         IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FIFTH DISTRICT

                                                  NOT FINAL UNTIL TIME EXPIRES TO
                                                  FILE MOTION FOR REHEARING AND
                                                  DISPOSITION THEREOF IF FILED


WESLEY THOMPSON FOLEY, JR.,

              Appellant,

v.                                                       Case No. 5D15-1995

STATE OF FLORIDA,

              Appellee.

________________________________/

Opinion filed April 8, 2016

Appeal from the Circuit Court
for Citrus County,
Richard A. Howard, Judge.

Baya Harrison,       III,     Monticello,   for
Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Kaylee D. Tatman,
Assistant Attorney General, Daytona
Beach, for Appellee.


                              ON CONCESSION OF ERROR

PER CURIAM.

       Wesley Thompson Foley, Jr., appeals the judgment and sentences for

possession of a firearm and ammunition by a convicted felon and possession of

methamphetamine. Foley tendered a nolo contendere plea to these charges, reserving

the right to appeal the trial court’s denial of his dispositive motion to suppress evidence
seized during the search of a vehicle in which he was a passenger.1 Foley argues that

the trial court erred in finding that he did not have standing to contest the search of the

vehicle. The State commendably concedes error and requests that we remand this

case back to the trial court for an evidentiary hearing. We agree.

       Foley was the front seat passenger in a vehicle which was stopped by Citrus

County Sheriff’s Deputy Seffern for a traffic infraction. The deputy asked the driver for

her license, registration, and insurance card, and the driver complied. Deputy Seffern

then asked the driver for consent to search the vehicle, but the driver refused. The

deputy thereafter called for a K-9 backup, and Deputy Laborda, also with the Citrus

County Sheriff's Department, arrived on the scene with a drug-sniffing dog. Deputy

Laborda walked his dog around the vehicle, and the dog alerted at the front passenger

door. The vehicle was then searched by the deputies, and methamphetamine was

found in the front passenger door panel. Ammunition was thereafter confiscated from

the search of duffel bags owned by Foley that were located in the backseat of the

vehicle. A firearm that was wrapped in camouflage tape was also seized from the

vehicle, and Foley’s fingerprints were found on the camouflage tape.           Foley was

arrested, and the driver was released after being issued a warning for a traffic violation.

Foley later moved to suppress all the aforementioned evidence obtained by the search,

arguing that it was seized in violation of his Fourth Amendment rights.

       The Florida and United States Constitutions protect the “right of the people to be

secure in their persons . . . against unreasonable searches and seizures.” See U.S.


       1
        A defendant may appeal a conviction based on a nolo contendere plea only if
he expressly reserves the right to appeal a prior dispositive order of the trial court. See
Brown v. State, 376 So. 2d 382, 384 (Fla. 1979); see also Fla. R. App. P.
9.140(b)(2)(A)(i).


                                            2
Const. amends. IV, XIV; Art. 1, § 12, Fla. Const. When a police officer makes a traffic

stop, the driver of the car and any passengers in the car are seized within the meaning

of the Fourth Amendment and may challenge the constitutionality of the stop. Brendlin

v. California, 551 U.S. 249, 251 (2007). Here, Foley does not contest the initial traffic

stop of the vehicle. However, to avoid infringing on the Fourth Amendment, even when

the initial traffic stop is permissible, it must last no longer than is reasonably necessary

to issue the citation. See Eldridge v. State, 817 So. 2d 884, 887 (Fla. 5th DCA 2002)

(citations omitted); Welch v. State, 741 So. 2d 1268, 1270 (Fla. 5th DCA 1999)

(citations omitted). Additionally, while the use of a narcotics dog to sniff a vehicle does

not constitute a search and may be conducted during a traffic stop, “the canine search

of the exterior of the vehicle must be completed within the time required to issue [the

traffic] citation.” Whitfield v. State, 33 So. 3d 787, 790 (Fla. 5th DCA 2010) (citations

omitted). Put differently, law enforcement’s authority from the seizure ends when tasks

tied to the traffic citation are, or reasonably should have been, completed, making the

“critical question . . . not whether the dog sniff occurs before or after the officer issues a

ticket . . . but whether conducting the sniff ‘prolongs’—i.e., adds time to—‘the stop.’”

Rodriguez v. United States, 135 S. Ct. 1609, 1616 (2015).

       In his motion to suppress, Foley essentially argued that an unreasonable delay

occurred between the time of the initial traffic stop and the issuance of the traffic citation

warning, resulting in an “illegal detention” and, therefore, an “illegal seizure” of the

evidence. At the suppression hearing, the trial court did not address the merits of

Foley’s motion. Instead, the court ruled that Foley did not have standing to contest the




                                              3
search of the car.2       We disagree.      First, as the State concedes, Foley had

acknowledged to law enforcement at the scene prior to the search that he owned the

duffel bags in the backseat of the vehicle. Thus, Foley established a proprietary interest

in what was located in one of the bags (ammunition) and had standing to contest the

search of the bag. See State v. Hernandez, 718 So. 2d 833, 836 (Fla. 3d DCA 1998)

(recognizing general rule that passenger of vehicle lacks standing to contest search of

vehicle except where passenger establishes legitimate expectation of privacy in area

searched by demonstrating ownership interest or other lawful proprietary interest in

area). Second, if the length of time of the traffic stop was prolonged by the dog sniff,

then Foley's continued detention became unlawful, and he had standing to seek to

suppress evidence obtained during the subsequent search. See Williams v. State, 869

So. 2d 750, 751–52 (Fla. 5th DCA 2004) (finding that driver held for a time that far

exceeds that which was necessary to issue the citation was illegally detained at the time

the canine search began, making the search improper and the items found illegally

seized); Powell v. State, 649 So. 2d 888, 889 (Fla. 2d DCA 1995) holding that continued

detention is illegal if reason for initial stop resolved, any fruits of search after unlawful

detention should have been suppressed).

       In summary, we reverse Foley’s convictions and sentences and the present

denial of his motion to suppress, and we remand with directions that the trial court hold

an evidentiary hearing to address the merits of his motion.

       REVERSED and REMANDED with directions.

BERGER, LAMBERT, and EDWARDS, JJ., concur.


       2
        No testimony was taken at the hearing. Additionally, the order entered is a form
order which denies the motion without explication.


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