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

                                           IN THE DISTRICT COURT OF APPEAL

                                           OF FLORIDA

                                           SECOND DISTRICT

HEATH LANE,                        )
                                   )
           Appellant,              )
                                   )
v.                                 )                 Case No. 2D13-2656
                                   )
STATE OF FLORIDA,                  )
                                   )
           Appellee.               )
__________________________________ )

Opinion filed August 22, 2014.

Appeal from the Circuit Court for Polk
County; Catherine L. Combee, Judge,
and Oliver L. Green, Associate Senior
Judge.

Howard L. Dimmig, II, Public Defender,
and Robert D. Rosen, Assistant Public
Defender, Bartow, for Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, and C. Suzanne Bechard,
Assistant Attorney General, Tampa,
for Appellee.


NORTHCUTT, Judge.

             Heath Lane appeals following a withheld adjudication for possession of

hydrocodone. He argues, and we agree, that the circuit court erred in denying his

motion to suppress the contraband. Accordingly, we reverse.
              After completing an unrelated traffic stop, a sheriff's deputy began a

consensual encounter with Lane, an eighteen-year-old high school student who was

walking along a sidewalk nearby. The deputy turned off the lights on his patrol car and

asked to speak with Lane. Lane assented, and he also agreed to show the deputy his

identification. He handed his identification card and wallet to the deputy, who set them

on the hood of the patrol car. The deputy then asked if he could search Lane for

weapons. He later testified that he generally asks to conduct a search "as an officer

safety measure . . . when speaking with people in street encounters." Lane permitted

the search, during which the deputy felt and then retrieved some loose pills in Lane's

pants pocket. Lane said that a friend had given him the pills when he complained of a

headache. The four pills were hydrocodone, for which Lane had no prescription.

              At the suppression hearing, Lane testified that he did not feel free to leave

during the encounter and that he did not recover his identification until after his release

from jail. He argued that the consensual encounter became an illegal detention when

the deputy asked to search him without first returning his identification and wallet. The

circuit court disagreed. In its order denying the motion to suppress, the court correctly

noted that law enforcement officers are not required to tell people they are free to leave

during consensual encounters. Lane then entered a plea, reserving the dispositive

suppression issue for appeal.

              The Fourth Amendment requires the police to reasonably suspect

wrongdoing before making a warrantless seizure. Golphin v. State, 945 So. 2d 1174,

1180 (Fla. 2006). But not every encounter is a seizure. Id. "Only when the officer, by

means of physical force or show of authority, has in some way restrained the liberty of a



                                            -2-
citizen may we conclude that a seizure has occurred." Id. (quoting Terry v. Ohio, 392

U.S. 1, 19 n.16 (1968) (internal quotation marks omitted)). To determine whether a

reasonable person would think he or she was free to leave an encounter with police, we

consider the totality of the circumstances. We give deference to the lower court's

findings of fact, but we review its legal conclusions de novo. Golphin, 945 So. 2d at

1182; Horne v. State, 113 So. 3d 158, 159-60 (Fla. 2d DCA 2013).

              Both the Florida Supreme Court and the United States Supreme Court

have recognized the potential for coercion when an officer retains a person's

identification or travel documents while asking for consent to search. "While a

noncompulsory request for an individual's identification has been unlikely to implicate

the Fourth Amendment in isolation, the retention of identification during the course of

further interrogation or search certainly factors into whether a seizure has occurred."

Golphin, 945 So. 2d at 1185 (citing Florida v. Royer, 460 U.S. 491 (1983) (plurality

opinion), which found that a consent to search had been negated by a seizure when

officers retained a traveler's identification and ticket without informing him that he was

free to depart).

              Horne involved facts similar to those in this case. Brenda Horne was

walking alongside a road when a deputy stopped his patrol car to speak with her. 113

So. 3d at 159. Horne voluntarily gave the deputy her driver's license, and the deputy

retained the license when he asked for permission to search her. After Horne submitted

to the search, the deputy discovered two pills for which she had no prescription. In a

suppression motion, Horne argued that her consent to the search was obtained during




                                            -3-
an illegal detention and that it was, therefore, not freely given. The circuit court denied

the motion to suppress, but this court reversed.

              In that case, we agreed with the circuit court's conclusion that the initial

encounter, when Horne gave the deputy her driver's license, was consensual. Id. at

160. But the dispositive point was the nature of the encounter at the time Horne was

asked to consent to the search. Id. ("[T]he nature of an encounter may change at any

time during its course."). This court held that the consensual encounter became a

detention when the deputy asked for permission to search before first returning Horne's

license:

                      We conclude that the trial court's factual findings are
              supported by competent, substantial evidence but that the
              trial court erred in applying the law to the facts because
              under our de novo review, it afforded too much weight to the
              preliminary facts leading up to the warrants check and did
              not afford enough weight to those additional circumstances
              central to when the officer was actually requesting Horne's
              consent. Under the totality of the instant circumstances, the
              officer's asking to search Horne without returning her license
              outweighs the fact that she initially voluntarily spoke with the
              officer and consented to the warrants check. When all of the
              facts as found by the trial court are considered and afforded
              the appropriate weight under the applicable case law, it was
              error to conclude that a reasonable person in Horne's
              circumstances would think she was free to leave or that she
              was not detained as a matter of law.

Id. at 161-62 (emphasis added) (footnote omitted).

              The same is true in this case, and for the same reasons we conclude that

Lane's consent to the search of his person was not shown to be voluntary. See also

Brye v. State, 927 So. 2d 78, 82 (Fla. 1st DCA 2006) (holding that when deputy

retained defendant's identification after warrants check, "a reasonable person would not

have felt that he or she was free to leave" and defendant's subsequent consent to

                                            -4-
search was not shown to be voluntary). When reaching this conclusion, we have

considered the totality of the circumstances, including Lane's youth, the deputy's

retention of Lane's wallet and identification, and the fact that Lane was not told of his

right to refuse a search. See Horne, 113 So. 3d at 161 n.2 (explaining that heavy

consideration was given to officer's failure to advise that Horne was free to leave

instead of consenting to search); cf. State v. Milwood, 430 So. 2d 563, 565 (Fla. 3d

DCA 1983) (reversing suppression of evidence and finding voluntary consent when "the

defendant's airline ticket and identification were returned to him prior to his giving

consent to the search and that, additionally, the defendant was advised of his right to

refuse consent").

              We reverse and remand with directions to discharge Lane.




VILLANTI and WALLACE, JJ., Concur.




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