Article from: www.thenewspaper.com/news/49/4913.asp
3/10/2016Florida Court: Cops May Not Hold Licenses As Leverage To Search
Florida Court of Appeal rules that asking for voluntary consent to search a vehicle while holding a license is unlawful.
Police officers may not hold a Florida driver's license and demand to search a vehicle. That was the conclusion last month of a three-judge state Court of Appeal panel that ruled the search of Joey Villanueva's van unconstitutional.
Lakeland Police Officer Bradley Dollison, a rookie, pulled Villanueva over, claiming he blew through a stop sign. The officer opened with the standard request for license and registration. Villanueva's papers were in order, except a computer check noted that he was on probation. At trial, Officer Dollison admitted that once the check was complete he had completed everything he had to do except write the citation. The officer decided to ask more questions -- why was Villanueva on probation? Did he have any weapons or anything illegal in the vehicle?
Villanueva explained that he had a past drug trafficking conviction, and that he was not carrying anything illegal (although he was carrying a small baggy of methamphetamine in his pocket). Officer Dollison ordered Villanueva out of the van and asked for consent to search.
"Go ahead," Villanueva replied. "I have no choice because I'm on probation."
In fact, the van driver did not have to consent. Florida only authorizes probation officers to conduct warrantless searches of probationers, not police officers. So the appellate judges had to examine whether the consent to search was truly voluntary or not.
"The retention of a defendant's driver's license when the officer asks for consent to search should be heavily factored when determining the nature of the encounter," Judge Nelly Khouzam wrote for the unanimous three-judge panel. "Another factor that should be strongly considered is whether the defendant was informed he or she was free to leave."
At trial, Polk County Circuit Court Judge Glenn T. Shelby had found the eleven minute delay was reasonable, and he saw no signs of coercion from the officer. The Court of Appeal says the judge got it wrong.
"The trial court erred in denying the motion to suppress," Judge Nelly Khouzam. "The citation was not written up until after Villanueva was taken into custody, after legal duration of the stop was exceeded. Considering the totality of the circumstances in this case, we find that Villanueva's consent was involuntary."
Because the search was illegal, the appellate court ordered Villanueva's conviction overturned. A copy of the ruling is available in a 65k PDF file at the source link below.
Source: Villanueva v. Florida (Court of Appeal, State of Florida, 2/10/2016)
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