop). Moreover, Key

conceded at the hearing on his motion to suppress that “[he didn’t] have any problem with the

initial stop and interview.” (R. 35 at 30)      His argument for suppression thus hinges on the

propriety of the ensuing frisk.

       A valid stop does not necessarily grant an officer the authority to perform a pat-down

search. Bennett, 410 F.3d at 822. In order to frisk an individual who has been detained, an

officer “must reasonably suspect that the person stopped is armed and dangerous.” Arizona

v. Johnson, 555 U.S. 323, 326-27 (2009). “The officer need not be absolutely certain that the

individual is armed; the issue is whether a reasonably prudent man in the circumstances would


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No. 14-3721, United States v. Key


be warranted in the belief that his safety or that of others was in danger.” Terry v. Ohio,

392 U.S. 1, 27 (1968).

        If the officer had frisked Key immediately after declaring his intention to do so, Key’s

argument might have merit. Officer Stachowicz admitted that when he first approached Key and

his companions, “there were no furtive movements. We were all comfortable talking to each

other.” (R. 35 at 18) This rare admission saves us from having to guess at the officer’s state of

mind in the moments before the frisk. His testimony belies any argument that the government

might have offered about Officer Stachowicz’s decision to frisk stemming from concerns for his

safety. Subsequent conduct aside, the officer conceded that he was not concerned when Key was

initially detained.

        But several key events transpired before Officer Stachowicz could effectuate a frisk.

First, Key consented to be searched, claiming “I have nothing on me and you can check me. I am

good.” (R. 16 at 2) Key then apparently changed his mind and tried to walk away from the

officers, with his hands at his waistband. (Id.) He did not respond when the officers told him to

come back, and when they finally detained Key again, he admitted to having a gun before he was

frisked. (Id.)

        Any one of these events—consent, evasive and furtive movements, failure to respond in

the face of an order, or the admission—would presumably have been sufficient to justify a frisk

when considered in conjunction with the recent string of robberies and burglaries in the area and

Key’s unseasonably heavy attire. See United States v. Carter, 378 F.3d 584, 587 (6th Cir. 2004)

(“It is well-settled that a person may waive his Fourth Amendment rights by consenting to a

search.”); Illinois v. Wardlow, 528 U.S. 119, 124 (2000) (“Our cases have also recognized that

nervous, evasive behavior is a pertinent factor in determining reasonable suspicion.”); Jeter,


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U.S. v. Key, No. 14-3721


721 F.3d at 755 (holding that an individual’s failure to respond to an officer’s approach, coupled

with his subsequent flight, gave officers reasonable suspicion to conduct a frisk).         Their

cumulative effect is more than sufficient to meet the requisite standard.

                                      III. CONCLUSION

       For all of the reasons set forth above, we AFFIRM the judgment of the district court.




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