Filed 5/31/13 P.v. Kimmons CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Appellant,

v.

NICHOLAS ANDRE KIMMONS,

Defendant and Respondent.

 A136010

 (San Francisco City & County

 Super. Ct. No. 217708)

The People appeal from the dismissal of resisting arrest charges arising from a 

fracas that occurred when San Francisco police officers attempted to arrest and handcuff 

defendant Nicholas Andre Kimmons. Due to insufficient evidence the police had 

probable cause to arrest defendant, the trial court ordered the suppression of all evidence 

stemming from the arrest, including the testimony of witnesses to the ensuing altercation. 

The court then dismissed the resisting arrest charges for lack of evidence. The People 

contend the court erred in suppressing witness testimony concerning defendant‘s conduct 

upon his arrest, and in dismissing the charges. We agree, and will reverse the dismissal 

order.

I. BACKGROUND

Defendant was charged by information with assault with a deadly weapon (Pen. 

Code,1§ 245, subd. (a)(1); count I), resisting a peace officer causing serious bodily injury 

(§ 148.10, subd. (a); count II), three counts of resisting an executive officer with threats 

 

1 All statutory references are to the Penal Code.
2

and violence (§ 69; counts III–V), and six counts of misdemeanor obstructing a police 

officer (§ 148, subd. (a)(1); counts VI–XI). The information alleged defendant inflicted 

great bodily injury during the commission of count III. (§ 12022.7, subd. (a).) The 

information further alleged defendant had suffered a prior felony conviction pursuant to 

sections 667, subdivisions (a)(1), (d), and (e), and 1170.12, subdivisions (b) and (c). 

Defendant filed a section 995 motion to set aside counts I–V and IX–X, and a 

motion to suppress under section 1538.5. The section 1538.5 motion sought suppression 

of (1) all statements defendant made during and following his assertedly unlawful arrest; 

(2) any items seized from defendant, including a pocketknife; and (3) any other evidence, 

whether tangible or intangible, that arose from the warrantless arrest and search and 

seizure of defendant. 

The trial court granted defendant‘s section 995 motion as to counts I and X. 

Following an evidentiary hearing, the court granted defendant‘s motion to suppress 

evidence and dismissed the remaining charges on May 21, 2012. 

The People timely appealed from the trial court‘s May 21, 2012 order. 

A. Facts2

San Francisco Police Officer Christina Johnson was the only witness at the 

suppression hearing. She was on duty with her partner, Officer Nathan Bernard, at the 

Ingleside station when a call came in regarding an aggravated assault on BART. The 

suspect was described in the radio dispatch as a Black male wearing black clothing and a 

black beanie. The officers were further informed another person was following the 

suspect and providing dispatch with updated information on the suspect‘s location. As 

the officers responded to the BART station, Johnson noticed defendant, who matched the 

suspect‘s description, walking across the street. Another man, who turned out to be the 

alleged assault victim, was walking behind defendant and talking on his phone. 

The officers stopped their marked patrol car and approached defendant. Bernard 

said, ―Let me talk to you about something that happened on BART.‖ Because defendant 

 

2

The following summarizes the evidence adduced at the suppression hearing.
3

did not seem combative, Johnson went over to speak to the alleged victim who appeared 

to be nodding and gesturing to the officers to indicate they had detained the right person. 

A few seconds after Johnson walked over to speak to the victim, she noticed Bernard 

physically struggling with defendant in an attempt to get defendant‘s hand behind his 

back. She did not hear any of the conversation between defendant and Bernard preceding 

the physical struggle. Johnson ran over and grabbed defendant‘s left arm, telling him to 

stop resisting and get his hands behind his back. Defendant continued to resist. Officer 

Ornstein arrived and assisted in struggling to control defendant. The three officers were 

able to push defendant‘s body forward, but everyone fell forward ―kind of like an ironing 

board.‖ As Johnson fell, her weight shifted and her wrist bent backward resulting in an 

injury—a chipped bone—in her hand. Eventually, the officers were able to handcuff 

defendant and stand him up. He continued to struggle and drag his feet to avoid being 

placed in the patrol car. 

B. Trial Court Ruling

Following the suppression hearing, the trial court granted the motion to suppress 

due to insufficient evidence to support defendant‘s arrest. It found that in the absence of 

facts explaining why Officer Bernard initiated defendant‘s arrest, the People failed to 

meet their burden of showing probable cause for the arrest. The court ordered suppressed 

a pocketknife found on defendant‘s person, all statements made by defendant during and 

following the unlawful arrest, and everything else that occurred after Officer Johnson 

first observed Bernard attempting to handcuff defendant. The court then dismissed the 

entire case for lack of evidence. 

II. DISCUSSION

The People do not contest the trial court‘s finding that no probable cause was 

shown to support defendant‘s arrest, nor do they challenge the suppression of either the 

pocketknife or any statements made by the defendant during and following his arrest. 

The People contend the trial court erred, however, in (1) suppressing everything that 

occurred after the arrest, including the testimony of any witnesses regarding the events 
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occurring after Officer Bernard attempted to handcuff defendant, and (2) dismissing the 

case on that basis for lack of evidence. We agree with the People on both counts.

―On appeal, we review the evidence in a light favorable to the trial court‘s ruling 

on the suppression motion. [Citations.] We uphold those express or implicit findings of 

fact by the trial court which are supported by substantial evidence. [Citations.] Insofar 

as the evidence is uncontradicted, we do not engage in a substantial evidence review, but 

face pure questions of law. [Citations.] We must independently determine whether the 

facts support the court‘s legal conclusions.‖ (People v. Long (1987) 189 Cal.App.3d 77, 

82–83.) We conclude in this case, they do not.

The correct mode of analysis was explained in People v. Cox (2008) 

168 Cal.App.4th 702 (Cox), which is directly on point: ―The general remedy available 

for a violation of one‘s Fourth Amendment rights is that the evidence discovered as a 

result of the violation is excluded. The question here is  ̳ ―whether, granting 

establishment of the primary illegality, the evidence to which instant objection is made 

has been come at by exploitation of that illegality or instead by means sufficiently 

distinguishable to be purged of the primary taint.‖ ‘ [Citation.] [¶] In analyzing whether 

the taint has been purged or dissipated, we look to  ̳the temporal proximity of the Fourth 

Amendment violation to the procurement of the challenged evidence, the presence of 

intervening circumstances, and the flagrancy of the official misconduct.‘ [Citation.] . . . 

[¶] Normally, in a case where evidence is uncovered following an illegal search, the 

search itself procures the evidence sought to be excluded. But it would be a curious use 

of language to say that the officers‘ detention of defendant (illegal though it might have 

been) procured the officers‘ subsequent observations of his resistance to arrest. Unlike 

tangible evidence that is uncovered when police conduct an unlawful search, defendant’s 

reaction here to being detained was not inevitable, but an independent decision he 

himself made, amounting to an intervening circumstance that cured the taint. [¶] . . . 

[¶] . . . Here, defendant chose of his own free will to resist and impede Officer Lannom’s 

search, and then chose to flee. Both of these choices were independent, intervening acts, 

sufficiently distinct from the illegal detention to dissipate the taint. We thus affirm the 
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trial court‘s ruling in denying defendant‘s motion to dismiss—not because (as the trial 

court found) defendant broke the law when he walked in the middle of the roadway, but 

rather because his resistance to arrest and attempted flight dissipated the taint created by 

the illegal detention.‖ (Id. at pp. 711–712, italics added, fn. omitted.)

Numerous cases follow the analysis in Cox. (See People v. Prendez (1971) 

15 Cal.App.3d 486, 487–488 [defendant‘s action in taking flight after an illegal entry into 

his motel room was an independent, intervening act, sufficiently distinct from the illegal 

entry to cure the taint and permit use of the evidence seized from him when he was 

caught]; In re Richard G. (2009) 173 Cal.App.4th 1252, 1262 [individual‘s decision to 

commit a new and distinct crime, even if made during or immediately after an unlawful 

detention, breaks the causal link between any constitutional violation and evidence of the 

new crime]; People v. Guillory (1960) 178 Cal.App.2d 854, 856 [evidence of attempt to 

bribe arresting officers after unlawful search and arrest was admissible because bribery 

attempt was a spontaneous, intervening act].) Numerous cases from other jurisdictions 

concur that evidence of an attack on officers in reaction to an illegal search or arrest is 

admissible notwithstanding the Fourth Amendment exclusionary rule. (See, e.g., People 

v. Villarreal (1992) 152 Ill.2d 368; Jones v. State (Miss. 2001) 798 So.2d 1241; In re 

B.A.M. (2008) 346 Mont. 49; People v. Townes (1976) 41 N.Y.2d 97; State v. Miskimins

(S.D. 1989) 435 N.W.2d 217; State v. Mierz (1995) 127 Wash.2d 460.)

In this case, the trial court went too far in suppressing the testimony of Officer 

Johnson and other potential witnesses concerning defendant‘s conduct in resisting arrest, 

as well as in dismissing the remaining charges, all of which concerned his conduct 

toward the arresting officers. Any witness observations of that conduct were the result of 

defendant‘s independent, intervening decision to resist arrest. Such evidence was not 

tainted by the illegality of the arrest, as determined by the trial court on the motion to 

suppress, nor did it constitute an exploitation of the illegality.

It may be that lack of probable cause will defeat the resisting arrest charges in 

issue. To sustain them, the People have the burden of proving the officer was lawfully

performing or attempting to perform his duties when defendant was arrested. (See 
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CALCRIM Nos. 2652, 2655, 2656.) Under CALCRIM No. 2670, ―[a] peace officer is 

not lawfully performing his or her duties if he or she is . . . unlawfully arresting or 

detaining someone . . . .‖ But the lawfulness of the officer‘s actions is a jury question to 

be decided based on the evidence presented at trial. (People v. Gonzalez (1990) 

51 Cal.3d 1179, 1217.) The fact that insufficient evidence of probable cause was 

mustered at the suppression hearing is not conclusive of that issue. Because testimony 

concerning defendant‘s actions in resisting arrest should not have been suppressed, and 

the charges against him are still provable, the dismissal order must be reversed and the 

charges reinstated.

III. DISPOSITION

The trial court‘s May 21, 2012 order suppressing evidence of defendant‘s 

postarrest conduct toward the arresting officers and dismissing the charges pending 

against him is reversed. Those portions of the order not in issue on this appeal are 

affirmed.

_________________________

Margulies, Acting P.J.

We concur:

_________________________

Dondero, J.

_________________________

Banke, J.