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. 

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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.” 

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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 

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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 

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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 

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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). 

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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 

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“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 

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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 

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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 

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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 

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

Appeals. 

Affirmed.

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