State v. Mitchell , 2019 UT App 190 ( 2019 )


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    2019 UT App 190
    THE UTAH COURT OF APPEALS
    STATE OF UTAH,
    Appellee,
    v.
    BRYANT ROBERT MITCHELL,
    Appellant.
    Opinion
    No. 20180508-CA
    Filed November 21, 2019
    Second District Court, Ogden Department
    The Honorable Joseph M. Bean
    No. 171901633
    Emily Adams and Cherise Bacalski, Attorneys
    for Appellant
    Sean D. Reyes and Jonathan S. Bauer, Attorneys
    for Appellee
    JUDGE RYAN M. HARRIS authored this Opinion, in which
    JUDGES DAVID N. MORTENSEN and JILL M. POHLMAN concurred.
    HARRIS, Judge:
    ¶1      A police officer frisked Bryant Robert Mitchell following a
    traffic stop, and found him in possession of drugs and a knife.
    The district court denied Mitchell’s motion to suppress the
    evidence discovered as a result of the pat-down, and Mitchell
    appeals. We affirm, because we conclude that the officer
    reasonably suspected that Mitchell might be armed and
    dangerous.
    State v. Mitchell
    BACKGROUND
    ¶2     While on patrol in an unmarked car in Ogden, Utah,
    police officers noticed a 1982 Chevy Blazer—with no roof and
    three passengers—make two turns without signaling. The
    officers began following the Blazer and, by checking its license
    plate number in their database, discovered that the vehicle was
    uninsured. The officers decided to make a traffic stop.
    ¶3      Just then, the Blazer turned into the parking lot of a
    convenience store, and the officers followed, but before they
    activated their red and blue lights, they saw and heard the
    shirtless front-seat passenger of the Blazer—a man who turned
    out to be Mitchell—stand up in his seat and yell the following
    words at a man walking through the convenience store’s parking
    lot: “Come here, you mother fucker[!]” Officers later testified
    that Mitchell looked “very upset” and “aggressive,” and that he
    began to open the door of the Blazer before it had come to a stop.
    One of them testified that Mitchell’s screaming sounded
    indicative of an intent to “get into a confrontation or a fight with
    the person that he was talking to.” After observing Mitchell’s
    profane salutation, they pulled in behind the Blazer and
    activated their red and blue lights.
    ¶4     One of the officers immediately recognized the shirtless
    passenger as Mitchell, a person the officer already knew to be a
    felon and member of the Soldiers of Aryan Culture (SAC), a
    violent white supremacist gang. 1 The officer was able to
    1. The officers testified at the suppression hearing that SAC is a
    white supremacist gang, but did not specifically discuss whether
    SAC has a reputation for violence. In this case, however, we may
    take judicial notice that SAC is a violent gang. See Utah R. Evid.
    201(b) (allowing courts to take judicial notice of facts that “can be
    accurately and readily determined from sources whose accuracy
    cannot reasonably be questioned”). Other courts have already
    (continued…)
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    recognize Mitchell quickly, because he had interacted with
    Mitchell on multiple prior occasions, including during a
    different drug investigation, and had thereby learned of
    Mitchell’s gang affiliation, later testifying that Mitchell was
    “pretty forthcoming about his involvement in” SAC. Moreover,
    during the incident in question, Mitchell was wearing only a pair
    of shorts, and was readily identifiable from his numerous
    tattoos, which covered his head, face, and torso. Among other
    tattoos, Mitchell had the SAC patch—a swastika wrapped
    around an iron cross—tattooed on the back of his head, behind
    his right ear; a large “88”—a reference to “Heil Hitler,” given
    that “H” is the eighth letter of the alphabet—tattooed on his
    stomach; the number “187”—a reference to the California Penal
    Code section for murder 2—tattooed under his left eye; and,
    finally, his SAC moniker—“Lowdown”—tattooed on both his
    forehead and torso.
    ¶5    After approaching the vehicle, and asking the three
    occupants some initial identifying questions, one of the officers
    asked the driver for his consent to search the Blazer, and the
    (…continued)
    noted that SAC is a violent gang, see, e.g., United States v. Dorton,
    No. 2:08CR158 DAK, 
    2008 WL 4912052
    , at *2 (D. Utah Nov. 14,
    2008) (referring to SAC as “a violent white supremacist gang”);
    see also United States v. Fackrell, 
    368 F. Supp. 3d 1010
    , 1017 (E.D.
    Tex. 2018) (allowing prosecutors to present evidence, at the
    sentencing phase, that the defendant was a SAC member and
    that SAC is a violent gang that “endorses the killing of members
    perceived to be disobedient, among other unlawful and violent
    acts”), and we do not perceive the point to be particularly
    controversial. Accordingly, we conclude that, even without
    direct officer testimony on this point in the record, we can take
    judicial notice of the fact that SAC is a violent gang.
    2. See Cal. Penal Code § 187 (West 2019).
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    State v. Mitchell
    driver agreed. Meanwhile, one of the other officers had run the
    names of the passengers of the Blazer through a police database,
    and discovered that the backseat passenger had two warrants for
    his arrest. At that point, the officers asked everyone to exit the
    Blazer so that they could conduct the search and arrest the
    passenger. All three men in the Blazer, including Mitchell,
    complied with this request without complaint or incident.
    ¶6     Immediately after Mitchell exited the vehicle, one of the
    officers frisked him. During the pat-down, the officer discovered
    a switchblade-style knife in the pocket of Mitchell’s shorts.
    Because he was a convicted felon, Mitchell was not allowed to
    possess such a weapon, so the officers then arrested Mitchell for
    unlawfully possessing the knife. After arresting Mitchell, the
    officers conducted a more thorough search of his person and
    discovered “a ball of a black tar like substance” that was later
    confirmed to be heroin.
    ¶7      The State eventually charged Mitchell with possession of
    a controlled substance with intent to distribute, and possession
    or use of a dangerous weapon by a restricted person. Prior to
    trial, Mitchell moved to suppress any evidence related to his
    possession of the knife and the heroin, arguing that the officers
    did not have a reasonable articulable suspicion to support the
    initial frisk, and that if the officers had not frisked him they
    would not have discovered either the knife or the heroin. The
    district court held a hearing on Mitchell’s motion, at which two
    of the officers, as well as Mitchell, testified under oath. In
    addition to the facts already described, one of the officers
    testified that, in his experience, “gang members typically carry
    weapons,” and that this knowledge was among the reasons he
    had decided to frisk Mitchell. For his part, Mitchell testified that
    his profane words to the man in the parking lot were not
    intended to be aggressive, and that he was just attempting to
    greet an old friend whom he had not seen in a while.
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    State v. Mitchell
    ¶8      At the conclusion of the hearing, the district court
    concluded that the officers had acted reasonably, and therefore
    denied Mitchell’s motion to suppress. The court grounded its
    ruling on the presence of three facts: (a) that Mitchell was a
    known member of the SAC gang; (b) that Mitchell had acted
    aggressively toward, and appeared to be on the verge of starting
    a fight with, the individual in the parking lot; and (c) that the
    backseat passenger was being arrested for outstanding warrants,
    a fact that might increase the potential volatility of the situation.
    ¶9     Following the denial of his motion, Mitchell entered a
    conditional guilty plea 3 to possession of a controlled substance
    with intent to distribute, and the State agreed to dismiss the
    weapons charge. As part of his conditional plea, Mitchell
    retained his right to appeal the denial of his motion to suppress.
    ISSUE AND STANDARD OF REVIEW
    ¶10 Mitchell now exercises his right to appeal. We review the
    district court’s “decision to grant or deny a motion to suppress
    for an alleged Fourth Amendment violation as a mixed question
    of law and fact.” State v. Fuller, 
    2014 UT 29
    , ¶ 17, 
    332 P.3d 937
    .
    Accordingly, we review the district court’s factual findings for
    clear error, but we review its ultimate legal conclusion—
    including “whether a specific set of facts gives rise to reasonable
    suspicion”—for correctness. See State v. Gurule, 
    2013 UT 58
    , ¶ 20,
    
    321 P.3d 1039
     (quotation simplified).
    3. With the consent of the prosecution and the approval of the
    judge, a defendant may enter a conditional guilty plea, while
    “preserv[ing] [a] suppression issue for appeal.” State v. Sery, 
    758 P.2d 935
    , 938–40 (Utah Ct. App. 1988), disagreed with on other
    grounds by State v. Pena, 
    869 P.2d 932
     (Utah 1994). “A defendant
    who prevails on appeal [after entering a conditional plea] shall
    be allowed to withdraw the plea.” Utah R. Crim. P. 11(j).
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    State v. Mitchell
    ANALYSIS
    ¶11 The Fourth Amendment to the United States Constitution
    protects citizens against unreasonable searches and seizures.
    Broadly speaking, “the touchstone of the Fourth Amendment is
    reasonableness, which is measured in objective terms by
    examining the totality of the circumstances.” State v. Baker, 
    2010 UT 18
    , ¶ 10, 
    229 P.3d 650
     (quotation simplified). To determine
    whether a search under the Fourth Amendment is reasonable,
    we weigh the competing interests of the public in police safety
    and mitigation of crime against the individual’s right to be free
    from arbitrary interference by officers. Id.; see also State v. Warren,
    
    2003 UT 36
    , ¶ 31, 
    78 P.3d 590
    .
    ¶12 In evaluating the reasonableness of police activity under
    the Fourth Amendment, courts must consider the nature of the
    police-citizen encounter, of which there are three general types:
    A level one encounter occurs when a police officer
    approaches a citizen and asks questions, but the
    person is not detained against his will and remains
    free to leave. A level two encounter occurs when a
    police officer temporarily seizes an individual
    because the officer has a reasonable, articulable
    suspicion that the person has committed or is
    about to commit a crime. Finally, a level three stop
    occurs when a police officer has probable cause to
    believe that a crime has been committed and effects
    an arrest of the suspect.
    State v. Applegate, 
    2008 UT 63
    , ¶ 8, 
    194 P.3d 925
     (quotation
    simplified).
    ¶13 This case involves a level two encounter, which is
    sometimes referred to as “an investigative detention.” See State v.
    Hansen, 
    2002 UT 125
    , ¶ 35, 
    63 P.3d 650
     (“A level two encounter
    involves an investigative detention that is usually characterized
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    as brief and non-intrusive.”). In particular, the type of level two
    encounter at issue in this case is a pat-down search for weapons,
    commonly known as a Terry frisk. Terry v. Ohio, 
    392 U.S. 1
    , 26–27
    (1968); see also Hansen, 
    2002 UT 125
    , ¶ 35 (noting that level two
    encounters include “Terry stop[s]” (quotation simplified)). A
    Terry frisk is “constitutionally permissible” if two conditions are
    satisfied: (1) “the investigatory stop must be lawful,” and (2)
    “the police officer must reasonably suspect that the person
    stopped is armed and dangerous.” Arizona v. Johnson, 
    555 U.S. 323
    , 326–27 (2009).
    ¶14 “The reasonableness of both the stop and the frisk are
    evaluated objectively according to the totality of the
    circumstances.” Warren, 
    2003 UT 36
    , ¶ 14. In evaluating the
    reasonableness of police conduct in this context, “a court should
    question whether the facts available to the officer at the moment
    of the seizure or the search [justify] a [person] of reasonable
    caution in the belief that the action taken was appropriate.” 
    Id.
    (quotation simplified). An officer who conducts a lawful Terry
    frisk “must be able to point to specific facts which, considered
    with rational inferences from those facts, reasonably warrant the
    intrusion” upon a citizen’s constitutional rights. 
    Id.
     “Courts must
    view the articulable facts in their totality and avoid the
    temptation to divide the facts and evaluate them in isolation
    from each other.” 
    Id. ¶15
     Here, Mitchell does not argue that the officers acted
    unlawfully in stopping the Blazer, and he therefore
    acknowledges that the first part of the Terry test is met. But
    Mitchell does contest the second part of the Terry test, asserting
    that the officers did not have a reasonable articulable suspicion
    that he was armed and dangerous. He points out—correctly—
    that many of the usual hallmarks of an armed and dangerous
    suspect are not present here. For instance, Mitchell was wearing
    very little clothing, and did not have many places to conceal a
    weapon; the officers did not notice a bulge in the clothing
    Mitchell was wearing; Mitchell did not make any movements
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    State v. Mitchell
    that suggested that he might be reaching for a weapon or
    attempting to conceal one; Mitchell did not have his hand in his
    pockets; there is no evidence that the officers were aware that
    Mitchell himself was typically armed; and Mitchell was
    completely compliant with every command given by the officers.
    ¶16 The State acknowledges the absence of the factors
    Mitchell lists, but defends the district court’s ruling by pointing
    to three facts present here: (a) Mitchell was an admitted member
    of SAC; (b) Mitchell acted aggressively and profanely toward a
    bystander, appearing to be on the verge of starting a fight with
    him; and (c) the officers were in the process of arresting the
    backseat passenger when the pat-down took place. The State
    argues that these facts, considered in their totality, gave rise to a
    reasonable articulable suspicion that Mitchell was armed and
    dangerous. We discuss each of these three factual issues, in turn.
    A
    ¶17 Due to their prior interactions with Mitchell, as well as
    Mitchell’s ostentatious tattoos, the officers were aware that
    Mitchell was a member of SAC, a violent white supremacist
    gang. Moreover, one officer testified that gang members are
    more likely than other individuals to be armed, stating that, in
    his experience, “gang members typically carry weapons.”
    ¶18 It has long been settled that “gang affiliation, by itself, is
    no basis for an investigative detention.” State v. Chapman, 
    921 P.2d 446
    , 453 (Utah 1996). However, while gang affiliation is
    insufficient in isolation, it can be a factor that, paired with other
    factors, may contribute to a reasonable suspicion that a person is
    armed and dangerous. See United States v. Garcia, 
    459 F.3d 1059
    ,
    1066–67 (10th Cir. 2006) (explaining that gang affiliation is “not
    necessarily determinative by itself,” but holding that it could be
    one factor among others pointing toward reasonable suspicion,
    stating that “apparent gang connection provides additional
    reason” for finding reasonable suspicion); State v. Johnson, 207
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    State v. Mitchell
    P.3d 804, 809 (Ariz. Ct. App. 2009) (holding that the defendant’s
    suspected gang membership, coupled with the officer’s
    knowledge that “gang members often carry firearms,” was a
    factor contributing to the officer’s reasonable suspicion that the
    defendant “might have been armed and dangerous”).
    ¶19 In determining how much weight to give gang affiliation
    in a totality of the circumstances analysis, it is instructive to
    consider, among other things, the nature of the gang involved,
    and whether the officers actually know—or merely suspect—
    that the individual is affiliated with a gang. In this case, the gang
    in question is a violent white supremacist gang whose ideology
    lies displayed in tattoo form all over Mitchell’s body, including a
    swastika wrapped around an iron cross tattooed to the back of
    his head; code for “Heil Hitler” tattooed in large print on his
    stomach; and “187”—the California Penal Code section for
    murder—tattooed on his face.
    ¶20 Moreover, the officers were not merely guessing that
    Mitchell might be part of a gang. In this case, they knew that
    Mitchell was a SAC member, because he had told them so on
    previous occasions, with one officer testifying that Mitchell was
    “pretty forthcoming about his involvement” in SAC. Indeed,
    Mitchell did not contest the fact that he is a member of SAC. In
    other cases, even an officer’s suspicion—based, for instance, on
    the color of clothing the individual is wearing, the part of town
    the individual is in, or the company the individual keeps—that
    an individual might be a member of a gang has been considered
    a proper factor in a “totality of the circumstances” analysis. See,
    e.g., Garcia, 
    459 F.3d at 1066
    –67 (holding that officers had
    reasonable suspicion to frisk a defendant, in part because he was
    present in an apartment with other known gang members);
    Johnson, 207 P.3d at 808 (holding that officers had reasonable
    suspicion to frisk the defendant, in part because he was wearing
    blue clothing in a part of town known to be frequented by “a
    gang whose members frequently wear blue clothing”). But here,
    the officers knew for certain that Mitchell was a member of a
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    State v. Mitchell
    violent white supremacist gang, and therefore we afford more
    weight to the gang factor than would perhaps be justified if the
    officers merely suspected gang involvement, or if the gang in
    question were not known to be violent.
    B
    ¶21 In addition to knowing that Mitchell was a member of
    SAC, the officers had also just observed potentially violent
    behavior by Mitchell. As described above, Mitchell unleashed a
    loud and profane salutation toward an individual in the
    convenience store parking lot, and it appeared to the officers as
    though Mitchell was acting aggressively and that he was on the
    verge of starting a physical altercation with that individual.
    ¶22 Utah courts have recognized that “loud and boisterous
    behavior is a fact that tends to support an officer’s reasonable
    suspicion that a suspect may be armed and dangerous.” State v.
    Parke, 
    2009 UT App 50
    , ¶ 12, 
    205 P.3d 104
     (quotation simplified);
    see also State v. Warren, 
    2003 UT 36
    , ¶ 33, 
    78 P.3d 590
     (citing “loud
    and boisterous behavior” as a factor that can support reasonable
    suspicion). However, not all loud and boisterous behavior is
    created equal; a noisy celebration of a sports team’s victory will
    likely be less troubling than confrontational behavior actually
    directed toward another person, especially if directed toward an
    officer or exhibited in an officer’s presence. Compare United States
    v. Garcia, 
    751 F.3d 1139
    , 1144 (10th Cir. 2014) (factoring into the
    analysis officers’ knowledge of a previous encounter in which
    the suspect had “act[ed] combatively toward police officers”);
    and United States v. Brown, 
    232 F.3d 589
    , 590 (7th Cir. 2000)
    (factoring into the analysis a suspect’s loud and profane
    behavior directed toward bystanders who were not police
    officers), with United States v. Williams, 
    731 F.3d 678
    , 681 (7th Cir.
    2013) (holding that reports of individuals “being loud while
    loitering in the parking lot of . . . a local bar,” without any
    indication of aggression toward anyone, was insufficient to
    constitute loud and boisterous behavior); and Parke, 
    2009 UT 20180508
    -CA                      10               
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    State v. Mitchell
    App 50, ¶ 8 (holding that a suspect becoming “somewhat
    agitated” in response to questioning did not constitute loud and
    boisterous behavior (quotation simplified)). In particular,
    although many people carry weapons for defensive purposes,
    common sense tells us that a person trying to start a fight is at
    least somewhat more likely to have a weapon than a person
    trying to avoid one; after all, having a weapon in one’s pocket
    tends to raise the odds of victory in any resulting altercation.
    ¶23 While Mitchell contested the officers’ perception of the
    nature of his salutation, claiming his words to have been a mere
    friendly greeting, the district court acknowledged the
    reasonableness of the officers’ interpretation of events, and we
    are not in any position to second-guess that interpretation. See
    State v. Markland, 
    2005 UT 26
    , ¶¶ 11–17, 
    112 P.3d 507
     (explaining
    that “it is settled law that an officer is not obligated to rule out
    innocent conduct prior to initiating an investigatory detention,”
    and holding that courts must “accord deference to an officer’s
    ability to distinguish between innocent and suspicious actions”
    (quotation simplified)). Accordingly, we accept, for the purposes
    of our analysis, that the officers reasonably believed that
    Mitchell was attempting to start a fight with the individual.
    ¶24 And once that perception is accepted, Mitchell’s behavior
    becomes highly relevant. The officers personally witnessed
    Mitchell yell profanely and aggressively at a bystander, stand up
    in the seat of the Blazer, and act as though he was about to
    initiate a physical altercation. Exhibition of this particular kind
    of loud and boisterous behavior is a factor that weighs
    significantly in favor of a determination that the officers
    reasonably suspected that Mitchell was armed and dangerous.
    C
    ¶25 Finally, the officers also knew that they were about to
    arrest the Blazer’s backseat passenger. While this fact does not
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    State v. Mitchell
    make it more likely that Mitchell was armed, it does raise the
    risk that Mitchell might have been dangerous.
    ¶26 Our supreme court has noted “that there are inherent
    safety concerns in all traffic stops,” and that “officer safety is an
    inherent aspect of the governing caselaw, which we are not at
    liberty to disregard.” State v. Warren, 
    2003 UT 36
    , ¶ 23, 
    78 P.3d 590
     (quotation simplified). While officers cannot Terry frisk all
    occupants of a vehicle simply for safety reasons, see 
    id. ¶ 25,
     the
    circumstances of a particular traffic stop may give rise to specific
    concerns. For example, when officers must initiate an arrest in a
    public place, courts have noted that officer safety concerns
    related to the arrest can factor into an analysis of whether a level
    two detention of a bystander is appropriate. See United States v.
    Maddox, 
    388 F.3d 1356
    , 1366–67 (10th Cir. 2004) (holding that
    officers were justified in temporarily detaining a bystander at an
    arrest scene, in part because of officer safety concerns); Thompson
    v. City of Lawrence, 
    58 F.3d 1511
    , 1517 (10th Cir. 1995) (holding
    that, where the officers were “unaware of the nature of [a
    bystander’s] relationship” to a person they were arresting at the
    scene, “[t]he governmental interest in securing the area around
    [the arrestee] and protecting officers from potential danger is
    sufficient to justify” a temporary level two detention).
    ¶27 Here, the officers were in the process of arresting one of
    the passengers. Mitchell was known to be a member of a gang,
    and gang members are known to be loyal to one another. At the
    time they made the arrest, the officers did not know whether the
    arrestee was a member of the same gang as Mitchell, a fact
    which (if true) would raise the risk that the arrest might spark an
    incident. In addition, regardless of the relationship between
    Mitchell and the arrestee, one or more of the officers was going
    to need to direct their attention to finalizing the arrest, and
    would thereby be distracted from other matters, including
    keeping an eye on Mitchell and the driver. See United States v.
    Garcia, 
    751 F.3d 1139
    , 1145–46 (10th Cir. 2014) (holding that the
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    State v. Mitchell
    fact that the officer would be distracted by conducting a search
    of a vehicle could be a factor supporting a Terry frisk).
    ¶28 Under these circumstances, where officers executing a
    valid arrest warrant have firsthand knowledge of a bystander’s
    involvement in a violent gang, that bystander’s presence during
    the arrest is another factor to consider in determining whether
    officers had reasonable suspicion to support a Terry frisk.
    D
    ¶29 When we consider the circumstances of this case in their
    totality, we are persuaded that the officers had reasonable
    suspicion that Mitchell might be armed and dangerous, and
    were therefore justified in conducting a Terry frisk.
    ¶30 As noted above, “whether an officer has reasonable
    suspicion to subject an individual to a Terry stop and frisk is
    evaluated objectively according to the totality of the
    circumstances.” State v. Peterson, 
    2005 UT 17
    , ¶ 11, 
    110 P.3d 669
    (quotation simplified). In examining the totality of the
    circumstances, the touchstone of the analysis is whether “the
    facts available to the officer at the moment of the seizure or the
    search [justify] a [person] of reasonable caution in the belief that”
    the frisk was lawful. State v. Warren, 
    2003 UT 36
    , ¶ 14, 
    78 P.3d 590
     (quotation simplified). In short, this step of the analysis
    requires the careful weighing of each recognized and relevant
    factor supporting reasonable suspicion against any factors that
    would seem to mitigate the danger. See State v. Baker, 
    2010 UT 18
    ,
    ¶ 55, 
    229 P.3d 650
     (weighing facts increasing the danger
    associated with traffic stops—such as the late hour of the stop,
    the officer’s suspicion that the suspect was involved in drug-
    related activity, and the need to impound the suspect’s car—
    against mitigating factors, such as the suspect’s cooperation, lack
    of threatening behavior, and the officer’s subjective lack of fear
    for their safety). In doing so, we examine the factors with an eye
    toward preserving the “balance between the public interest and
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    State v. Mitchell
    the individual’s right to personal security free from arbitrary
    interference by law officers.” 
    Id. ¶ 10
     (quotation simplified).
    ¶31 In this case, Mitchell correctly points out that this case
    lacks many of the usual indications that a person might be
    armed and dangerous. As noted above, once he was aware of
    their presence, Mitchell was cooperative with the officers and
    did not act aggressively toward them; the officers saw no bulge
    in his pockets; and Mitchell did not act as though he was
    attempting to retrieve or conceal a weapon. Moreover, we are
    not necessarily convinced that any of three factors relied on by
    the State, standing alone, would be sufficient to amount to
    reasonable articulable suspicion. Mitchell’s status as a member
    of SAC is not enough by itself, and neither is Mitchell’s profane
    salutation toward the individual in the parking lot. But under
    the unique circumstances of this case, those two factors, viewed
    together, gave rise to a reasonable suspicion that Mitchell might
    be armed—after all, he was a member of a violent gang and the
    officers reasonably believed that he was acting aggressively
    toward, and about to start a physical altercation with, a
    bystander. And the danger of the situation, from an officer-
    safety standpoint, is heightened by the fact that the officers were
    going to arrest one of Mitchell’s fellow passengers, whose exact
    relationship to Mitchell was at the time unknown. While we
    consider this a close case, we are ultimately persuaded by the
    State’s position that the officers had reasonable articulable
    suspicion to conduct a Terry frisk.
    CONCLUSION
    ¶32 Because the officers had reasonable suspicion to support
    their pat-down of Mitchell, the district court did not err in
    denying Mitchell’s motion to suppress.
    ¶33   Affirmed.
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