from the Circuit Court for Pinellas County; Frank Quesada,
Moody, Attorney General, Tallahassee, and Jonathan S. Tannen,
Assistant Attorney General, Tampa, for Appellant.
Plotnick of Plotnick Law, P.A., St. Petersburg, for Appellee.
Smith was charged with possession of crack cocaine,
marijuana, and drug paraphernalia. He filed a motion to
suppress evidence collected from his motel room, alleging
that two deputy sheriffs conducted an illegal search there
with neither a warrant nor consent. The trial judge rejected
the States argument that consent was implied by Smiths
actions and granted the motion, holding that implied consent
is insufficient to dispense with the warrant requirement. But
because consent to a search can be implied from actions or
nonverbal communication, and because Smiths actions
reasonably implied such consent, we reverse the suppression
deputies of the Pinellas County Sheriffs Office testified
that they were investigating the theft of an automobile when
they located the vehicle near a Days Inn motel. They learned
that the car thief, Jennifer Peterson, was in one of the
rooms of this motel. They knocked on the door of the room and
identified themselves as law enforcement. Smith answered the
door, and the deputies asked if Peterson was in the room. In
response, Smith opened the door further, stepped aside, and
pointed to a woman on one of the beds. The deputies walked
in, arrested Peterson, and asked Smith to sit on an adjacent
bed. They found drug paraphernalia and rocks of crack cocaine
on Petersons person. They
also noticed a burnt metal push rod near where Smith was
sitting, a tool commonly used to clean out crack pipes. Upon
making this observation, the deputies read Smith his
Miranda  rights and then asked him if he had
any illegal substances in the room with him. Smith admitted
that he had marijuana in a suitcase and crack cocaine hidden
under one of the nightstands.
hearing on the motion to suppress evidence from the motel
room, Smith argued that his behavior at the door did not
authorize the deputies to enter. The trial judge agreed and
held that express consent was required to waive the warrant
requirement. Concluding that any consent given by Smith was
only implied, the court suppressed the drug and paraphernalia
reviewing a trial courts ruling on a motion to suppress, the
trial courts factual findings must be affirmed if supported
by competent, substantial evidence, while the trial courts
application of the law to those facts is reviewed de
novo." State v. Battle, 232 So.3d 493, 496
(Fla. 2d DCA 2017) (quoting Hicks v. State, 929
So.2d 13, 15 (Fla. 2d DCA 2006)).
Warrantless searches are generally prohibited by the Fourth
Amendment to the U.S. Constitution, though voluntary consent
to a search is an exception to this rule. Thompson v.
State, 170 So.3d 856, 859 (Fla. 2d DCA 2015) (citing
Alamo v. State, 891 So.2d 1059, 1061 (Fla. 2d DCA
2004)). Whether there was voluntary consent in a given case
is a fact question determined by the totality of the
circumstances. Thompson, 170 So.3d at 859. Such
consent need not always be expressly granted but can take
"the form of words, gesture, or conduct." State
v. Smith, 172 So.3d 993, 998 (Fla. 1st DCA 2015)
(quoting Ingram v. State, 928 So.2d 423, 430 (Fla.
1st DCA 2006)).
Thompson, this court considered a motion to suppress
under circumstances very similar to those here. Police
officers had traced a phone found at a burglary scene to the
home of defendant Scotty Thompsons sister.
Thompson, 170 So.3d at 858. At the door, the
officers asked her if Thompson was in the house, and she
responded "yes" while gesturing towards him sitting
on a couch. Id. This court held that the sisters
gesture reasonably implied consent to enter the home and talk
to Thompson, a conversation which led to a warrant and the
collection of controlled substances from his room.
Id. at 859.
in this case Smith opened his motel room door, confirmed that
Peterson was inside, and pointed at her. In fact, unlike
Thompson wherein the sister testified that the
police pushed her out of the way, id. at 858, it was
undisputed that Smith opened the door wide and stepped out of
the way of the deputy sheriffs. It was thus reasonable to
believe that Smith had invited them in, and express consent
was not required to justify entry. ...