STATE OF FLORIDA

v.

ROBERT JODY SMITH

KHOUZAM, Chief Judge. Robert 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

- 2 - 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. Two 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 Miranda1 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. At a 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 evidence. 1Miranda v. Arizona, 384 U.S. 436, 447 (1966).

- 3 - "When 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)). 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)). In 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.

- 4 - Similarly, 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. Reversed and remanded. VILLANTI and SLEET, JJ., Concur.