Mitchell v. Commonwealth

73 Va.App. 234

858 S.E.2d 415

Blake Andrew MITCHELL, Jr.

v.COMMONWEALTH of Virginia

Record No. 1976-18-1

Court of Appeals of Virginia.

JUNE 8, 2021

Erik A. Mussoni, Assistant Public Defender, for appellant.

Elizabeth Kiernan Fitzgerald, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: Judges Petty, Russell and Malveaux

OPINION BY JUDGE WESLEY G. RUSSELL, JR.

Blake Andrew Mitchell, Jr. was convicted of possession of cocaine and possession of hydrocodone. He argues on appeal that the trial court erred in denying his motion to suppress the evidence underlying his convictions because law enforcement lacked reasonable, articulable suspicion to stop the vehicle in which he was a passenger. For the following reasons, we disagree with Mitchell and affirm the judgment of the trial court.

BACKGROUND

"On appeal, we state the facts ‘in the light most favorable to the Commonwealth, giving it the benefit of any reasonable inferences.’ " Commonwealth v. White, 293 Va. 411, 413, 799 S.E.2d 494 (2017) (quoting Evans v. Commonwealth, 290 Va. 277, 280, 776 S.E.2d 760 (2015) ). "When considering whether to affirm the denial of a pretrial suppression motion, an appellate court reviews not only the evidence presented at the pretrial hearing but also the evidence later presented at trial." Hill v. Commonwealth, 297 Va. 804, 808, 832 S.E.2d 33 (2019) (quoting White, 293 Va. at 414, 799 S.E.2d 494 ).² Finally, in conducting our review, "[w]e also presume – even in the absence of specific factual findings – that the trial court resolved all factual ambiguities or inconsistencies in the evidence in favor of the prevailing party and gave that party the benefit of all reasonably debatable inferences from the evidence." Id.

So viewed, the evidence established that, around 1:00 a.m., on October 31, 2017, Officer Shane McCarthy of the Chesapeake Police Department was stopped at a stop sign. A vehicle travelling in the opposite direction passed McCarthy when it turned onto the street on which he was stopped. A streetlight was on the corner, and McCarthy was able to see the driver as the vehicle went by him.

McCarthy decided to "r[u]n the vehicle's tags" and learned that the registered owner of the vehicle was Ikeya Nellun. The report McCarthy received initially noted Nellun was subject to a "possible warrant," the existence of which was confirmed prior to the stop. In addition to identifying Nellun as the owner of the vehicle, the information McCarthy received included a description of Nellun as "a black female, 5’5", weighing 155 pounds." At the suppression hearing, McCarthy testified that "[t]he descriptors matched the driver from what I could see from my vehicle to their vehicle."

Based on his observation of the driver and the report, McCarthy made a U-turn and followed the car for about 100 yards. McCarthy explained that he "did the U-turn based on the warrant being returned in the actual system from DMV." McCarthy "compared the driver to the registered owner of the vehicle[, and b]ased on that, [he] initiated a traffic stop."³ The car stopped in response to McCarthy's having activated his emergency lights.

McCarthy approached the vehicle and told the driver why he had stopped the car. The driver told McCarthy that she was not Nellun, but was Keisha Hogan. Hogan generally matches the physical description McCarthy had received regarding Nellun, "a black female, [who is] 5’5" [tall], weighing 155 pounds." Hogan, who weighed 150 pounds at the time of the stop, also is "a black female, [who is] 5’5" " tall. During his conversation with Hogan, McCarthy observed that Mitchell, who was a passenger in the front seat, was not wearing a seatbelt.

Officer Barret Ring arrived on the scene to assist McCarthy and questioned Mitchell. Mitchell initially provided Ring false identifying information. During their exchange, Ring observed a pill container hanging from Mitchell's waistband. Upon learning Mitchell's actual identity, McCarthy discovered that he was "wanted," and the officers asked him to exit the vehicle. Mitchell resisted the officers; he knocked McCarthy's camera off, tried to move past him, and "made a throwing motion."

When Ring finally was able to secure Mitchell, Ring noticed that only the top of the pill container remained on Mitchell's waistband. McCarthy saw the container on the passenger-side floorboard of the car. From the pill container, he recovered materials that appeared to be controlled substances. On the ground where Mitchell had been removed from the vehicle, the officers found a baggie containing what appeared to be cocaine; the bag was not there prior to Mitchell's removal from the car. The top of the pill container later was found in the police car where Mitchell had been sitting. Forensic analysis confirmed that, among other controlled substances, the materials the officers recovered included cocaine and hydrocodone.

Mitchell moved the trial court to suppress the evidence of the drugs. Relying heavily on our unpublished decision in Worley v. Commonwealth, No. 1913-94-2, 1996 WL 31949 (Va. Ct. App. Jan. 30, 1996), he contended that the stop of the vehicle violated the Fourth Amendment because the information possessed by McCarthy at the time he initiated the stop did not provide him with reasonable, articulable suspicion that the car's registered owner was the driver of the car.⁴ In response, the Commonwealth relied upon our decision in Hoye v. Commonwealth, 18 Va. App. 132, 442 S.E.2d 404 (1994), arguing that, prior to initiating the stop, McCarthy had reasonable, articulable suspicion to initiate the stop because he knew there was a warrant for Nellun, he knew Nellun was the owner of the car, and the driver of the car matched the physical description of Nellun he had received.

McCarthy testified at the suppression hearing. In addition to McCarthy's testimony, the trial court viewed portions of the encounter that were recorded by McCarthy's body camera. Neither party sought to have the video footage marked as an exhibit, and it is not part of the record on appeal.

Based on what was before it, the trial court found that, prior to initiating the stop, McCarthy "had already started the process of punching in information. He got information back showing the warrant, and he got descriptors in that matched what he saw before he made the U-turn." "[The officer] saw her, and then he got the descriptors, which matched, and he put the stop on." The trial court found that McCarthy had sufficient "reasonable suspicion based on the specific and articulable facts as to the driver of the car, ... resembling, sufficiently enough, the person who ... owned the car...." Consequently, the trial court denied Mitchell's motion to suppress.

His motion to suppress having been denied, Mitchell elected to enter conditional guilty pleas to the two felony charges he faced.⁵ In exchange for his pleas, the Commonwealth agreed to ask the trial court to nolle prosequi four misdemeanor charges that Mitchell faced.⁶ In entering the conditional guilty pleas pursuant to Code § 19.2-254,⁷ Mitchell, with the agreement of the Commonwealth and approval of the trial court, "preserv[ed] his right to appeal the [trial c]ourt's prior ruling on his motion to suppress." The trial court accepted Mitchell's pleas, convicted him of one count of possession of cocaine and one count of possession of hydrocodone, and sentenced him to a total of ten years imprisonment, with all but one year, five months suspended.

Mitchell appealed to this Court, asserting that the trial court erred in denying his motion to suppress. In a one-judge denial order issued pursuant to Code § 17.1-407(C), a judge of this Court denied the petition for appeal, concluding that Mitchell's argument in his petition was different from the argument he made below and that, in any event, the failure to include the body camera footage considered by the trial court in the record deprived this Court of the ability to review fully and fairly the basis for the trial court's conclusions. See Mitchell v. Commonwealth, No. 1976-18-1 (Va. Ct. App. Sept. 6, 2019).

Although waiving the right to present his argument orally, Mitchell, pursuant to Code § 17.1-407(D), sought review of the denial order by a three-judge panel of this Court. On October 11, 2019, the three-judge panel denied the petition for appeal "[f]or the reason[s] previously stated[.]" Mitchell v. Commonwealth, No. 1976-18-1 (Va. Ct. App. Oct. 11, 2019).

Mitchell then appealed to the Virginia Supreme Court. In an unpublished order, the Supreme Court concluded that Mitchell's trial court arguments were "broad enough" to allow him to make the argument he raised on appeal and that the body camera footage was unnecessary to resolve the issue he raised. Mitchell v. Commonwealth, No. 191464 (Va. May 22, 2019). Accordingly, the Supreme Court reversed the judgment of this Court and directed that our prior orders "be vacated and [that] the case [be] remanded for further consideration in light of the decision of the United States Supreme Court in Kansas v. Glover , ––– U.S. ––––, 140 S. Ct. 1183, 206 L.Ed.2d 412 (2020) [,]" which had been decided while Mitchell's petition for appeal was pending in the Virginia Supreme Court. Id.

On remand in this Court, Mitchell asserts that McCarthy lacked reasonable, articulable suspicion to justify stopping the vehicle in which Mitchell was a passenger. Specifically, he argues that "[t]he trial court erred in denying [his] Motion to Suppress the evidence obtained as a result of an unlawful seizure" because McCarthy lacked a sufficient factual basis to "believe that the driver of the vehicle was the owner of the vehicle."⁸

ANALYSIS

I. Standard of review

"Absent clear evidence to the contrary in the record, the judgment of a trial court comes to us on appeal with a presumption that the law was correctly applied to the facts." Barkley v. Commonwealth, 39 Va. App. 682, 690, 576 S.E.2d 234 (2...