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State v. Mitchell

Court of Appeals of Utah

November 21, 2019

State of Utah, Appellee,
v.
Bryant Robert Mitchell, Appellant.

          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.

         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 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 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.

         ¶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, ...


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