Filed 8/30/17 P. v. St. Onge CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

I. INTRODUCTION

Defendant and appellant Jordan St. Onge challenges the denial of a pre-plea motion to suppress evidence found on his person and in his car following what he contends was an unlawful pat search. St. Onge also attacks certain probation conditions prohibiting possession of firearms, ammunition, and concealable weapons, and prohibiting use or possession of dangerous drugs, narcotics, and narcotics paraphernalia on the grounds that both conditions are unconstitutionally vague. We shall reverse the order denying his motion to suppress without reaching the remaining issues.

II. FACTS

On October 3, 2014 at approximately 6:15 p.m., Contra Costa County Sheriff’s Deputies Fitzgerald and Rossi were driving on North Broadway while on patrol duty in Bay Point. Deputy Rossi drove a marked patrol vehicle with Deputy Fitzgerald as passenger. They were doing “proactive policing” and “target enforcement” of that general location, where there had been several recent thefts, narcotics sales, and shootings, and which they considered to be a high crime area. As the deputies drove northbound on North Broadway, Deputy Fitzgerald saw a male, later identified as St. Onge, sitting in the front passenger seat of a parked blue Chevy sedan.

Deputy Fitzgerald noticed that, while he and Rossi drove past the parked Chevy, St. Onge “seemed to stop what he was doing and just freeze, and that struck me as suspicious,” and, “t kind of appeared as if by freezing it was kind of like his way of saying you can’t see me if I’m not moving.” Fitzgerald further explained, “I have driven up and down that street numerous times, and it’s not regular for people to just be sitting in vehicles. They’re generally either in residences or walking from one area to another.” Deputy Rossi made a U-turn and parked directly behind the Chevy. He did not activate the patrol car’s lights or siren.

Where, as here, “a motion to suppress is submitted to the superior court on the preliminary hearing transcript, the appellate court disregards the findings of the superior court and reviews the determination of the magistrate who ruled on the motion to suppress, drawing all presumptions in favor of the factual determinations of the magistrate, upholding the magistrate’s express or implied findings if they are supported by substantial evidence, and measuring the facts as found by the trier against the constitutional standard of reasonableness.” ([i]People v. Thompson (1990) 221 Cal.App.3d 923, 940.) The appellate court then exercises its independent judgment in determining whether the search or seizure was reasonable on the facts found by the magistrate. (People v. Glaser (1995) 11 Cal.4th 354, 362; People v. McDonald (2006) 137 Cal.App.4th 521, 529.)

B. Applicable Law

The background principles at work here are well-established. The Fourth Amendment provides, “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . .” (U.S. Const., 4th Amend.) “[W]herever an individual may harbor a reasonable ‘expectation of privacy,’ [citation], he is entitled to be free from unreasonable governmental intrusion.” (Terry v. Ohio (1968) 392 U.S. 1, 9 (Terry).) The right, however, must be interpreted in context, since “ ‘what the Constitution forbids is not all searches and seizures, but unreasonable searches and seizures.’ ” (Ibid.) The question in each case is “the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security.” (Id. at p. 19.) Reasonableness in the context of the Fourth Amendment depends “ ‘on a balance between the public interest and the individual’s right to personal security free from arbitrary interference by law officers.’ ” (Pennsylvania v. Mimms (1977) 434 U.S. 106, 109 (Mimms).) In the context of detentions and searches based on less than probable cause—sometimes called “Terry stops”—the concept of reasonable suspicion plays a leading role.

1. Reasonable Suspicion in General

For a Terry stop to comply with the Fourth Amendment, the detaining officer must act on a reasonable suspicion that criminal activity “may be afoot.” (Terry, supra, 392 U.S. at p. 30.) Under this standard, the officer may make a Terry stop based on “reasonable, articulable suspicion that the person has been, is, or is about to be engaged in criminal activity.” (United States v. Place (1983) 462 U.S. 696, 702.) At minimum, “[t]he officer [making a Terry stop] . . . must be able to articulate something more than an ‘inchoate and unparticularized suspicion or “hunch” ’ (United States v. Sokolow (1989) 490 U.S. 1, 7, quoting Terry, supra, 392 U.S. at p. 27.) Instead, “[p]olice ‘must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion [on a citizen’s liberty interest].’ ” (United States v. Elmore (2d Cir. 2007) 482 F.3d 172, 178–179, quoting Terry, supra, 392 U.S. at p. 21.) In deciding whether reasonable suspicion exists in a particular situation, an officer may “draw on [his] own experience and specialized training to make inferences from and deductions about the cumulative information available to [him] that ‘might well elude an untrained person.’ ” (United States v. Arvizu (2002) 534 U.S. 266, 273 (Arvizu).)

In general, reasonable suspicion requires an individualized suspicion of wrongdoing. (City of Indianapolis v. Edmond (2000) 531 U.S. 32, 37 (Edmond), citing Chandler v. Miller (1997) 520 U.S. 305, 308.) While the United States Supreme Court has recognized certain narrow exceptions to this requirement,^[2] there is no recognized exception allowing a Terry stop for the general purpose of controlling crime. (Edmond, at pp. 37–40.)^[3] Courts reviewing investigatory stops for reasonable suspicion must look to “whether the detaining officer has a ‘particularized and objective basis’ for suspecting legal wrongdoing.” (Arvizu, supra, 534 U.S. at p. 273, quoting United States v. Cortez (1981) 449 U.S. 411, 417–418.) Overall context must always be kept in mind, since the reasonable suspicion test is designed to accommodate real-world law enforcement realities where officers must be alert to a myriad of clues to human behavior. It is often said, therefore, that “the totality of the circumstances—the whole picture—must be taken into account.” (Cortez, supra, 449 U.S. at p. 417.)

2. Protective Frisks for Weapons

The High Court has recognized that an officer making a Terry stop “should not be denied the opportunity to protect himself from attack by a hostile suspect.” (Adams v. Williams (1972) 407 U.S. 143, 146.) “[F]or his own protection and safety, [an officer] may conduct a patdown to find weapons that he reasonably believes or suspects are then in the possession of the person he has accosted.” (Ybarra v. Illinois (1979) 444 U.S. 85, 93 (Ybarra).) The purpose of the pat search is to “determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm.” (Terry, supra, 392 U.S. at p. 24.) Just as reasonableness is the touchstone for the Fourth Amendment generally, reasonable suspicion provides the standard at each stage of a Terry stop. In application, this means that a frisk must be a “carefully limited search of the outer clothing of [a person] in an attempt to discover weapons which might be used to assault [the officer].” (Terry, supra, 392 U.S. at p. 30.)

Officers are not automatically entitled to frisk every person they have justification to detain under Terry. (Terry, supra, 392 U.S. at p. 24; People v. Parrott (2017) 10 Cal.App.5th 485, 495.) “Nothing in Terry can be understood to allow a generalized ‘cursory search for weapons’ or, indeed, any search whatever for anything but weapons.” (Ybarra, supra, 444 U.S. at pp. 93–94.) A frisk is only lawful “[w]hen an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others.” (Terry, supra, 392 U.S. at p. 24.) “[T]o proceed from a stop to a frisk, [an] . . . officer must reasonably suspect that the person stopped is armed and dangerous.” (Johnson, supra, 555 U.S. at pp. 326–327; see People v. Medina (2003) 110 Cal.App.4th 171, 176 (Medina).) “The ‘narrow scope’ of the Terry exception does not permit a frisk for weapons on less than reasonable belief or suspicion directed at the person to be frisked . . . .” (Ybarra, supra, 444 U.S. at p. 94.)

Thus, the justification for going beyond a stop and taking the more intrusive step of conducting a frisk—like the justification for the stop itself—must be based on objective, articulable facts, not simply an officer’s subjectively stated fear. And since “[t]he purpose of this limited search is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence” (Adams, supra, 407 U.S. at p. 146), a frisk must be “limited in scope to this protective purpose” (ibid.), and “strictly” confined “ ‘to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby.’ ” (Minnesota v. Dickerson (1993) 508 U.S. 366, 373, quoting Terry, supra, 392 U.S. at p. 26.)

3. The Exclusionary Rule

Evidence obtained through an unconstitutional search or seizure is inadmissible in court under the exclusionary rule. (Mapp v. Ohio (1961) 367 U.S. 643, 655.) “Such evidence includes not only what was seized in the course of the unlawful conduct itself—the so-called ‘primary’ evidence [citations]—but also what was subsequently obtained through the information gained by the police in the course of such conduct—the so-called ‘derivative’ or ‘secondary’ evidence [citations].” (People v. Williams (1988) 45 Cal.3d 1268, 1299 (Williams).) Primary evidence is automatically suppressed, whereas secondary evidence is suppressed only if it is “ ‘tainted’ ” by the unlawful conduct. (Ibid.)

The defendant bears the initial burden of showing the search was unlawful. (Williams, supra, 45 Cal.3d at p. 1300.) Once the defendant has shown a search was conducted without a warrant, the burden shifts to the prosecution to show the search was reasonable. (Ibid.) If the prosecution fails to meet that burden, the primary evidence obtained in the search is automatically suppressed, and the defendant then bears the burden of showing that the secondary evidence was “ ‘tainted’ ” by, or causally linked to, the unconstitutional search, and that it was discovered by exploitation of that illegality. (Ibid.) If the defendant makes this showing, the burden shifts to the prosecution to show that the taint has been “ ‘purged’ ” and the evidence is admissible in spite of the unlawful nature of the search. (Ibid.)

“Ever since its inception, the rule excluding evidence seized in violation of the Fourth Amendment has been recognized as a principal mode of discouraging lawless police conduct.” (Terry, supra, 392 U.S. at p. 12.) Moreover, the exclusionary rule allows the court to avoid being party to unconstitutional conduct, by rejecting the fruits of unjustified searches as evidence in judicial proceedings. (Id. at pp. 12–13.)

C. The Magistrate’s Ruling Denying the Motion to Suppress Evidence

The magistrate granted the motion to suppress the methamphetamine found in St. Onge’s trunk, but denied suppression of the Ruger pistol and other evidence found during the frisk and the subsequent searches of his clothing and car. Deputy Fitzgerald’s initial contact with St. Onge up to the point he asked St. Onge to step out of the car was consensual, the Magistrate found, and therefore it did not implicate the protections of the Fourth Amendment. He found, further, that Fitzgerald’s order to step out of the car was a detention justified by St. Onge’s evasiveness when answering questions and failure to consistently spell the name he gave the officer. Although he saw the pat search as “borderline,” he ultimately found it lawful because St. Onge may have been a “fugitive for who knows what,” “was evasive,” and “was coming out of the distinctly cluttered car in this high crime area.”

The pat search turned up the Ruger and an incompatible type of ammunition, and those discoveries in turn gave Deputy Fitzgerald probable cause to search the car, including the trunk, for another gun. Even though the trunk search was justified, the magistrate suppressed the methamphetamine evidence, finding that, when Deputy Fitzgerald opened the small zipper bag containing the drugs, he could not reasonably have believed the bag contained ammunition, let alone a gun.

D. St. Onge’s Challenges to the Frisk

St. Onge does not contest that Deputy Fitzgerald had the right to detain him briefly by ordering him out of the car, based on his evasive answers to questions and inconsistent spelling of the false name. He contends, however, that after ordering him out of the car, Fitzgerald had no right to frisk him. The position he takes on this appeal rests fundamentally on the principle, set out above, that an officer does not have the automatic right to pat search a detainee, but may only conduct a frisk where justified by specific, articulable facts supporting a reasonable suspicion that the person is armed and dangerous. (See Terry, supra, 392 U.S. at p. 24; Medina, supra, 110 Cal.App.4th at p. 176.) He advances essentially two lines of argument: 1) the fact that the detention occurred in a high crime area cannot alone justify a pat search; and 2) nothing about St. Onge’s conduct, appearance, or suspected criminal behavior reasonably suggested that he was armed and dangerous. We address each argument in turn.

1. Deputy Fitzgerald Could Not Frisk St. Onge Simply Because the Detention Occurred in a High Crime Area

St. Onge contends, and we agree, that the fact this encounter occurred in a high crime area cannot alone justify Deputy Fitzgerald’s decision to pat search him.

In Medina, supra, 110 Cal.App.4th at p. 178, the Court of Appeal held that “[b]ecause the decision to restrain Medina’s hands and search him was based solely on his presence in a high crime area late at night, both the detention and the search were unlawful.” There, the officer detained and frisked the defendant after pulling him over for a broken taillight because it was “ ‘standard procedure’ ” to conduct weapons searches in the high crime area late at night. (Id. at p. 177.) The Medina court explained that the time and location of an encounter are, by themselves, insufficient to cast reasonable suspicion on an individual. (Ibid.) Because many people must live or work in high crime neighborhoods, it would violate their constitutional rights to automatically subject them to searches simply because they happen to be in such an area. (Ibid.) This rule applies with equal force to reasonable suspicion for detentions and for pat searches. (Ibid.)

On the other hand, Medina acknowledged that, even though an individual’s presence in a high crime area is not, without more, enough to justify a frisk, it is one appropriate consideration in assessing reasonable suspicion. (Medina, supra, 110 Cal.App.4th at pp. 177–178; see People v. Souza (1994) 9 Cal.4th 224, 240.) Also pertinent is the time of day or night. (Medina, supra, at p. 177.)

Here, St. Onge was detained and frisked at about 6:15 p.m., in daylight, in a high crime area. Medina makes clear that St. Onge’s presence in a high crime area cannot, by itself, justify a pat search, but that it is one relevant factor that can contribute to reasonable suspicion that a person is armed and dangerous. (Medina, supra, 110 Cal.App.4th at p. 177.)

2. Nothing About St. Onge’s Conduct, Appearance, or Suspected Criminal Behavior Reasonably Suggested That He Was Personally Armed and Dangerous

St. Onge next argues, and here too we must agree, that nothing about his appearance, behavior, or suspected criminal activity gave rise to a reasonable suspicion that he was armed and dangerous.

In People v. Dickey (1994) 21 Cal.App.4th 952, 956 (Dickey), the appellate court held that a frisk conducted without specific, articulable facts supporting a suspicion the defendant was armed and dangerous was an unlawful search. There, the officer approached the defendant and a passenger, who were sitting in a car in the middle of a one-lane dirt road, with the engine running. (Id. at p. 954.) The officer noticed the defendant making “ ‘furtive’ ” movements in the driver’s seat. (Ibid.) Upon questioning, the defendant gave his real name but was unable to produce written identification; he stated his reason for being there was to admire the view; and he twice refused the officer’s request to search the car. (Ibid.) The officer ordered the defendant and passenger from the car, and with defendant’s permission, searched a backpack in the car and found a film canister containing baking soda, which the officer knew was a cutting agent for narcotics. (Id. at p. 955.) At that point, the officer decided to pat search the defendant because, based on the factors he had already observed, and the fact that the defendant appeared nervous, he concluded the defendant “ ‘potentially may have been armed.’ ” (Ibid.) The Court of Appeal held the frisk was unlawful because none of the circumstances the officer observed, considered singly or in combination, supported a reasonable belief the defendant was armed and dangerous. (Id. at p. 956.) The Dickey court observed, “[w]ithout ‘specific and articulable’ facts which show that the suspect may be armed and dangerous, these conclusions add nothing. In every encounter with a citizen by the police, the citizen may potentially be armed.” (Ibid.)

As discussed, in Medina, supra, 110 Cal.App.4th at p. 178, a pat search following a traffic stop for a broken taillight was unconstitutional because the decision was based solely on the defendant’s presence in a high crime area late at night. There, the officer was unable to articulate any facts about the individual he pulled over that gave rise to a reasonable suspicion that person was armed. (Id. at p. 175.)

On the other hand, there are many cases holding pat searches were justified based on specific, articulable facts supporting a reasonable suspicion the defendant was armed and dangerous. In Terry, supra, 392 U.S. at page 28, the United States Supreme Court held an officer’s pat search was lawful after he witnessed Terry and two other men pacing up and down a street and repeatedly peering into the same store window, conduct the officer believed suggested the men were planning a robbery. The frisk was justified for officer safety because the officer had observed behavior indicative of a crime that would be likely to involve a weapon. (Ibid.)

Applying the Terry rule, in Mimms, supra, 434 U.S. at pages 107, 111–112, the United States Supreme Court held a frisk was proper when, during a traffic stop for an expired license plate, the officer ordered the defendant out of his vehicle and noticed a large bulge under his jacket that the officer believed could be a weapon. The bulge in the jacket was sufficient evidence to support a reasonable belief the defendant was armed. (Id. at p. 112.)

A detention and immediate frisk were lawful in People v. Miles (1987) 196 Cal.App.3d 612, 614, 618 (Miles), when the officer noticed a bulge or heavy object in the defendant’s jacket upon approaching him in a parking lot where the officer had just received a call about suspicious activity. The officer responded to a call from a restaurant manager about several men walking around the parking lot and looking in the windows; the manager was also concerned because there had been a recent shooting in that same lot. (Id. at pp. 614–615.) The combination of these factors supported a reasonable suspicion that the defendant had a concealed weapon in his jacket pocket. (Id. at p. 618.)

In People v. Limon (1993) 17 Cal.App.4th 524, 529–531, 535 (Limon), the Court of Appeal held a frisk was lawful based on the officer’s observation of what appeared to be a hand-to-hand exchange in a carport where the officer knew drugs were commonly sold. The propensity of drug dealers to carry weapons, coupled with the officer’s observation of possible drug selling activity, supported a reasonable inference the defendant was armed. (Id. at pp. 534–535.)

A pat search was justified in People v. Collier (2008) 166 Cal.App.4th 1374, 1376 (Collier) when, during a traffic stop, the officer smelled marijuana coming from the car and, upon ordering the defendant out of the car, saw that the defendant was larger than the officer and was wearing oversized clothing that could conceal a weapon. Again, the reasonable suspicion the defendant was armed and dangerous stemmed from the officer’s suspicion that drugs were present, since “ ‘guns often accompany drugs.’ ” (Id. at p. 1378.)

In this case, Deputy Fitzgerald testified he frisked St. Onge immediately after ordering him out of the car because he was concerned for his own safety. Specifically, he testified he was concerned “[b]ecause [St. Onge] was in a vehicle [and] he had access to some areas that I couldn’t see the potential for having access to a weapon was high. The area that I was working that day is a high crime area. We have at that time had an increased number of calls for service regarding shootings. [¶] So with the totality of all of that I felt that I wanted to search the person for weapons before I walked away from him to check his identity . . . .”

As noted above, St. Onge’s presence in a high crime area cannot alone justify a pat search, but it may properly contribute to the officer’s determination that he could be armed and dangerous. (Medina, supra, 110 Cal.App.4th at p. 177.) Deputy Fitzgerald’s testimony about increased calls to respond to shootings in the area supports his knowledge of the high crime nature of the area, but it does not suggest that St. Onge, individually, was armed and dangerous. This was not a situation like that in Miles, where the officer approached the defendant in response to a call reporting suspicious people walking around a parking lot at that moment, and there had recently been a shooting in the same parking lot. In contrast to Miles, in this case there was no call or any other information alerting Fitzgerald that St. Onge was behaving suspiciously or could be armed. Fitzgerald simply knew that the area, in general, was dangerous.

Unlike the defendants in Terry, St. Onge was not engaged in behavior suggestive of involvement in a crime involving a weapon. Though Deputy Fitzgerald testified it was “not common for people to be just sitting in a vehicle” in that area, he did not testify that St. Onge appeared to be planning a robbery or engaged in any other dangerous criminal activity that would suggest he was carrying a weapon. Moreover, Deputy Fitzgerald did not notice anything about St. Onge or the Chevy, before the frisk, that suggested St. Onge was transporting or selling drugs. Unlike Limon and Collier, where a reasonable inference the defendant was carrying or selling drugs supported a reasonable suspicion he was armed, here, Fitzgerald noticed no sign of drugs before he frisked St. Onge.

In fact, the reason Deputy Fitzgerald said he believed that St. Onge, specifically, was armed, was because St. Onge had been sitting in a cluttered car with access to areas Fitzgerald could not see. Those were certainly important objective considerations justifying the detention itself, but they did not justify the frisk. St. Onge had already stepped out of his car, thus neutralizing the concern about access to areas Deputy Fitzgerald could not see, when the frisk took place. Fitzgerald testified that he “asked [St. Onge] to step out of the car so [he] could get him away from that area.” Deputy Fitzgerald also testified he did not see any weapons on or near St. Onge when he was still seated in the Chevy, or after he stepped out. Fitzgerald did not testify that he saw St. Onge reach into any of the bags at any point. Once St. Onge was standing outside the car, Fitzgerald did not notice any bulges in St. Onge’s clothing that would suggest a weapon, nor did he observe loose-fitting clothing that could easily conceal a weapon. Those justifications for the pat searches in Mimms, Collier, and Miles are not present here.

Accepting that St. Onge’s presence in a parked car, his “freezing” when he saw the deputies, and his evasive answers to questions were sufficient justification for him to be briefly detained, they still do not permit a reasonable inference he was armed. In his testimony, Deputy Fitzgerald reported subjective concern for his safety, but we must of course look to objective facts; he also mentioned the “totality” of the circumstances, but that word is not a talisman which overcomes the need for specifics upon its mere invocation. Like the defendant in Dickey, who was sitting in his car in the middle of the road and making “furtive” gestures when the officer saw him, St. Onge behaved in a way that attracted Deputy Fitzgerald’s suspicion. Also like the defendant in Dickey, St. Onge gave evasive answers to questions, which justified further investigation. Even so, as in Dickey, none of the circumstances Deputy Fitzgerald noticed, supported a reasonable belief St. Onge was armed, whether considered singly or in combination.

The Attorney General points out that the misspelled name gave rise to a reasonable suspicion that St. Onge had outstanding warrants, and it is also reasonable to believe that a person trying to evade warrants may carry a weapon. As St. Onge argues, however, the giving of a false name does not create a reasonable inference that the person is a fugitive fleeing from apprehension for a violent crime. A person may have parking tickets, probation status, immigration concerns, or outstanding warrants for non-violent crimes that he wishes to conceal from an officer. Making any false statement to an officer is itself illegal and certainly justifies a suspicion that a person may be involved in some form of criminal activity, but does not reasonably indicate he is armed and dangerous. Tempting as it may be in hindsight to look past the absence of sufficient objective circumstances to justify an immediate frisk once St. Onge was detained—given that Deputy Fitzgerald’s hunch about the presence of a weapon turned out to be correct—the ends do not justify the means in Fourth Amendment analysis.

We do “not lightly second-guess a police officer’s decision to perform a patdown search for officer safety. The lives and safety of police officers weigh heavily in the balance of competing Fourth Amendment considerations.” (Dickey, supra, 21 Cal.App.4th at p. 957.) Because interactions between citizens and police officers range from friendly conversations to deadly encounters (see Terry, supra, 392 U.S. at p. 13), officers must have the discretion to respond quickly and effectively to dangerous situations as they unfold. Nonetheless, Terry requires specific, articulable facts supporting a reasonable suspicion the defendant is armed and dangerous before frisking for weapons (id. at pp. 17, 21)—those facts are absent on this record, and thus the demands of the Fourth Amendment dictate the outcome of the issue presented here.

E. Suppression of Evidence Under the Exclusionary Rule

Because there were no specific, articulable facts supporting a reasonable suspicion that St. Onge was armed and dangerous before Deputy Fitzgerald conducted the pat search, the search was unlawful. Under the exclusionary rule, the primary evidence of possession of a weapon—the Ruger pistol that Deputy Fitzgerald found during the frisk—must be suppressed. Once the Ruger is suppressed, there is no evidence to support St. Onge’s three felony firearm possession convictions. In addition, because discovery of the Ruger gave Deputy Fitzgerald probable cause to arrest St. Onge and conduct a custody search, the .45 caliber bullet, four empty pistol magazines, bulletproof vest, handcuffs, and two sheathed knives were obtained by exploitation of the illegality of the frisk. Accordingly, that evidence must also be suppressed.

Where, as here, “a defendant appeals from a judgment on a plea of guilty following denial of a motion to suppress evidence material to the charge against him and the appellate court determines denial of his motion was error, the judgment will be reversed with instructions to set aside the plea upon which it was entered. [Citation.] The posture of the case under such circumstances eliminates the requirement a defendant on appeal must establish the error of which he complains was prejudicial because it is impossible to apply the test of prejudice, i.e., the probability of the outcome if the motion had been granted.” (People v. Fry (1969) 271 Cal.App.2d 350, 358; see also People v. Miller (1983) 33 Cal.3d 545, 551.)

V. DISPOSITION

We reverse the order denying St. Onge’s motion to suppress. Because the Attorney General does not dispute that the only evidence supporting St. Onge’s three felony firearm convictions was the Ruger obtained during the unlawful frisk, we also reverse the order denying the section 995 motion. The case is remanded with directions to set aside St. Onge’s guilty plea.

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Streeter, J.

We concur:

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Ruvolo, P.J.

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Reardon, J.

A146468/People v. St. Onge