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Summary and Analysis of Court of Appeals Published Opinion from 6/8/2021

by | Jun 9, 2021 | The Virginia Appellate Lawyer’s Court of Appeals of Virginia Blog |

Blake Andrew Mitchell, Jr. v. Commonwealth of Virginia is a published opinion from the Court of Appeals from a case previously refused an appeal, but which was remanded following an appeal to the Supreme Court in the rare instance of a “GVR” order.  A GVR, if you are not familiar with the term means that upon review of the petition for appeal, and without need of further briefing or argument, the Supreme Court “grants the petition, vacates the judgment of the lower court, and remands the case to that court for further proceedings” consistent with instructions given by the Supreme Court.  In this case, those instructions were “for further consideration in light of the decision of the United States Supreme Court in Kansas v. Glover, ___ S. Ct. ___, No. 18-556, 2020 WL 1668283 (U.S. Apr. 6, 2020)[,]” which had been decided while Mitchell’s petition for appeal was pending in the Virginia Supreme Court.  The issue is whether evidence obtained following the stop of a vehicle in which Mitchell was a passenger should have been suppressed because the police had an insufficient basis for stopping the vehicle.

The incident happened in the wee hours before dawn on All Hallows’ Eve of 2017.  An officer observed a vehicle being driven in a lawful manner by a black female.  For reasons not disclosed in the record, the officer decided to “run the plates” of the vehicle, and learned that the registered owner, a black female whose “descriptors matched the driver from what [the officer] could see from [his] vehicle to their vehicle,” was the subject of a “possible warrant.”  Activating his emergency lights, the officer stopped of the vehicle.

The driver identified herself as someone other than the registered owner of the vehicle, although the officer stated that he again observed that driver matched the “descriptors” of the registered owner.  The officer also observed that Mitchell was not wearing a safety belt.

Shortly after the stop began, another officer arrived and began to question Mitchell through the passenger side window while the first officer questioned the driver.  The second officer observed a “pill container” hanging from Mitchell’s waistband.  Meanwhile, the first officer returned to his cruiser and learned that Mitchell was wanted on an outstanding warrant.

When the officers directed Mitchell to exit the vehicle, he “resisted them,” and made a “throwing motion.”  When Mitchell was subdued, the officers noticed that only the top of the pill container was still attached to Mitchell’s waistband.  The bottom of the pill container was found on the floorboard of the passenger seat and contained “what appeared to be controlled substances.”  Officers also found a plastic baggie of “what appeared to be cocaine” on the ground near where Mitchell had been standing.  Laboratory analysis confirmed that the substances were hydrocodone and cocaine.

Mitchell sought to suppress the evidence on the ground that the officer’s knowledge that the registered owner of the vehicle was potentially the subject of a warrant was not sufficient to permit the stop because the officer lacked sufficient reason to believe the driver was the registered owner.  The circuit court refused the motion, finding that the physical similarity between the driver and the description of the registered owner made the stop reasonable.

We pause here to play Monday morning quarterback.  In my view, defense counsel made two errors here.  First, the Court of Appeals noted that counsel conceded that the registered owner potentially being the subject of a warrant was sufficient to permit the stop if the vehicle was being driven by the registered owner.  I have to say that there is a wide gap, in my view, between definitely being the subject of warrant and potentially being so.  In this day of ultra-fast communication, I don’t think it is unreasonable to assert that the police should know whether a warrant is outstanding or not.  If Walmart can upload its sales data in real time, police and court records should be just as current or nearly so.

The second error, again with the benefit of hindsight, is that counsel apparently did not argue that once the officer had verified the identity of the driver (and likewise observed that the other passenger was clearly not a slightly built female), the basis for the stop ended.  Mitchell wasn’t wearing his safety belt, but the vehicle was also not moving, and there is no evidence that it wasn’t buckled when the vehicle was in motion.  I would have to check the legislative history to see if October 31, 2017, falls into the window during which not wearing a safety belt was a primary basis for a stop (I think it was), but even so, I can’t imagine the officer was going to hold the vehicle for that reason.

Resuming our main thread, we already know that Mitchell appealed the overruling of the suppression motion to the Court of Appeals and had his petition denied, then Glover was decided at some point while Mitchell’s further appeal to the Supreme Court was pending, occasioning the remand to the Court of Appeals.  In its opinion following remand, the Court of Appeals notes that Glover actually supports the overruling of the suppression motion because the 8 justice majority rejected the argument where the police know only that a registered driver has some impediment to being free and driving around (in Glover the registered owner — who was in fact the driver — had a suspended license, but argued that the officer couldn’t be sure that the driver was the registered owner) this does not necessarily lead to an unlawful stop.  Rather, the Court of Appeals notes, like any other traffic stop, the issue is whether the totality of the circumstances support the reasonable, articulable suspicion necessary to affect an investigatory stop.  Here, the police knew that the driver was a slightly built black female and so was the registered owner who was potentially a fugitive, and that was a sufficient basis for an investigatory stop.  Q.E.D.

Now let’s return to the Monday morning quarterbacking.  The Court of Appeals seemed troubled not at all by the less than certain nature of there being an open warrant for the registered owner of the vehicle.  Indeed the Court emphasizes “the existence of which was confirmed prior to the stop” — the “of which” apparently referring to the warrant for the car’s owner.  This sentence may lead the reader of the opinion to presume that the existence of an actual warrant was confirmed, however later in the opinion it is clear that what was “confirmed” was that there was a “possible warrant.”

As to whether the argument that the stop was lawful only until the officer was able to confirm that the registered owner was not in the vehicle, well I must concede that there are certain problems with that approach.  First, events sort of overtook the initial basis for the stop when the second officer arrived and began what was strictly speaking a consensual conversation with Mitchell.  Second, while one might argue that, since the second officer had not communicated any information regarding his suspicions, the first officer had no business running Mitchell’s name after learning that the driver was who she claimed to be (and had no warrants), the officer was certainly not breaking any laws by doing so any more than when he ran the plates. Finally, the officers probably would have been justified in holding the vehicle longer to verify that the driver had permission from the owner to be in possession of the vehicle — that’s maybe a bit of a stretch, but perhaps the issue will be raised in another case someday.