Villanueva v. State

• Decision Date: 30 March 2016
• Docket Number: No. 2D15–1422.,2D15–1422.
• Citation: 189 So.3d 982
• Parties: Joey VILLANUEVA, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

189 So.3d 982

Joey VILLANUEVA, Appellant,
v.
STATE of Florida, Appellee.

No. 2D15–1422.

District Court of Appeal of Florida, Second District.

March 30, 2016.

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.

Opinion

BY ORDER OF THE COURT:

The Attorney General's motion for clarification is granted. The opinion dated February 10, 2016, is hereby withdrawn

189 So.3d 984

and the attached opinion is substituted therefor. No further motions for clarification will be entertained.

KHOUZAM, Judge.

Joey Villanueva appeals his judgments and sentences for possession of methamphetamine and possession of paraphernalia. Villanueva entered a plea to the charges, but reserved the right to appeal the denial of his dispositive motion to suppress. We reverse the denial of the motion to suppress.

The underlying facts are not in dispute as only the arresting officer testified at the hearing on the motion to suppress. Officer Bradley Dollison testified that he observed a vehicle operated by Villanueva fail to come to a complete stop at a stop sign. He pulled Villanueva over and approached the driver's window. He asked for Villanueva's license and registration. Officer Dollison went back 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 outstanding warrants but informed Officer Dollison that Villanueva was on probation. Officer Dollison testified that the only thing left for him to do after running the check was to 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 was on probation for a trafficking offense, Officer Dollison asked if Villanueva had any 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 Dollison's standard practice to return a driver's license only after he had asked for consent to 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 misunderstanding. The officer then conducted the search and found a small baggy containing a crystal-like substance in Villanueva's front right key pocket. The entire exchange lasted about eleven minutes. Another law enforcement officer was present at the time of the search request, but did not testify.

Notably, the State did not argue that Villanueva lacked the right to refuse consent to the search or that the probation exception to the warrant requirement justified the search. See Grubbs v. State, 373 So.2d 905, 907 (Fla.1979) (“We recognize that an individual does not absolutely forfeit the protection of the fourth amendment prohibition of unreasonable searches and seizures merely by assuming the status of a probationer[.]”).

Villanueva filed a motion to suppress arguing that he was detained in excess of the legal duration of the search and that his consent was involuntary. In...