State v. Mitchell

               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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                          State v. Mitchell


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, 

, at *2 (D. Utah Nov. 14,
2008) (referring to SAC as “a violent white supremacist gang”);
see also United States v. Fackrell, 

 (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 

 (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, 

, 

.
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, 

, ¶ 20,

 (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, 

, 938–40 (Utah Ct. App. 1988), disagreed with on other
grounds by State v. Pena, 

 (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, 

, 

 (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,

, 

.

¶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, 

, 

 (quotation
simplified).

¶13 This case involves a level two encounter, which is
sometimes referred to as “an investigative detention.” See State v.
Hansen, 

, 

 (“A level two encounter
involves an investigative detention that is usually characterized



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                         State v. Mitchell


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, 

, 26–27
(1968); see also Hansen, 

 (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, 

, 326–27 (2009).

¶14 “The reasonableness of both the stop and the frisk are
evaluated objectively according to the totality of the
circumstances.” Warren, 

. 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.” 

(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. 

 “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.” 

¶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, 

 (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, 

,
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, 

, 

 (quotation simplified);
see also State v. Warren, 

, 

 (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, 

 (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, 

 (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, 

 (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, 

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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, 

, ¶¶ 11–17, 

 (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, 

, 

 (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, 

, 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, 

 (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, 

, 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, 

, 

(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, 

, 

 (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, 

, 

 (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 drugrelated 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 officersafety 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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