People v. Superior Court (Boget) CA4/1 ( 2023 )

Filed 1/17/23 P. v. Superior Court (Boget) CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D080933
Petitioner, (San Diego County
Super. Ct. No. SCE396295)
v.
THE SUPERIOR COURT OF SAN
DIEGO COUNTY,
Respondent;
JAMES MITCHELL BOGET,
Real Party in Interest.
ORIGINAL PROCEEDING in mandate challenging an order of the
Superior Court of San Diego County, John M. Thompson, Judge. Petition
granted.
Summer Stephan, District Attorney, Linh Lam, Valerie Ryan, and
Ronald A. Jakob, Deputy District Attorneys, for Petitioner.
No appearance for Respondent.
Katherine Braner, Chief Deputy Public Defender, Kristen Santerre
Haden and Emily Rose-Weber, Deputy Public Defenders, for Real Party in
Interest.
By petition for writ of mandate, the People challenge the superior
court’s order granting in part a motion by James Mitchell Boget to suppress
evidence linking him to a murder. The People contend the court erroneously
ruled the police officer who detained Boget in a traffic stop did not have
reasonable suspicion to conduct a frisk for weapons that led to incriminating
evidence. We agree and grant the petition.
I.
BACKGROUND
A. The Murder
William Mambro was found dead in a bedroom of his house in La Mesa
on December 28, 1983. He had been stabbed, strangled, and bludgeoned.
The house had been ransacked. Foreign and domestic coins, including
Buffalo nickels and solid silver coins, and butts and empty packages of
Marlboro cigarettes were scattered about. Mambro was last seen alive four
days earlier leaving Petrucelli’s Bar with Boget.
B. The Traffic Stop, Arrest, and Custodial Questioning
On December 26, 1983, Officer Larry D. St. Mars of the El Cajon Police
Department was on patrol when he spotted a car with an expired
registration. He stopped the car and asked the driver and passenger for
identification. Neither had any. The driver identified himself as Kent
Hughes Clark, and the passenger identified himself as Boget. St. Mars ran a
records check and summoned another police officer to the scene. After the
other officer arrived, Clark and Boget were asked to exit the car and did so.
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St. Mars proceeded to question Boget, who admitted he had just been in
prison for forgery and was on parole. During the questioning, St. Mars
observed “a bulge” in Boget’s left coat pocket and asked whether Boget had
any weapons. Boget answered, “ ‘No.’ ” St. Mars then touched the bulge and
felt what he believed to be the handle of a knife. Boget said, “ ‘I’m not
supposed to have those, I was just returning them, they were a Christmas
present.’ ” Boget then removed three knives from his pocket. St. Mars
arrested Boget for possession of a concealed dirk or dagger. Upon being
booked into jail, Boget was found in possession of three Buffalo nickels, a
silver quarter, an Asian coin, and a pack of Marlboro cigarettes.
While Boget was in jail, Sergeant Arthur Haber of the La Mesa Police
Department learned a bartender had seen Boget leave Petrucelli’s Bar with
Mambro on December 24, 1983. Haber went to the jail to interview Boget on
January 5, 1984. Haber gave Boget the warnings required by Miranda v.
Arizona (1966) 384 U.S. 436 (Miranda).1 Boget said he understood the
warnings and agreed to talk to Haber. Boget said he did not know Mambro
and had never been to his house. Boget then recounted his company and
whereabouts from December 24, 1983, until his arrest two days later. Boget
told Haber the knives found during the traffic stop by St. Mars were a
Christmas gift from Marsha Love, and the Buffalo nickels and silver quarter
found when Boget was booked into jail had been given to him as change in a
purchase.
Haber contacted some of the people in whose company Boget said he
had been between December 24 and 26, 1983, and then interviewed Boget a
1 “Prior to any questioning, the person must be warned that he has a
right to remain silent, that any statement he does make may be used as
evidence against him, and that he has a right to the presence of an attorney,
either retained or appointed.” (Miranda, supra, 384 U.S. at p. 444.)
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second time at the jail on January 10, 1984. Haber again gave Boget the
Miranda warnings, which he said he understood. When Haber told Boget his
statements during the prior interview were inconsistent with those of Love
and others Haber had contacted, Boget said they must have been lying.
Boget changed his story about the knives and said he received them from
somebody at Love’s apartment complex, but he could not identify the donor.
Boget again said he had received the coins as change in a purchase. He also
again claimed he did not know and never had any contact with Mambro.
C. The Criminal Charges
The murder investigation went dormant for many years and became
active again in 2019, when DNA matching Boget’s profile was found on
cigarette butts from the scene of Mambro’s murder. In November 2019, the
People filed a felony complaint against Boget alleging he murdered Mambro
(Pen. Code, § 187, subd. (a)) and personally used a deadly and dangerous
weapon (a knife) in the murder (id., § 12022, subd. (b)). After a preliminary
hearing in February 2021, Boget was held to answer. The People then filed
an information containing the same charge and allegation as the complaint.
D. The Motion to Suppress Evidence
Boget filed a motion to suppress all items found and statements made
to law enforcement officers after St. Mars frisked him, on the ground such
evidence was the product of an illegal search and seizure. (Pen. Code,
§ 1538.5, subd. (a)(1)(A).) Boget argued that because St. Mars did not have
reasonable suspicion to detain him or to frisk him for weapons, the detention
and frisk violated the federal and state constitutional prohibitions against
“unreasonable searches and seizures” (U.S. Const., 4th Amend.; Cal. Const.,
art. I, § 13), and all evidence that was the product of the detention and frisk
must be suppressed (Mapp v. Ohio (1961) 367 U.S. 643, 655 [“all evidence
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obtained by searches and seizures in violation of the Constitution is, by that
same authority, inadmissible in a state court”]).
The People opposed the motion. They argued Boget was lawfully
detained as a passenger in a car stopped for expired registration; he was
lawfully ordered to exit the car; he was lawfully frisked when St. Mars
observed a bulge in Boget’s coat pocket that could have been caused by a
weapon; and the connection between any illegality in the course of the traffic
stop and Boget’s jailhouse statements to Haber was so attenuated that
suppression of the statements was not required.
The superior court held a hearing on the suppression motion. St. Mars
testified he had no independent recollection of the traffic stop involving
Boget. St. Mars’s written report of the stop was admitted into evidence as
past recollection recorded. (Evid. Code, § 1237.) No other evidence was
admitted. The court ruled Boget’s detention was lawful as part of the traffic
stop; but the frisk was not lawful, because “the sole fact that [St. Mars] saw a
bulge in [Boget’s] coat pocket without warrant would not lead to a suspicion
[Boget] was armed and dangerous.” The court also ruled “[t]here were no
intervening causes or sufficient attenuation” that would allow admission of
Boget’s statements to Haber, which were “tainted” in that Haber had access
to Boget only “because of his illegal arrest.” The superior court ordered
suppression of the items found on Boget’s person during the frisk and his
booking into jail as well as his statements to Haber.2
E. The Writ Proceeding
The People petitioned this court for a writ directing the superior court
to vacate its order granting the suppression motion and to enter a new order
2 The superior court refused to suppress record albums found in the car.
That ruling is not challenged in this writ proceeding.
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denying the motion. (Pen. Code, § 1538.5, subd. (o).) We issued an order
directing the superior court to show cause why the relief sought in the
petition should not be granted. Boget filed a return, and the People filed a
reply.
II.
DISCUSSION
The People contend the superior court erroneously ruled St. Mars’s
observation of a bulge in Boget’s coat pocket during the traffic stop did not
justify the frisk for weapons that led to the evidence against him. The People
also contend the court erroneously suppressed Boget’s statements to Haber at
the jail on the ground that but for the illegal frisk Boget would not have been
arrested and available in jail for questioning. Even if the frisk was illegal,
say the People, the court should have ruled the passage of time and
intervening circumstances so attenuated any nexus between the frisk and
Boget’s statements that suppression was not required. Defending the
superior court’s rulings, Boget argues suppression of the incriminating
physical evidence was required because St. Mars’s observation of the bulge
did not justify the frisk. Boget also argues his statements to Haber must be
suppressed as derivative of the illegal frisk. After setting forth the applicable
standard of review, we shall address the parties’ competing contentions.
A. The Standard of Review
When the facts are undisputed, we independently determine the
legality of a challenged search or seizure. (People v. Aldridge (1984)
35 Cal.3d 473, 477; People v. Holiman (2022) 76 Cal.App.5th 825, 831; People
v. Balint (2006) 138 Cal.App.4th 200, 205.) The only facts relevant to the
traffic stop and the frisk of Boget are those stated in St. Mars’s written
report; no other evidence concerning those matters was introduced at the
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hearing on the suppression motion. The trial court’s application of the law to
those facts thus presents a purely legal question subject to our de novo
review.
B. The Legality of the Frisk
We apply federal constitutional law to decide whether the superior
court correctly suppressed the evidence against Boget as the product of an
illegal search. (People v. Buza (2018) 4 Cal.5th 658, 685.) When a defendant
in a criminal case moves to suppress evidence, a trial court may grant the
motion only if the evidence was obtained in violation of the United States
Constitution. (Cal. Const., art. I, § 28, subd. (f)(2); In re Lance W. (1985)
37 Cal.3d 873, 879 (Lance W.); People v. Roberts (2021) 68 Cal.App.5th 64, 81-
82 (Roberts).) The United States Supreme Court has held a police officer
may, without violating the Fourth Amendment, stop a vehicle when the
officer has probable cause to believe a traffic violation has occurred (Whren v.
United States (1996) 517 U.S. 806, 810), order the driver and any passengers
to exit the vehicle (Maryland v. Wilson (1997) 519 U.S. 408, 410), and frisk
the driver and any passengers reasonably suspected of being armed and
dangerous (Arizona v. Johnson (2009) 555 U.S. 323, 327 (Johnson)). Here, St.
Mars stopped the vehicle in which Boget was a passenger because its
registration was expired, asked him to get out of the vehicle, and frisked him
for weapons. Only the legality of the third of these actions is here contested.
We thus turn to whether the frisk violated the Fourth Amendment.
The Fourth Amendment permits a police officer to frisk for weapons a
person lawfully detained if the circumstances and inferences that reasonably
may be drawn from them support a reasonable suspicion the person may be
armed and dangerous. (Terry v. Ohio (1968) 392 U.S. 1, 27.) Such a frisk
must “be confined in scope to an intrusion reasonably designed to discover
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guns, knives, clubs, or other hidden instruments for the assault of the police
officer,” such as a pat down of the person’s outer garments. (Id. at pp. 29-30;
see Johnson, supra, 555 U.S. at p. 326 [“frisk” is “patdown for weapons”].)
The Terry standard for a frisk applies to both drivers and passengers in a
traffic stop. (Pennsylvania v. Mimms (1977) 434 U.S. 106, 111-112 (Mimms)
[driver]; Johnson, at p. 327 [passenger].)
The United States Supreme Court first applied Terry, supra, 392 U.S.
1, to a traffic stop in a case with facts very similar to those presented here.
In Mimms, supra, 434 U.S. 106, police officers stopped a vehicle being driven
with an expired license plate. An officer asked the driver to get out of the car,
and when the driver complied, “the officer noticed a large bulge under [the
driver’s] sports jacket. Fearing that the bulge might be a weapon, the officer
frisked [the driver] and discovered in his waistband a .38-caliber revolver
loaded with five rounds of ammunition.” (Id. at p. 107.) The Supreme Court
had “little doubt” about the propriety of the search, because “[t]he bulge in
the jacket permitted the officer to conclude that [the driver] was armed and
thus posed a serious and present danger to the safety of the officer. In these
circumstances, any man of ‘reasonable caution’ would likely have conducted
the ‘pat down.’ ” (Id. at pp. 111-112.) The Supreme Court therefore reversed
the judgment of the Pennsylvania Supreme Court, which had erroneously
ruled the “ ‘revolver was seized in a manner which violated the Fourth
Amendment.’ ” (Id. at pp. 106-107.)
The People correctly contend Mimms, supra, 434 U.S. 106, is
controlling. Like the officer in Mimms who “noticed a large bulge under [the
driver’s] sports jacket” when the driver exited a vehicle during a traffic stop
(id. at p. 107), St. Mars “observed a bulge in [Boget’s] left front coat pocket”
after he got out of a vehicle during a traffic stop. The officer in Mimms feared
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the bulge could be a weapon, frisked the driver, and discovered a revolver.
(Ibid.) Similarly here, the words and actions of St. Mars documented in his
written report of the traffic stop clearly indicate he was concerned the bulge
in Boget’s coat pocket could be a weapon, even though St. Mars did not
expressly so state in the report. After seeing the bulge, St. Mars immediately
asked Boget whether he had any weapons and, despite his denial, touched
the coat pocket and found knives. On these facts, we think the same
“legitimate and weighty” concern for “the safety of the officer” that justified
the “limited search for weapons” in Mimms justified St. Mars’s frisk of Boget.
(Id. at pp. 110, 111.)
Boget argues Mimms, supra, 434 U.S. 106, is not controlling because,
unlike in that case, “[h]ere, there is no description of the bulge or any
indication that the officer believed that the bulge meant [the detainee] was
armed and presently dangerous.” Boget further argues that extending
Mimms to cover the facts of this case, as the People urge, would subject
“anyone with anything in their pocket,” including something “that is clearly
the size and shape of a cellphone, a pack of gum, sunglasses, keys, or a
wallet[,] . . . to a pat down search solely because the benign object causes a
bulge in their clothing.” We are not persuaded.
Concluding the frisk here at issue was permissible under Mimms,
supra, 434 U.S. 106, does not lead to a rule that observation of any bulge in
the clothing of a person detained during a traffic stop justifies a frisk for
weapons. To be permissible under the Fourth Amendment, a frisk requires
facts and reasonable inferences from the facts that support a reasonable
suspicion the person to be frisked is armed and dangerous. (Johnson, supra,
555 U.S. at p. 327; Mimms, at pp. 111-112; Terry, supra, 392 U.S. at p. 27.)
Because the object of a frisk is discovery of items that could be used to attack
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the detaining police officer, to support reasonable suspicion bulges in clothing
must be consistent with “guns, knives, clubs, or other hidden instruments”
that could be used as weapons. (Terry, at p. 29; see Ybarra v. Illinois (1979)
444 U.S. 85, 93-94 [“Nothing in Terry can be understood to allow . . . any
search whatever for anything but weapons.”].) A bulge “that is clearly the
size and shape of a cellphone, a pack of gum, sunglasses, keys, or a wallet,” as
Boget hypothesizes, would not seem to qualify. (Italics added.)
For a bulge in clothing to justify a frisk, however, it is not required, as
Boget suggests, that the officer describe the bulge as “ ‘large’ ” and expressly
state a fear or belief the bulge might be a weapon. The Mimms court
attached no special significance to the size of the bulge in concluding the
police officer’s belief it might be a weapon justified the frisk. (Mimms, supra,434 U.S. at pp. 111-112.) And, as we previously explained, although St. Mars
did not write in his report that he suspected the bulge he saw in Boget’s coat
pocket was a weapon, the immediate questioning of Boget about weapons and
touching of his coat pocket clearly indicate St. Mars’s concern Boget might
have been armed and dangerous. Mimms requires no more to justify the
frisk. (See United States v. Robinson (4th Cir. 2017) 846 F.3d 694, 700 [“The
only evidence of Mimms’ dangerousness was the bulge indicating that he was
armed.”]; United States v. Allen (9th Cir. 1980) 675 F.2d 1373, 1383 [“a
noticeable bulge in [a detainee’s] pocket . . . provided reasonable suspicion for
the officers to conduct a frisk”]; People v. Brown (1985) 169 Cal.App.3d 159,
165 (Brown) [police officer’s observation of bulge under detainee’s jacket in
location where weapons are commonly carried justified frisk under Mimms].)
Boget faults the People for “ignor[ing]” in their writ petition People v.
Pantoja (2022) 77 Cal.App.5th 483, which he describes as “recent, relevant
caselaw” supporting the superior court’s order on the suppression motion.
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We disagree with that description. In Pantoja, a police officer frisked a driver
during a traffic stop and found a loaded revolver in the driver’s waistband
concealed under a hoodie. (Id. at pp. 486-487.) At the suppression motion
hearing, the officer testified there was “ ‘a good possibility or chance’ ” the
driver might be armed and dangerous, in part because “ ‘[h]e was wearing
baggy clothing.’ ” (Id. at p. 487.) The officer further testified “ ‘[t]he hoodie
naturally has bulges in it,’ ” but in his written report the officer “did not
mention any bulges in [the driver’s] clothes.” (Ibid.) The trial court ruled the
baggy clothing did not support a reasonable suspicion the driver was armed
and dangerous, and the Court of Appeal affirmed. (Id. at pp. 488, 490, 493.)
Here, by contrast, St. Mars in his report did mention a bulge in Boget’s coat
pocket, and the immediate questioning of Boget about weapons clearly
indicates St. Mars suspected the bulge might be a weapon. And unlike the
driver’s clothing in Pantoja, nothing in the record here suggests Boget’s
clothing, described simply as a “nylon jacket,” had natural bulges. Moreover,
Pantoja did not cite Mimms, supra, 434 U.S. 106, which we must follow.
(Brown, supra, 169 Cal.App.3d at p. 166.)
In sum, because St. Mars’s frisk of Boget for weapons did not violate
the federal Constitution (Mimms, supra, 434 U.S. at pp. 108, 111-112), the
superior court erred by suppressing evidence obtained as a result of the frisk
(Lance W., supra, 37 Cal.3d at p. 879; Roberts, supra, 68 Cal.App.5th at
pp. 81-82; Brown, supra, 169 Cal.App.3d at p. 166). This conclusion makes it
unnecessary for us to decide whether the illegality of the frisk so tainted
Haber’s questioning of Boget in jail that his statements must be suppressed
as “fruit of the poisonous tree,” as Boget contends, or whether the passage of
time and intervening events so attenuated any taint that the statements
need not be suppressed, as the People contend. Both contentions proceed
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from the erroneous premise the frisk was illegal. Because none of the
evidence against Boget was tainted by a search or seizure that was
unreasonable under the Fourth Amendment, none of it should have been
suppressed.
III.
DISPOSITION
Let a writ issue commanding the superior court, immediately upon
receipt of the writ, to vacate its order granting in part Boget’s motion to
suppress evidence and to enter a new order denying the motion in its
entirety.
IRION, J.
WE CONCUR:
McCONNELL, P. J.
BUCHANAN, J.
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