FL2: Consent given while officer holding DL without RS is invalid

While the stop lasted only 11 minutes, the officer had defendant’s DL in hand and defendant was not free to leave when the officer asked for consent. The citation process was essentially complete, but the officer chose to ask for consent before issuing the citation and telling defendant he was free to go. Villanueva v. State, 2016 Fla. App. LEXIS 1757 (Fla. 2d DCA Feb. 10, 2016):

The trial court erred in denying the motion to suppress. As the facts are undisputed, we review the court’s application of law de novo. See K.S., 28 So. 3d at 987. The trial court denied the motion reasoning that the stop only lasted eleven minutes and that the delays were attributable to the officer’s warrant checks and search. It further reasoned that Villanueva’s consent was not the result of any show of authority. However, the trial court’s order fails to address the officer’s retention of the license, Villanueva’s lack of awareness that he could refuse consent, and whether Villanueva was informed he was free to leave. Although the stop only lasted for eleven minutes, at the time of the request for consent to search, per the officer’s uncontroverted testimony, the only thing Officer Dollison had left to do was issue the citation. Yet 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.