COURT OF APPEALS OF VIRGINIA

Present: Judges Petty, Russell and Malveaux

Argued by videoconference

BLAKE ANDREW MITCHELL, JR.

OPINION BY

v. Record No. 1976-18-1 JUDGE WESLEY G. RUSSELL, JR.

JUNE 8, 2021

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE

Rufus A. Banks, Jr., Judge1

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

Elizabeth Kiernan Fitzgerald, Assistant Attorney General (Mark R. 

Herring, Attorney General, on brief), for appellee.

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 (2017)

(quoting Evans v. Commonwealth, 290 Va. 277, 280 (2015)). “When considering whether to 

affirm the denial of a pretrial suppression motion, an appellate court reviews not only the 

1

Judge Banks presided over the plea hearing and entered the sentencing order in this 

case. The Honorable John W. Brown presided at the hearing on the motion to suppress that is 

the subject of this appeal.

PUBLISHED
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evidence presented at the pretrial hearing but also the evidence later presented at trial.” Hill v. 

Commonwealth, 297 Va. 804, 808 (2019) (quoting White, 293 Va. at 414).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 

2 Although there was not a contested “trial” because Mitchell entered conditional guilty 

pleas, the parties entered into a written stipulation of facts that was presented to the trial court at 

the guilty plea hearing. Accordingly, our review considers both the evidence adduced at the 

suppression hearing and the facts contained in the written stipulation.
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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 

3

In addition to providing McCarthy a written description of Nellun, the DMV report also 

supplied a picture of her. Based on the testimony and the trial court’s factual findings, McCarthy 

received the written description first and initiated the traffic stop after reading that description 

but before viewing the picture. Neither the picture nor the footage from McCarthy’s body 

camera nor any other depiction of either Nellun or the driver are available for our review as none 

are part of the record. There apparently are sufficient similarities between the driver of the car 

and the picture of Nellun such that the picture did not eliminate the possibility that Nellun was 

the driver. We note, however, that, because McCarthy had not seen the picture when he initiated 

the seizure of the vehicle, the picture cannot be used to justify the stop. See Mason v. 

Commonwealth, 291 Va. 362, 368 (2016) (recognizing that “the facts and circumstances on 

which the officer relies [to justify a stop] must have been available to him at the moment of the 

stop, not discovered thereafter”).
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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 (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 (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 

4 Mitchell concedes that the report of the potential warrant for Nellun potentially gave 

McCarthy reason to stop the car but only if he had sufficient reason to believe that Nellun was 

the driver.
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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 

5 Mitchell’s conditional guilty pleas were entered into pursuant to North Carolina v. 

Alford, 400 U.S. 25 (1970), which “allows ‘criminal defendants who wish to avoid the 

consequences of a trial to plead guilty by conceding that the evidence is sufficient to convict 

them, while maintaining that they did not participate in the acts constituting the crimes.’” Ellis 

v. Commonwealth, 68 Va. App. 706, 708 n.1 (2018) (quoting Carroll v. Commonwealth, 280 Va. 

641, 644-45 (2010)). Nevertheless, the effect of the pleas for our purposes is the same as if 

Mitchell had entered traditional guilty pleas.

6 The misdemeanor charges stemmed from additional illicit substances that Mitchell 

possessed on the night in question and his providing false identifying information to the police. 

In accepting Mitchell’s pleas regarding the felony charges, the trial court nolle prosequied the 

four misdemeanor charges.

7

In pertinent part, Code § 19.2-254 provides:

With the approval of the court and the consent of the 

Commonwealth, a defendant may enter a conditional plea of guilty 

in a misdemeanor or felony case in circuit court, reserving the 

right, on appeal from the judgment, to a review of the adverse 

determination of any specified pretrial motion. If the defendant 

prevails on appeal, he shall be allowed to withdraw his plea.
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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, ___ 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. 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 
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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 (2003) (quoting Yarborough v. Commonwealth, 217 Va. 

971, 978 (1977)). Consequently, in challenging the trial court’s denial of his motion to suppress, 

Mitchell “bears the burden of establishing that reversible error occurred.” Saal v. 

Commonwealth, 72 Va. App. 413, 421 (2020) (quoting Mason v. Commonwealth, 291 Va. 362, 

367 (2016)).

Whether “evidence was seized in violation of the Fourth Amendment presents a mixed 

question of law and fact . . . .” Merid v. Commonwealth, 72 Va. App. 104, 108-09 (2020) 

(quoting King v. Commonwealth, 49 Va. App. 717, 721 (2007)); see also Lawson v. 

Commonwealth, 55 Va. App. 549, 554 (2010) (recognizing that “ultimate questions of 

reasonable suspicion and probable cause as here presented involve questions of both law and 

fact” (internal quotation marks and citations omitted)). “When reviewing a denial of a motion to 

suppress evidence, an appellate court considers the evidence in the light most favorable to the 

Commonwealth and ‘will accord the Commonwealth the benefit of all reasonable inferences 

fairly deducible from that evidence.’” Taylor v. Commonwealth, 70 Va. App. 182, 186 (2019) 

(quoting Sidney v. Commonwealth, 280 Va. 517, 520 (2010)). “[A]lthough ‘the ultimate 

8 Mitchell’s argument is limited to McCarthy’s initial stop of the vehicle. He does not 

contest on appeal that he actually possessed the illegal drugs or challenge any actions taken by 

the officers after the initial stop of the vehicle.
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question whether [the stop] violated the Fourth Amendment triggers de novo scrutiny on appeal, 

we defer to the trial court’s findings of ‘historical fact’’ unless such findings are ‘plainly wrong 

or devoid of supporting evidence.’” Saal, 72 Va. App. at 421 (quoting Barkley, 39 Va. App. at 

689-90). This deferential review of the facts “requires us ‘to give due weight to inferences 

drawn from those facts by resident judges and local law enforcement officers.’” Hill, 297 Va. at 

808 (quoting White, 293 Va. at 414).

II. The Fourth Amendment, vehicle stops, and reasonable, articulable suspicion

The Fourth Amendment to the United States Constitution provides, in pertinent part, that 

“[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 . . . .” The Fourth Amendment is not “a 

guarantee against all searches and seizures, but only against unreasonable searches and

seizures.” Williams v. Commonwealth, 49 Va. App. 439, 447 (2007) (quoting United States v. 

Sharpe, 470 U.S. 675, 682 (1985)). Indeed, “the ultimate touchstone of the Fourth Amendment 

is reasonableness.” McArthur v. Commonwealth, 72 Va. App. 352, 362 (2020) (quoting Hill, 

297 Va. at 822). “With regard to seizures, reasonableness depends largely on the extent of the 

individual’s loss of freedom compared to the officer’s level of suspicion of criminality against 

the individual.” Barkley, 39 Va. App. at 691.

“[S]topping a motor vehicle and detaining the operator constitute a ‘seizure’ within the 

meaning of the Fourth Amendment[.]” Lowe v. Commonwealth, 230 Va. 346, 349 (1985). The 

stop “seizes” all occupants of the vehicle. Brendlin v. California, 551 U.S. 249 (2007); see also

Heien v. North Carolina, 574 U.S. 54, 60 (2014) (“A traffic stop for a suspected violation of law 

is a ‘seizure’ of the occupants of the vehicle and therefore must be conducted in accordance with 

the Fourth Amendment.”). Nevertheless, an officer may stop a vehicle, effectively seizing its 

occupants, when “there is at least articulable and reasonable suspicion that a motorist is 
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unlicensed or that an automobile is not registered, or that either the vehicle or an occupant is 

otherwise subject to seizure for violation of law[.]” Delaware v. Prouse, 440 U.S. 648, 663

(1979); see also Lowe, 230 Va. at 349.

“There are no bright line rules to follow when determining whether a reasonable and 

articulable suspicion exists to justify an investigatory stop.” Hoye, 18 Va. App. at 134-35. 

Reasonable, articulable suspicion requires an officer to possess, at the time of the stop, “a 

particularized and objective basis for suspecting the particular person stopped[.]” Heien, 574 

U.S. at 60 (quoting Navarette v. California, 572 U.S. 393, 396 (2014)). “Although a mere hunch 

does not create reasonable suspicion, the level of suspicion the standard requires is considerably 

less than proof of wrongdoing by a preponderance of the evidence, and obviously less than is 

necessary for probable cause.” Bland v. Commonwealth, 66 Va. App. 405, 413 (2016) (citations 

and internal quotation marks omitted) (quoting Navarette, 572 U.S. at 397). “In other words, ‘[a] 

“reasonable suspicion” requires only “some minimal level of objective justification” for making 

such a stop.’” Id. (alteration in original) (quoting Beasley v. Commonwealth, 60 Va. App. 381,

395 (2012)). The possibility that an officer ultimately may prove to be mistaken or that there 

may be an innocent explanation for the facts giving rise to the officer’s suspicion does not 

negate, in and of itself, the officer’s reasonable, articulable suspicion. Shifflett v. 

Commonwealth, 58 Va. App. 732, 736 (2011); see also Heien, 574 U.S. at 60 (recognizing that, 

consistent with the Fourth Amendment, “[t]o be reasonable is not to be perfect”). In reviewing 

whether an officer possessed reasonable, articulable suspicion sufficient to justify a seizure, a 

reviewing court must consider “the totality of the circumstances – the whole picture.” United 

States v. Sokolow, 490 U.S. 1, 8 (1989) (quoting United States v. Cortez, 449 U.S. 411, 417

(1981)).
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III. McCarthy’s stop of the vehicle

Mitchell argues that the information McCarthy possessed when he initiated the traffic 

stop was insufficient to provide a sufficient basis for the stop. Although conceding that the 

report of an outstanding warrant for Nellun gave McCarthy a sufficient basis for McCarthy to 

seize Nellun or stop a vehicle in which she was travelling, he argues that the information 

McCarthy had when he initiated the stop was insufficient for him to form a reasonable belief that 

Nellun was the driver of the vehicle. Absent such a reasonable belief, he contends the stop of the 

vehicle violated the Fourth Amendment.

As he did in the trial court, Mitchell relies heavily on our unpublished decision in 

Worley.

9

 In Worley, an officer stopped the truck that Worley was driving because the officer 

“determined that the owner of the truck had a suspended license[;]” however, the officer had “not 

determine[d] whether the driver was the owner before stopping the truck.” Worley, No. 

1913-94-2, at 2. Contrasting it with our decision in Hoye, in which the officer had reason to 

seize the registered owner of a vehicle and had “confirmed ‘that the vehicle’s driver matched the 

description of the registered owner as to gender and approximate height, weight, and hair 

color[,]’” id. (quoting Hoye, 18 Va. App. at 135), the Worley panel concluded that an officer’s 

knowledge that the registered owner of a vehicle is subject to seizure, without more, does not 

provide reasonable, articulable suspicion for the officer to stop that vehicle. Specifically, the 

panel held that

to hold that a police officer has a reasonable suspicion to conduct 

a Terry stop where the officer has determined only that the 

vehicle’s owner has a suspended operator’s license would justify 

the indiscriminate stop of every vehicle owned by an individual 

9

“Although not binding precedent, unpublished opinions can be cited and considered for 

their persuasive value.” Blowe v. Commonwealth, 72 Va. App. 457, 468 n.10 (2020) (quoting 

Otey v. Commonwealth, 61 Va. App. 346, 350 n.3 (2012)). See also Rule 5A:1(f).
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with a suspended license. The Fourth Amendment does not 

countenance such an intrusive violation of privacy.

Id. at 4.

The reasoning and rationale underpinning the panel’s conclusion in Worley cannot 

survive the United States Supreme Court’s decision in Glover. Much as was the panel of this 

Court in Worley, the United States Supreme Court in Glover was confronted with “the question 

whether a police officer violates the Fourth Amendment by initiating an investigative traffic stop 

after running a vehicle’s license plate and learning that the registered owner has a revoked 

driver’s license.” Glover, 140 S. Ct. 1183, 1186 (2020). In analyzing the reasonable, articulable 

suspicion question, Justice Thomas, writing for an eight-justice majority,10 concluded that an 

officer’s belief that the registered owner is the driver of the car is a “commonsense inference

. . . , which provide[s] more than reasonable suspicion to initiate the stop[]” under the Fourth 

Amendment. Id. at 1188. The high Court emphasized that “[t]he fact that the registered owner 

of a vehicle is not always the driver of the vehicle does not negate the reasonableness of [the]

inference.” Id.

Consistent with the reasoning of Glover, McCarthy had sufficient reasonable, articulable 

suspicion to initiate the stop of the vehicle. Accordingly, the trial court did not err in denying 

Mitchell’s motion to suppress. Furthermore, because it is inconsistent with Glover, our decision 

in Worley, although never more than mere persuasive authority, is overruled.

In following the rule of decision in Glover, we note that, on its own terms, Glover does 

not allow an officer to stop a vehicle whose registered owner is subject to a lawful seizure in 

every instance. The reasonable, articulable suspicion inquiry still requires both officers and 

courts to consider the totality of the circumstances, and thus, “the presence of additional facts 

10 Although Justice Kagan also wrote a concurring opinion in which Justice Ginsburg 

joined, both Justice Kagan and Justice Ginsburg joined the majority opinion.
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might dispel reasonable suspicion” arising from the commonsense inference. Id. at 1191. By 

way of example, the Glover majority noted that “if an officer knows that the registered owner of 

the vehicle is in his mid-sixties but observes that the driver is in her mid-twenties, then the 

totality of the circumstances would not ‘raise a suspicion that the particular individual being 

stopped is engaged in wrongdoing.’” Id. (quoting Cortez, 449 U.S. at 418). Accordingly, if facts

known to an officer negate the commonsense inference that the registered owner is in the car, the 

fact that the registered owner is subject to seizure does not provide an officer with sufficient 

reasonable, articulable suspicion to stop the vehicle.11

CONCLUSION

Consistent with Glover, McCarthy possessed sufficient reasonable, articulable suspicion 

to initiate the vehicle stop at issue in this case. Accordingly, the trial court did not err in denying 

Mitchell’s motion to suppress, and we affirm the judgment of the trial court.

Affirmed.

11 We note that McCarthy had more than just this “commonsense inference” to justify the 

stop; the information he received prior to initiating the stop confirmed that the driver matched 

Nellun’s physical description regarding race, height, and weight. See Hoye, 18 Va. App. at 135.