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

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.

Where have all the Workers Gone?

Time for another mini-rant.  A client of mine has been out of work through most of the pandemic and has struggled to get government assistance, as the rules for getting and maintaining unemployment were constantly shifting.  She has a good work history as both a FOH and BOH employee in food service with some management experience.  He previous employer had promised to rehire her when he was able to reopen his restaurants, but decided to only reopen one and to staff it with family and other staff with more tenure (she had been a shift manager at the other restaurant, but the staff at the “original” location had been there for decades).

She has been actively seeking a new job at an entry level, but was not getting any offers — mainly because the competition was very stiff — there were lots of applicants with equal or better qualifications applying for wait staff positions.  This week, she was hired by another restaurant, getting the job in part because she knew the BOH manager.  She was excited to have a job and be back at work — not despondent at “losing her unemployment.”

The belief that unemployment and lack of adequate staff in service jobs is all about “lazy Americans who don’t want to work” is belied by the numbers. The unemployment problem in the US is not lack of jobs — 9,000,000 new job openings in May — or lack of workers — 6,100,000 new hires in May — but of the mismatch between available jobs and workforce location and skills.

The jobs are mostly in areas where employment is already back to “statistical full employment” and, thus, the available pool of potential employees consists of those “marginally attached to the workforce.”  These are are not all “shiftless lay-abouts on unemployment” but students, single parents, stay-at-home moms, older people transitioning to retirement, people who have no access to transportation, people caring for a family member, and others who cannot commit long-term to a “regular” job.  Meanwhile the workers who want full-time employment are in areas, like my client, that have an excess of people seeking jobs, often with skill sets that exceed the requirements of the jobs available.

Before COVID, the ratio of available jobs to available workforce was approaching 3 to 1 and the actively employed workforce was at an all time high. Both the Obama and Trump administrations tried to find strategies to “entice” people to enter the workforce, including campaigns to encourage those over 68 to “take advantage” of the new rules that allowed them to earn unlimited wages or income without a reduction in Social Security — a law that was enacted at the behest of business interests, not workers.  Other programs actually encouraged younger people to “skip college” and start earning now (actually, given the crushing debt that can be incurred through student loans, probably not bad advice, but that was not the motive of the campaigns).

So why are there so few workers in the “active labor force”?  The main reason is that we baby-boomers (I am in the last half-decade of that category) are now retiring in record numbers — as many as 400,000 per month — a trend that started before the COVID Pandemic, but which has increased significantly during the last 18 months as many workers found that they could “make it” on their retirement or simply decided that going back to the 9-5 was not that enticing.  The groups that are in their prime working years — the baby-busters of Gen X and the Millennials — have the highest rates of employment and, thus, have no real elasticity to add to the workforce.  Meanwhile, Gen Zers are still completing their educations, starting families, or are already in the labor force.

The US is not alone in this dearth of workers — in fact, in comparison to most other developed countries, the US is much better off.  One of the reasons that we have a higher workforce participation rate in the US is the lack of government programs for the unemployed — most specifically the lack of universal healthcare and guaranteed housing.

This is also not a new problem.  While many remember the “feminist revolution” as a courter-culture movement of the 1960s and 70s, it was in fact very popular with business interests, who saw in educated middle class “stay at home” mothers a new potential pool of workers (albeit, below a glass ceiling).  The trend in delaying marriage among young women and the concept that it was possible to “have it all” with a career and a family, was likewise a real feminist trope, but also a cynical move by business to attract and retain a workforce that was cheap in comparison to the traditional pool of male workers.  The gender pay-gap is not just about gender — it’s about keeping the bottom line healthy.

This is why many business interests, which are otherwise supportive of conservative policies, oppose immigration restrictions.  As the pool of cheap(er) native employees has shrunk and women have begun to make strides into upper management, business needs a new source of low-cost labor to keep profits rising.

The simple fact is that, like any complex national or international issue, reducing the US’s unemployment problem to a sound-bite is not helpful to finding a solution.  In fact, it is counter-productive to doing so when the sound-bite is accept as “unquestionably true and the only cause” of the problem.

OCD, but not too OCD

Just a short observation: If I was as obsessive about proofreading these posts as I am about correcting them when I am reading them after I post them, there would be a lot fewer errors to correct.