Officer asking for consent before handing back driver license turns consensual encounter into a “stop” and consent invalid

Horne v. State, 38 Fla. L. Weekly D1155a (Fla. 2d DCA May 24, 2013):  Officer stopped Hornse while she was walking, ostensibly as a consensual encounter.  She gave him her driver’s license, and a computer search returned no active warrants. At some point during the encounter, the deputy asked to conduct a search of Horne that would include reaching into her pockets. Horne consented to the search.  He found controlled substances in her jacket pocket.

She filed a motion to suppress, arguing that the officer’s failure to return her driver’s license after completing the warrants check converted a consensual encounter into a detention and that therefore she could not have freely consented to the search of her person.

The FLorida criminal appeal court noted that there was competent, substantial evidence in the record to support the trial court’s determination that Horne voluntarily gave her license to the officer, and as such, we agree that her initial encounter with the police was consensual.  However,  noting that the nature of an encounter may change at any time during its course, the appeal court  focused on the nature of the encounter at the time of the officer’s request to search.  The Second District Court of Appeal noted that at that time, any basis for the encounter with Horne, consensual or otherwise, had ended at the conclusion of Horne’s clear warrants check.

The criminal appeal court  concluded

[T]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. Because the trial court erroneously denied the motion to suppress on that basis, we reverse Horne’s conviction and sentence.

COMMENTARY:  This case presents two common problems, one on the street and one in the courtroom.  First, the line of the Fourth Amendment is blurred on the streets, and law enforcement officers regularly cross it – sometimes inadvertently, sometimes on purpose.  Second, defense attorneys are not always up-to-date on search and seizure law, and can miss issues like this one.  Call New Port Richey Criminal Defense attorney Joe Bodiford at 727-843-4009 or visit

Author: Joe Bodiford

Tallahassee criminal defense attorney. Florida Bar Board Certified Criminal Trial Lawyer, Nationally Board Certified in Criminal Trial Advocacy, and AV* rated by Martindale-Hubbell. Former adjunct professor of law and co-director of the Trial Team at Florida State University College of Law; former adjunct professor of law at Stetson University College of Law (Florida criminal procedure, Trial Advocacy). Curator of Advocacy Underground. Practicing in the area of State and Federal Criminal Trial and Appeals. Visit us at!