NOT FINAL UNTIL TIME EXPI RES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT

JOEY VILLANUEVA, ) ) Appellant, ) ) v. ) Case No. 2D15-1422 ) STATE OF FLORIDA, ) ) Appellee. ) ___________________________________ ) Opinion filed February 10, 2016. Appeal from the Circuit Court for Polk County; Glenn T. Shelby, Judge. Howard L. Dimmig, II, Public Defender, and Judith Ellis, Assistant Public Defender, Bartow, for Appellant. Pamela Jo Bondi, Attorney General, Tallahassee, and Marilyn Muir Beccue, Assistant Attorney General, Tampa, for Appellee.

KHOUZAM, Judge.

Joey Villanueva appeals his judgments and sentences for possess ion of methamphetamine and possession of paraphernalia. Villanueva en tered a plea to the- 2 - charges, but reserved the right to appeal the denial of his dis positive motion to suppress. We reverse the denial of the motion to suppress. The underlying facts are not in dispute as only the arresting o fficer testified at the hearing on the motion to suppress. Officer Bradley Doll ison testified that he observed a vehicle operated by Villanueva fail to come to a com plete stop at a stop sign. He pulled Villanueva over and approached the driver's wi ndow. He asked for Villanueva's license and regist ration. Officer Dollison went b ack to his patrol vehicle with the license and registration and ran Villanueva's license number to check for any outstanding warrants. The license check did not yield any outs tanding warrants but informed Officer Dollison that Villanueva was on probation. Of ficer Dollison testified that the only thing left for him to do after running the check was t o issue the citation. Instead of writing the ticket, Officer Dollison returned to the van and asked Villanueva why he was on probation. After Villanueva told Officer Dollison he wa s on probation for a trafficking offense, Officer Dollison asked if Villanueva had a ny guns, knives, drugs, or anything illegal in the vehicle. Villanueva responded that he did not. Officer Dollison asked him to step out of the van and then asked for consent to search his person and the vehicle for anything illegal. When he asked for consent to search, Officer Dollison had not yet issued the citation and could not recall whether he had returned Villanueva's license. However, at the time of the stop, it was Officer Doll ison's standard practice to return a driver's license only after he had asked for consent t o search. 1 In response to Officer Dollison's request, Villanueva said: "Go ahead. I have no choice because I'm on probation." Officer Dollison did not correct Villanueva's misu nderstanding. The officer

1 Officer Dollison also testified that this is no longer his stan dard practice.- 3 - then conducted the search and found a small baggy containing a crystal-like substance in Villanueva's front right key pocket. The entire exchange la sted about eleven minutes. Another law enforcement officer was present at the time of the search request, but did not testify. As a threshold issue, the parties agree that the probation exce ption to the warrant requirement does not apply. Probationers do not absolu tely forfeit the protection of the Fourth Amendment prohibition against unreason able searches and seizures. See Grubbs v. State, 373 So. 2d 905, 907 (Fla. 1979) . Probation officers may execute warrantless searches of a probationer's home or wor kplace, as such searches are necessary for the proper supervision of the probat ioner. Id. at 908. However, extending a probation officer's general authority to a law enforcement officer is not permissible under the Fourth Amendment. Harrell v. Stat e, 162 So. 3d 1128, 1132 (Fla. 4th DCA 2015) (citing Grubbs, 373 So. 2d at 909). A condition of probation that requires a probationer to cons ent to a warrantless search by any law enforcement officer at any time runs afoul of Fourth Amendment protections. Grubbs, 373 So. 2d at

909. Villanueva filed a motion to suppress arguing that he was detai ned in excess of the legal duration of the search and that his consent was involuntary. In reviewing such a motion, The trial court's "determination of historical facts enjoys a presumption of correctness and is subject to reversal only if not supported by competent, substantial evidence in the record. However, the circuit court's determinations on mixed questions of law and fact and its legal conclusions are subject to de novo review."- 4 - State v. K.S., 28 So. 3d 985, 987 (Fla. 2d DCA 2010) (quoting S tate v. Clark, 986 So. 2d 625, 628 (Fla. 2d DCA 2008)). "[A] traffic stop must last n o longer than the time it takes to write the traffic citation." State v. Kindle, 782 So. 2d 971, 974 (Fla. 5th DCA 2001). However, the detention may continue for a longer period of time "if the driver has freely and voluntarily given consent to a search of himself or the vehicle." Id. When the validity of a search depends on consent, the State has the burden of proving that the necessary consent was obtained and that it was freely and voluntarily given. "The determination of whether the consent to search is voluntary is a question for the trial judge and should not be disturbed on appeal unless the determination is clearly erroneous." Id. (citation omitted) (quoting Towner v. State, 713 So. 2d 103 0, 1031 (Fla. 5th DCA 1998)). If a person has been illegally seized by police and su bsequently consents to a search, "the State bears the burden of showing by clear and con vincing proof that there was an unequivocal break in the chain of illegality sufficient to dissipate the taint of the law enforcement's prior illegal activity." Kutzorik v. State, 891 So. 2d 645, 648-49 (Fla. 2d DCA 2005). Whether or not someone has been seized is evalua ted by the totality of the circumstances. Golphin v. State, 945 So. 2d 1174, 1181 (Fl a. 2006). However, the

retention of a defendant's driver's license when the officer as ks for consent to search should be heavily factored when determining the nature of the e ncounter. Horne v. State, 113 So. 3d 158, 161 (Fla. 2d DCA 2013). Another factor that should be strongly

considered is whether the defendant was informed he or she was free to leave. Id. at 161 n.2. Additionally, law enforcement officers are not requir ed to advise citizens of the right to refuse consent. See Stubbs v. State, 661 So. 2d 1268, 1270 (Fla. 5th DCA 1995). But a defendant's awareness of his right to refuse is a factor to be considered in- 5 - determining whether consent was voluntary. See Luna-Martinez v . State, 984 So. 2d 592, 598 (Fla. 2d DCA 2008); I.R.C. v. State, 968 So. 2d 583, 5 87 (Fla. 2d DCA 2007). The trial court erred in denying the motion to suppress. As th e 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 Villanuev a's consent was not the resul t 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, an d whether Villanueva was informed he was free to leave. Although the stop only last ed 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 ci tation. Yet the citation was not written up until after Villanueva was taken into custody, a fter legal duration of the stop was exceeded. Considering the totality of the circumstanc es in this case, we find that Villanueva's consent was involuntary. The State argues that the evidence is unclear as to whether the officer retained Villanueva's license at the time he sought consent to search. However, there is no evidence to support the conclusion that the officer gave Vil lanueva his license back.

The officer testified that he did not remember if he returned t he license, but that it was his standard practice at the time to hold on to the license whe n he asked for consent.

There is no indication in the record that the officer did not f ollow his standard practice at

the time.- 6 - Accordingly, we reverse Villanueva's convictions and sentences and remand with directions to discharge him.

Reversed and remanded with directions.

KELLY and CRENSHAW, JJ., Concur.