Jones v. Com.

PRESENT: All the Justices

RUSSELL MAURICE JONES
OPINION BY
v. Record No. 090979 JUSTICE LEROY F. MILLETTE, JR.
February 25, 2010
COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

In this appeal, we consider whether off-duty law

enforcement officers, privately employed by an apartment complex

to protect its property from trespassers, unlawfully seized a

defendant in violation of the Fourth Amendment, when the

defendant complied with the officers’ request to accompany them

to the rental office to issue a notice barring the defendant

from the property.

BACKGROUND

The material facts are largely undisputed. Deputy Jeffrey

Feighner and Deputy Tom Mannes of the Richmond City Sheriff’s

Office were employed as off-duty private security guards for an

apartment complex, “hired to identify people who come on to the

property, and determine if they are residents and are able to be

on the property.”

Both deputies were wearing dark brown pants and a short

sleeve khaki brown polo shirt with an embroidered Sheriff’s

badge over the left breast. “Richmond Sheriff’s Office” was

written around the badge, and “Sheriff’s Office” appeared across
the back of the shirt. The deputies had their firearms

holstered on their hips.

At approximately 2:15 a.m., the deputies observed a sedan

pull into the apartment complex and park in front of an

apartment building. Russell Maurice Jones got out from the

driver’s side and headed toward the building. Shortly

thereafter, Jones returned to the sedan, opened the trunk and

looked through it for 20 to 30 seconds, then headed back to the

same apartment building. Deputy Feighner had not previously

encountered Jones and approached him “to see the reason for him

being on the property.”

When Deputy Feighner asked Jones for identification, Jones

replied that he did not have identification, but provided Deputy

Feighner with his name, date of birth, and social security

number. When Deputy Feighner asked Jones his reason for being

on the property, Jones “stated that [his] baby daughter was sick

and it was an emergency.” When Deputy Feighner asked Jones what

apartment they were staying in, Jones pointed in the general

direction of the building, but could not provide a building or

apartment number. Deputy Feighner did not testify as to any

objection by Jones when he was asked “if it would be okay to pat

him down [for weapons].” No weapons or anything illegal was

recovered and the deputies did not search the car Jones had been

driving.

2
 Deputy Feighner testified that he asked Jones to go to the

rental office with them “to bar him from the property, fill out

the paperwork.” When asked whether he ordered Jones to come

with him to fill out the paperwork, Deputy Feighner responded,

“No. He was cooperative.” According to Deputy Feighner, Jones

did not give him any “indication physically” that Jones did not

want to go with him, and Jones “did voluntarily come to the

rental office.” However, Deputy Feighner testified that “if

[Jones] was to try to leave the scene, we would have detained

him.”

At the rental office, while Deputy Mannes began processing

paperwork for the letter barring trespass, Deputy Feighner

contacted the Richmond Sheriff’s jail annex to check if Jones

had any warrants out for his arrest and also to check Jones’

driver’s transcript. Deputy Feighner learned that Jones did not

have any outstanding warrants, but his driver’s license was

revoked. Deputy Feighner testified that the Department of Motor

Vehicles check did not prolong their stay in the rental office

beyond what it would have been for Deputy Mannes to complete the

paperwork barring trespass. After Deputy Feighner learned that

Jones’ driver’s license was revoked, he handcuffed Jones and

placed him under arrest in the rental office. *

*
Deputy Feighner testified that they “took him into custody
at . . . 2:25 in the morning.”

3
 Jones was indicted for “Driving While an Habitual Offender

– Subsequent Offense,” in violation of Code § 46.2-357(B)(3).

Jones filed a motion to suppress any evidence resulting from

what he contended was an unlawful seizure, conducted without a

warrant and without reasonable articulable suspicion to believe

he had committed a crime.

The circuit court overruled Jones’ motion to suppress,

finding that Jones consented to go to the rental office, as

there was “no evidence of any coercion or overbearing [Jones’]

will in any way. [The deputies] said it took no time at all.

Very limited intrusion time-wise.” The circuit court also found

that “there w[ere] no guns drawn, no force involved, no coercion

in any way. [Jones] cooperated. The officers were engaged in

[a] private off-duty capacity, privately engaged person[s].”

Jones filed a motion for reconsideration. The circuit

court denied Jones’ motion to reconsider and held that

[Jones was] asked to accompany the officers
to the rental office, so that they could proceed
with checking the list of those barred and giv[e]
[him] a notice that [he was] barred from the
premises. That was all the action that they
intended to take. They didn’t just pat him down,
but they asked for permission to do that. . . .
It was ten minutes from the encounter to the
rental office, what they determined at the time,
which was a very brief stop.

The circuit court reiterated its conclusion that Jones was not

seized in violation of the Fourth Amendment. The circuit court

4
also stated that, “[i]n this case, the Court doesn’t reach the

issue of the state action in this ruling.”

Jones entered a conditional guilty plea to the charge of

driving while an habitual offender – subsequent offense,

reserving his right to a review of the circuit court’s denial of

his motion to suppress. Code § 19.2-254. Jones appealed his

conviction to the Court of Appeals, which granted his petition,

heard oral argument, and affirmed his conviction in an

unpublished opinion. Jones v. Commonwealth, Record No. 0968-08-

2 (April 21, 2009). We awarded Jones this appeal.

DISCUSSION

On appeal to this Court, Jones assigns error to the circuit

court’s holding that state action was not involved when off-duty

deputies engaged in police business while wearing their uniforms

and displaying their badges of authority, and to the Court of

Appeals’ failure to address the issue of state action. Jones

also assigns error to the circuit court’s denial of his motion

to suppress, and to the Court of Appeals’ holding that the

encounter between Jones and the deputies was consensual.

Because we affirm the Court of Appeals’ determination that the

encounter was consensual, for purposes of this opinion, we

assume without deciding that there was state action. We

therefore will discuss only those arguments pertaining to

5
whether Jones’ encounter with the deputies was consensual or an

illegal seizure in violation of his Fourth Amendment rights.

Jones argues that he was not free to leave from the moment

the deputies instructed him that he needed to accompany them to

the rental office to effect his barment from the property.

Jones contends that when the armed, uniformed law enforcement

officers indicated that they were going to bar him, then asked

him to come to the rental office to effectuate his barment, no

reasonable person in Jones’ position would have felt free to

leave. According to Jones, a reasonable person in that

situation would go along with the barment paperwork only because

he felt he had no choice. Therefore, Jones argues that since

the encounter was not consensual and was not supported by

reasonable suspicion, the officers’ seizure of Jones violated

the Fourth Amendment.

The Commonwealth argues that the circuit court’s factual

findings supporting a consensual encounter were not plainly

wrong or unsupported by the evidence. The Commonwealth

maintains that the record demonstrates “no application of force,

no intimidating movement, no overwhelming show of force, no

brandishing of weapons, no blocking of exits, no threat, no

command, not even an authoritative tone of voice.” United

States v. Drayton, 536 U.S. 194, 204 (2002). The Commonwealth

asserts that although the deputies were armed and wearing

6
clothing identifying them as members of the Sheriff’s

Department, those facts did not transform the consensual

encounter into a seizure under the Fourth Amendment. Thus,

according to the Commonwealth, Jones was not seized within the

meaning of the Fourth Amendment.

The Fourth Amendment to the Constitution of the United

States 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.” U.S. Const. amend. IV. A defendant’s claim that

he or she has been seized in violation of the Fourth Amendment

presents a mixed question of law and fact that is reviewed de

novo on appeal. Harris v. Commonwealth, 266 Va. 28, 32, 581

S.E.2d 206, 209 (2003); McCain v. Commonwealth, 261 Va. 483,

489, 545 S.E.2d 541, 545 (2001); Reittinger v. Commonwealth, 260

Va. 232, 236, 532 S.E.2d 25, 27 (2000).

We give deference to the circuit court’s factual findings

and inferences drawn from those facts, but independently

determine whether the manner in which the evidence was obtained

satisfies the Fourth Amendment. McCain, 261 Va. at 490, 545

S.E.2d at 545; Bolden v. Commonwealth, 263 Va. 465, 470, 561

S.E.2d 701, 704 (2002); Bass v. Commonwealth, 259 Va. 470, 475,

525 S.E.2d 921, 924 (2000).

7
 In reviewing the denial of a motion to suppress
evidence claiming a violation of a person’s
Fourth Amendment rights, we consider the facts in
the light most favorable to the Commonwealth, the
prevailing party at trial. The burden is on the
defendant to show that the trial court committed
reversible error. We are bound by the trial
court’s factual findings unless those findings
are plainly wrong or unsupported by the evidence.
. . . [A]n appellate court “should take care both
to review findings of historical fact only for
clear error and to give due weight to inferences
drawn from those facts by resident judges and
local law enforcement officers.”

Malbrough v. Commonwealth, 275 Va. 163, 168-69, 655 S.E.2d 1, 3

(2008) (quoting Reittinger, 260 Va. at 236, 532 S.E.2d at 27).

However, we will review the trial court’s application of the law

de novo. Id.

The determination whether an encounter is consensual or is

an illegal seizure in violation of a defendant’s Fourth

Amendment rights is not governed by a “litmus test,” and

requires consideration of all the circumstances surrounding the

encounter. Ohio v. Robinette, 519 U.S. 33, 39 (1996); Florida

v. Bostick, 501 U.S. 429, 439 (1991); Harris, 266 Va. at 32, 581

S.E.2d at 209. “So long as a reasonable person would feel free

‘to disregard the police and go about his business,’ the

encounter is consensual” and no reasonable suspicion is required

to justify the encounter. Dickerson v. Commonwealth, 266 Va.

14, 17, 581 S.E.2d 195, 197 (2003) (quoting Bostick, 501 U.S. at

434); Reittinger, 260 Va. at 236, 532 S.E.2d at 27. The

8
“reasonable person” test is an objective test and presumes an

innocent person. Malbrough, 275 Va. at 169, 655 S.E.2d at 4.

Law enforcement officers may approach a citizen in public

places and engage in consensual encounters involving questioning

of the citizen, if the citizen is willing to listen, without

violating the Fourth Amendment’s prohibition of unreasonable

seizures. Drayton, 536 U.S. at 200. A consensual encounter is

not transformed into a seizure merely by the presence of police

officers who are in uniform and armed. Id. at 204-05;

Dickerson, 266 Va. at 18, 581 S.E.2d at 197. “The consensual

encounter becomes a seizure ‘[o]nly when the officer, by means

of physical force or show of authority, has in some way

restrained the liberty of a citizen.’ ” Malbrough, 275 Va. at

169, 655 S.E.2d at 4 (quoting Bostick, 501 U.S. at 434).

Courts have previously listed factors that are relevant in

determining whether a seizure has occurred, which include the

number of police officers present, the display of weapons by an

officer, physical contact between an officer and a citizen, an

officer’s language or tone of voice compelling compliance, the

retention of documents requested by an officer, and whether a

citizen was told that he or she was free to leave. Robinette,

519 U.S. at 36; Florida v. Royer, 460 U.S. 491, 504 (1983);

United States v. Mendenhall, 446 U.S. 544, 554 (1980); Harris,

266 Va. at 32, 581 S.E.2d at 209. However, “what constitutes a

9
restraint on liberty prompting a person to conclude that he [or

she] is not free to ‘leave’ will vary, not only with the

particular police conduct at issue, but also with the setting in

which the conduct occurs.” Michigan v. Chesternut, 486 U.S.

567, 573 (1988).

The issue presented to the circuit court by Jones’ motion

to suppress was whether, when the deputies asked Jones to

accompany them to the rental office to effect his barment from

the property, the original consensual encounter became a

seizure, such that a reasonable person, under all the

surrounding circumstances, would not have felt free to disregard

the deputies and continue about his business.

The circuit court, in considering the testimony of the

witnesses appearing at the suppression hearing, assessed all of

the evidence. The circuit court determined whether, under all

of the circumstances, the encounter was transformed from

originally consensual to a seizure because a reasonable person

would believe he was not free to leave. The circuit court

concluded that the consensual encounter was not transformed into

a seizure by the deputies’ request.

In Mendenhall, the United States Supreme Court held that

the Fourth Amendment had not been violated when a woman went

with federal agents to the Drug Enforcement Administration

office since the woman had not been told that she had to go to

10
the office, but had been simply asked if she would accompany the

agents, and there had been neither threats nor any show of

force. 446 U.S. at 557-58.

In this case, the deputies did not demand that Jones

accompany them to the rental office. Jones was merely asked if

he would accompany the deputies, and he was cooperative with

their request. There was no evidence that either deputy

brandished his weapon, physically touched Jones, used a tone of

voice, language or body language indicating that Jones was not

free to leave, or that compliance with their request to

accompany them to the rental office was compelled. There was no

evidence of repeated requests by the deputies. Although the

deputies did not affirmatively inform Jones that he was free to

leave, that fact alone is not sufficient to remove the

consensual nature of the encounter. Robinette, 519 U.S. at 39-

40; Mendenhall, 446 U.S. at 555; Harris, 266 Va. at 33, 581

S.E.2d at 210. Additionally, the subjective intent of the

deputies that if Jones refused, they would have compelled him to

accompany them is not relevant for Fourth Amendment purposes.

Whren v. United States, 517 U.S. 806, 813 (1996)(explaining that

“[s]ubjective intentions” of investigating officers “play no

role in ordinary . . . Fourth Amendment analysis”).

The deputies, by asking Jones to accompany them to the

rental office, sought information regarding Jones’ identity and

11
his authority to be on the property, consistent with their

purpose of enforcing the no trespassing policy of the apartment

complex. The notification process employed by the deputies was

required by their private employer and did not implicate

restraint of Jones’ liberty or the need to restrain. Dickerson,

266 Va. at 18, 581 S.E.2d at 197.

The circuit court determined that the encounter was “very

brief,” and its purpose was to check the barment list and give

Jones notice that he was barred from the property. The court’s

determination included a finding that no guns were drawn, that

there was no force or coercion in any way, and that Jones

cooperated. The circuit court, after analyzing all the

circumstances, observing the witnesses, and making factual

findings, concluded that the deputies’ actions did not

constitute a seizure. The record amply supports the circuit

court’s factual findings, and the evidence supports the circuit

court’s conclusion that the encounter between Jones and the

deputies was consensual.

CONCLUSION

For the foregoing reasons, we hold that Jones has failed to

carry his burden of showing that the circuit court’s findings of

fact were plainly wrong or unsupported by the evidence, or that

the trial court committed reversible error. We find no error in

the application of the law by the circuit court or by the Court

12
of Appeals. We will affirm the judgment of the Court of

Appeals.

Affirmed.

13