Filed 1/17/23 P. v. Superior Court (Boget) CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Petitioner,

v.

THE SUPERIOR COURT OF SAN 

DIEGO COUNTY,

Respondent;

 D080933

 (San Diego County

 Super. Ct. No. SCE396295)

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.
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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.