Com. v. Keys, R. ( 2023 )

J-S20022-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ROBERT KEYS :
:
Appellant : No. 2446 EDA 2022
Appeal from the Judgment of Sentence Entered September 23, 2022,
in the Court of Common Pleas of Philadelphia County,
Criminal Division at No(s): CP-51-CR-0000118-2021.
BEFORE: DUBOW, J., KUNSELMAN, J., and COLINS, J.*
MEMORANDUM BY KUNSELMAN, J.: FILED JUNE 26, 2023
Robert Keys appeals from the judgment of sentence imposed after his
non-jury conviction for violations of the Uniform Firearms Act.1 He challenges
the denial of his motion to suppress evidence. We affirm.
On September 23, 2020, Keys was arrested and charged with the above
crimes after police found a gun in his waistband. He moved to suppress the
gun; the suppression court heard Keys’ motion on May 4, 2022. The
Commonwealth presented the testimony of Officers Christopher Rycek and
Marc Kusowski. The court summarized its factual findings:
On September 23, 2020, at approximately 11:56 a.m.,
uniformed Philadelphia Police Officers Rycek, Lane, and Kusowski
were on patrol in the City’s 25th Police District. Traveling
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 6105(a)(1), 6106(a)(1), and 6108.
J-S20022-23
eastbound on Clearfield Street in a marked police cruiser,
approaching the intersection of C Street, Officer Rycek noticed
[Keys] walking westbound towards them on Clearfield. Officer
Rycek observed [Keys] glance at their cruiser and subsequently
adjust an object tucked in his front waistband. Officer Rycek then
alerted his partner, Officer Kusowski, that [Keys] had just
adjusted what he believed to be a firearm in his front waistband.
As the patrol car drew level with [Keys], Officer Rycek, who
was driving, braked and rolled down the front passenger window.
He called out to [Keys], asking whether he was carrying a gun.
[Keys] said no and continued walking westward, quickening his
pace slightly. Officer Kusowski then exited the cruiser and
approached [Keys] on foot, asking him again whether he was
carrying a gun. As Officer Kusowski spoke, [Keys] turned his body
approximately 45 degrees to the left and stood with his arms
roughly akimbo [blocking his waist]. Moments later, [Keys]
stepped backwards, at which point Officer Kusowski physically
restrained him from further retreating.
Convinced that [Keys] was concealing a gun in his
waistband—and afraid that he may try to draw it—Officer
Kusowski grabbed at [Keys’] front waistband and recovered a
Smith and Wesson nine-millimeter handgun. Officer Kusowski
subsequently detained [Keys] on suspicion of firearms violations.
While detained, [Keys] admitted that he did not have a license to
conceal carry. Upon running the firearm’s serial numbers, the
officers confirmed that [Keys] did not possess a concealed carry
permit and that the gun was stolen. The officers arrested [Keys]
for firearms violations.
Suppression Court Opinion, 12/14/22, at 1–2 (record citations omitted).
The court denied suppression. The case immediately proceeded to a
non-jury trial based on the non-hearsay evidence from the suppression
hearing. Keys was convicted on all counts. On September 23, 2022, the court
sentenced Keys to 11½ to 23 months of imprisonment followed by 3 years of
probation. Keys timely appealed. Keys and the suppression court complied
with Pennsylvania Rule of Appellate Procedure 1925.
-2-
J-S20022-23
Keys presents two questions for our review:
1. Did the trial court err by denying the Motion to Suppress where
the police lacked reasonable suspicion to detain or frisk Keys?
2. Did the trial court err by denying the Motion to Suppress where
the police lacked probable cause to search Keys?
Keys’ Brief at 4.
Keys argues that he was subjected to an investigative detention when
Officer Kusowski physically restrained him from walking away and then
grabbed at his waistband. Id. at 10. He contends that the surrounding
circumstances did not provide reasonable suspicion: Officer Rycek was unsure
if Keys had a firearm, law-abiding citizens are often nervous in a police
encounter, and Keys had his arms up because he had objects in his hands.
Id. at 11–12. Keys notes that possession of a concealed firearm alone does
not provide reasonable suspicion to detain an individual and check whether he
is licensed to carry it. Id. at 12–13.
Keys further argues that Officer Kusowksi required probable cause to
search him to recover the firearm. Id. at 13. Keys reasons that because the
police lacked reasonable suspicion, they did not have probable cause either.
Id. at 14. He therefore concludes that the firearm should have been
suppressed. Id.
The Commonwealth emphasizes that the police interaction was a mere
encounter until Officer Kusowski grabbed Keys. Commonwealth’s Brief at 7.
Considering the officers’ observations until that moment, the Commonwealth
points to multiple factors that gave reasonable suspicion to stop Keys and pat
-3-
J-S20022-23
him down to search for weapons—in a high-crime area, Keys adjusted his
waistband immediately upon seeing a police car, denied that he was armed,
appeared nervous, blocked his waistband with his hands, turned, and stepped
backwards. Id. at 9–10. The Commonwealth submits that police could thus
stop and frisk Keys without a showing of probable cause. Id. at 11–13.
* * *
The following principles guide our review:
An appellate court’s standard of review in addressing a challenge
to the denial of a suppression motion is limited to determining
whether the suppression court’s factual findings are supported by
the record and whether the legal conclusions drawn from those
facts are correct. Because the Commonwealth prevailed before
the suppression court, we may consider only the evidence of the
Commonwealth and so much of the evidence for the defense as
remains uncontradicted when read in the context of the record as
a whole. Where the suppression court’s factual findings are
supported by the record, the appellate court is bound by those
findings and may reverse only if the court’s legal conclusions are
erroneous. Where the appeal of the determination of the
suppression court turns on allegations of legal error, the
suppression court’s legal conclusions are not binding on an
appellate court, whose duty it is to determine if the suppression
court properly applied the law to the facts. Thus, the conclusions
of law of the courts below are subject to plenary review.
Commonwealth v. Jones, 266 A.3d 1090, 1093–94 (Pa. Super. 2021)
(quoting Commonwealth v. Jones, 121 A.3d 524, 526–27 (Pa. Super.
2015)). Because Keys challenges the suppression court’s legal conclusions,
not its factual findings, we set forth the applicable law.
The Fourth Amendment of the United States Constitution and Article I,
Section 8 of the Pennsylvania Constitution protect against unreasonable
-4-
J-S20022-23
searches and seizures. Commonwealth v. Hicks, 208 A.3d 916, 924–25
(Pa. 2019). The protections are coextensive in requiring reasonable suspicion
for an officer to “stop and frisk” an individual under Terry v. Ohio, 392 U.S.
1 (1968). Id. at 925 (citing Commonwealth v. Brown, 996 A.2d 473, 476
(Pa. 2010), and Commonwealth v. Jackson, 698 A.2d 571, 573 (Pa. 1997)).
The law defines reasonable suspicion as follows:
Reasonable suspicion is a less stringent standard than probable
cause necessary to effectuate a warrantless arrest, and depends
on the information possessed by police and its degree of reliability
in the totality of the circumstances. In order to justify [an
investigative detention], a police officer must be able to point to
“specific and articulable facts” leading him to suspect criminal
activity is afoot. Commonwealth v. Melendez, 676 A.2d 226,
228 (Pa. 1996). In assessing the totality of the circumstances,
courts must also afford due weight to the specific, reasonable
inferences drawn from the facts in light of the officer’s experience
and acknowledge that innocent facts, when considered
collectively, may permit the investigative detention.
Commonwealth v. Cook, 735 A.2d 673, 676 (Pa. 1999).
Brown, 996 A.2d at 477 (citation format altered).
Notably, an officer must have separate justifications to initiate an
investigative detention (the stop) and to perform a pat-down search for
weapons (the frisk):
First, the investigatory stop must be lawful. That requirement is
met in an on-the-street encounter, Terry determined, when the
police officer reasonably suspects that the person apprehended is
committing or has committed a criminal offense. Second, to
proceed from a stop to a frisk, the police officer must reasonably
suspect that the person stopped is armed and dangerous.
Hicks, 208 A.3d at 921 (quoting Arizona v. Johnson, 555 U.S. 323, 326–27
(2009)).
-5-
J-S20022-23
In Hicks, our Supreme Court held that a person’s mere possession of a
concealed firearm in public does not create reasonable suspicion that he is
dangerous, so as to justify briefly detaining him to investigate if he is properly
licensed. Id. at 947 (rejecting Commonwealth v. Robinson, 600 A.2d 957(Pa. Super. 1991)). Therefore, where the police received a report that a driver
was carrying a firearm in a high-crime area of Philadelphia, they lacked
reasonable suspicion to stop him. Commonwealth v. Price, 225 A.3d 1118,
1122–23 (Pa. Super. 2019) (“There was no evidence that the police had
reason to believe that Price was carrying a firearm illegally or was engaged in
any other illegal activity. Nor did the police observe Price do anything illegal
before stopping him.”).
However, police may consider contextual factors to reasonably suspect
that an individual’s possession of a gun is illegal. See Hicks, 208 A.3d at
938–39 (recognizing that firearm possession may be suspicious in light of
other factors, such as presence in a high crime area); cf. Commonwealth v.
Barr, 266 A.3d 25, 41–42 (Pa. 2021) (drawing from Hicks to conclude that
while the smell of marijuana alone does not provide probable cause to search
a vehicle, it may be considered among other factors). Factors that are
otherwise innocent, which can combine to support reasonable suspicion,
include angling one’s body away from the police, Commonwealth v. Carter,
105 A.3d 765, 775 (Pa. Super. 2014) (en banc), and making furtive
movements with extreme nervousness, Commonwealth v. Buchert, 68 A.3d
911, 916–17 (Pa. Super. 2013).
-6-
J-S20022-23
Finally, with respect to conducting a Terry frisk, an officer may remove
an object from a suspect’s clothing “under one of two justifications”:
Pursuant to Terry, . . . a police officer may remove an object from
within a suspect’s clothing under the reasonable suspicion that the
object is a weapon. If, however, during the frisk the police officer
is able to determine that the object is not a weapon, . . . the officer
may only remove the object if, by touch, it is immediately
apparent that the object is illegal contraband.
Interest of T.W., 261 A.3d 409, 422 (Pa. 2021) (drawing from
Commonwealth v. Taylor, 771 A.2d 1261 (Pa. 2001) (plurality), and
Minnesota v. Dickerson, 508 U.S. 366 (1993)). If an officer does not
determine during a frisk that an unknown object is not a weapon, the officer
requires only reasonable suspicion to remove the object, not probable cause.
Id. at 423.
Turning to Keys’ case, both parties advocate that the police interaction
became an investigative detention when Officer Kusowski physically grabbed
Keys. Keys’ Brief at 10; Commonwealth’s Brief at 7. The case thus turns on
whether the totality of the circumstances at that moment led the police to
reasonably suspect that Keys was committing a criminal offense (to justify a
stop) and was armed and dangerous (to justify a frisk). Hicks, 208 A.3d at
921.
The suppression court analyzed this issue as follows:
In [a] high crime area of the city, Officer Rycek observed
[Keys] glance at [the] marked cruiser and immediately adjust a
concealed object in his front waistband. [Keys] quickened his
pace after Officer Rycek called to him from the cruiser. And
though he turned to face Officer Kusowski who approached on foot
-7-
J-S20022-23
a few moments later, [Keys] purposefully rotated his hips and held
his arms so as to disguise the silhouette of his weapon. Officer
Kusowski reasonably inferred that these were not the actions of
someone licensed to carry a firearm but rather the actions of
someone unlicensed to carry one. That there was, perhaps, an
innocuous explanation for [Keys’] furtive actions does not defeat
the rationality of Officer Kusowski’s inferences. Together, these
factors were sufficient to permit the stop of [Keys].
Although the frisk quickly followed the stop, it too was
constitutionally justified. Officer Kusowski testified at the hearing,
“[i]t appeared to me that [Keys] was trying to conceal that front
waist from my view. And with his hands there, Your Honor, I was
afraid he may grab at the firearm, so I frisked him.” Officer
Kusowski reasonably suspected [Keys] of firearm violations.
[Keys’] furtive movements, cagey behavior, and the proximity of
his hands to the concealed weapon were sufficient to permit the
frisk.
Suppression Court Opinion, 12/14/22, at 4–5 (citations omitted).
We agree with the suppression court’s analysis and adopt it as our own.
Based on Hicks, the police needed reasonable suspicion, not just that Keys
was carrying a firearm, but that he was doing so illegally—concealed, without
a license in Philadelphia, or after being convicted of an enumerated crime.
See 18 Pa.C.S.A. §§ 6105, 6106, 6108. Keys’ actions to obscure his waist
from the officers led the police to reasonably suspect that his firearm
possession was illegal, such that they could temporarily detain him for further
investigation. Carter, supra; Buchert, supra. While Keys’ movements
could have a benign explanation, this does not negate the officers’ reasonable
suspicion. Brown, 996 A.2d at 477. Additionally, Officer Kusowski could frisk
Keys’ waistband because he reasonably suspected that Keys’ actions of
carrying a firearm illegally rendered him armed and dangerous.
-8-
J-S20022-23
When Officer Kusowski grabbed the object from Keys’ waistband, he had
not determined that it was not a weapon. Therefore, contrary to Keys’
assertion, the officer required reasonable suspicion, not probable cause, to
recover the gun. T.W., supra. As described above, Keys’ motions to obscure
his waist, where the officers suspected he had a weapon, provided reasonable
suspicion that he was carrying a firearm illegally. For these reasons, the
suppression court did not err in denying Keys’ motion to suppress the gun.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/26/2023
-9-