Jones v. Com.

• Decision Date: 25 February 2010
• Docket Number: Record No. 090979.
• Citation: 690 S.E.2d 95
• Parties: Russell Maurice JONES v. COMMONWEALTH of Virginia.
• Court: Virginia Supreme Court

690 S.E.2d 95

Russell Maurice JONES v. COMMONWEALTH of Virginia.

Record No. 090979.

Supreme Court of Virginia.

February 25, 2010.

Cassandra M. Hausrath, Asst. Public Defender, for appellant.

Leah A. Darron, Senior Asst. Atty. Gen. (William C. Mims, Atty. Gen., on brief), for appellee.

Present: All the Justices.

OPINION BY Justice LEROY F. MILLETTE, JR.

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.

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.^*

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 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, 2009 WL 1045476 (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 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, 122 S.Ct. 2105, 153 L.Ed.2d 242 (2002). The Commonwealth asserts that although the deputies were armed and wearing 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).

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...