FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Pinellas County; Frank Quesada,
Moody, Attorney General, Tallahassee, and Jonathan S. Tannen,
Assistant Attorney General, Tampa, for Appellant.
F. Plotnick of Plotnick Law, P.A., St. Petersburg, for
KHOUZAM, CHIEF JUDGE
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 State's argument that consent was implied by
Smith's 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
Smith's actions reasonably implied such consent, we
reverse the suppression order.
deputies of the Pinellas County Sheriff's 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 Peterson's
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 court's ruling on a motion to suppress,
the trial court's factual findings must be affirmed if
supported by competent, substantial evidence, while the trial
court's 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)).
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 Thompson's 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
sister's 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. Accordingly, we reverse
the order to suppress evidence from the motel room and remand
for proceedings consistent with this opinion.
VILLANTI and ...