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

IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT

SCOTTY THOMPSON, ) ) Appellant, ) ) v. ) Case No. 2D13

- 5874 ) STATE OF FLORIDA, ) ) Appellee. )

_ ____________________________ _ __ ___ ) Opinion filed July 15, 2015. Appeal from the Circuit Court for Polk County; Catherine L. Combee, Judge. Howard L. Dimmig, II, Public Defender, and Sharon Morgan Vollrath, Special Assistant Public Defender, Bartow, f or Appellant. Pamela Jo Bondi, Attorney General, Tallahassee, and Brandon R. Christian, Assistant Attorney General, Tampa, for Appellee.

KHOUZAM, Judge.

Scotty Thompson appeals his conviction s and sentence s for manufacture of methamphetamine; pos session of a listed chemical; actual or constructive possession of a structure used for trafficking, sale, or manufacture of controlled substances; and po ssession of drug paraphernalia. Thompson argues that the trial- 2

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court erred in denying his motion to s uppress and motion for judgment of acquittal. We affirm

. I. BACKGROUND

The record shows that i n response to a burglary, officers tra ced a phone found at the victim ' s residence to a codefendant at the address of Thompson ' s sister. Officers testified that T hom pson ' s sister invited them into the house. Thompson ' s sister , however, testified that the police asked if Thompson was there and she said, " yes " while gesturing toward Thompson who was sitting on the couch . S he maintained that she did
not invite them in , instead testifying that she was pushed out of the way by the police officer s . Thompson offered testimony stating

[w] ell, I noticed that somebody knocked on the door and my sister answered the door, and I heard them ask for me and she said, ' Yeah' and she pointed at me. Like I was on the couch. And then they walked right by her and asked me to get up and asked me if I could talk to them. Officers spoke with Thompson and asked for permission to search his bed room. Thompson refused, stating that he did not want his bed room searched because there were needles with methamphetamine in the bed room. Based on this and other statements, the officers obtained a s earch warrant . They discovered stolen items as well as illegal drugs in the residence

. Thomps on was charged with burglary while armed; two counts of grand theft; manufacture of methamphetamine; possession of a listed chemical; actual or constructive possession of a structure used for trafficking, sale, or manufacture of controlled substances; poss ession of methamphetamine; possession of drug paraphernalia; and possession of cannabis.- 3

- T he defense moved to suppress evidence resulting from the search on the grounds that the officers did not have Thompson's sister's consent to enter the home
and that the officers had omitted this information in bad faith in the application for a
warrant. The court denied the motion to suppress , finding that Thompson ' s sister ' s testimony was not credible. The court also found no merit in the allegations concerning
th e application for a search warrant.

A jury trial was held. D efense moved for a judgment of a cquittal on the ground that the contraband was f ound in a room where Thompson was a joint occupant. Thom p son argued that the State failed to prove he had the abi lity to exert dominion and control over the items . He also pointed out that there was no presumptive testing or chemical analysis on the contraband

. The motion was denied. Ultimately, the jury found Thompson guilty of manufacture of methamphetamine; pos session of a listed chemical; actual or constructive possession of a structure used for trafficking, sale, or manufacture of controlled substances; and possession of drug paraphernalia and acquitted him on the remaining counts. He was sentenced to seven y ears in prison

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II. MOTION TO SUPPRESS
A ruling on a motion to suppress reaches review clothed wi th a presumption of correctness, and the reviewing court must interpret the evidence and reasonable inferences in a manner consistent with the trial court's ruli ng. Connor v. State , 803 So. 2d 598, 608 (Fla. 2001). However, the application of the law to the facts, in particular whether a suspect is " in custody , " is a legal question subject to de novo review. Id

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Thompson argues that the trial court erred in de nying his motion to suppress because the law enforcement officers did not have consent to enter the home.- 4

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The Fourth Amendment to the U.S. Constitution prohibits warrantless searches; however, a warrantless search may be validated if the State proves " the search falls into an established constitutional exception to the warran t requirement, such as consent. " Alamo v. State , 891 So. 2d 1059 , 1061 (Fla. 2d DCA 2004) ; s ee also Schneckloth v.
Bustamonte , 412 U.S. 218 , 219 (1973 ). Whether consent is voluntaril y given is a question of fact determined considering the totality of the circumstances

. Schneckloth , 412 U.S at 227

. Consent can be given by the suspect himself or by a third party. See Cooper v. State , 706 So. 2d 369, 370 (Fla. 2d DCA 1998). Further, " police may accept an invitation to make a warrantless entry into p remises only under circumstances that would cause a man of reasonable caution to believe that the person making the
inv itation is authorized to do so. " Id

. at 372 (citing Illinois v. Rodri guez , 497 U.S. 177 (1990) )

. Although there was conflicting evidence as to whether Thompson ' s sister had invited the officers into the residence, sufficient evidence exists to support a finding that the officers reasonably percei ved Thompson ' s sister ' s res ponse ( in the form of a gesture ) as an invitation to enter the residence and she in fact had the authority to invite
them inside. Furthermore, Thompson argues that his incriminating statement should have been suppressed because he made it pursuant to an i nterrogation ; h owever, evidence was presented showing he volunteered the information. Incriminating
statements are admissible where they are made voluntarily and spontaneously and are not the product of interrogation. Hayward v. State , 24 So. 3d 17, 36 ( Fla. 2009), as revised on denial of reh ' g (Dec. 10, 2009) (quoting Rosher v. State , 319 So. 2d 150, 152 (Fla. 2d DCA 1975) )

. The determination of whether the evidence sho uld have been- 5

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suppressed depends on the type of encounter that occurred between law e nforcement
and the defendant

. A consensual encounter involves minimal police contact. As the Florida Supreme Court described in Popple v. State , 626 So. 2d 185, 186 (Fla. 1993),

" [d] uring a consensual encounter a citizen may either voluntarily comply wit h a police officer's requests or choose to ignore them. Because the citizen is free to leave during a consensual encounter, constitutional safeguards are not invoked. " Therefore, a consensual encounter is not an interrogation and does not t rigger Miranda 1 warning s

.

In the instant c ase, the officers testified that they asked Thompson for consent to search the bedroom and he refused, answering that there were needles with metha mphetamine in the room. Thompso n did not provide the information in response
t o an inqui ry about the contents of the room; instead, it was volunteered pursuant to a consensual encounter between Thompson and the officers . Tho mpson was free to simply reply " no " to the search request or ignore the officers rather than volunteering
inf ormation about the contents of the bedroom. Accordingly, the court did not err in denying Thompson ' s motion to suppress.

III. MOTION FOR JUDGMENT OF ACQUITTAL A motion for judgment of acquittal is a ruling on an iss ue of law, thus the
trial court ' s order is reviewed de novo, viewing the evidence in a light most favorable to the S tate. See Gizaw v. State , 71 So. 3d 214, 217 (Fla. 2d DCA 2011).

Thompson argues that the court e rred in denying his motion for judgment of a cquittal because the State failed to p rove that he had knowledge of or the ability to exercise dominion and control over the contraband found in a jointly occupied room.

1 Miranda v. Arizona , 384 U.S. 4 36 (1966)

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Add itionally, Thompson argues the S tate did not prove he possessed listed chemicals knowing or hav ing reasonable cause to b elieve that the y would be used to unlawfully manufacture a controlled substance.

"A motion for judgment of acquittal should be granted in a circu ms tantial evidence case if the [S] tate fails to present evidence from which the jury can exclude
every reason able hypothesis except that of guilt. " State v. Law , 559 So. 2d 187, 188 (Fla. 1989). However, " [t]he [S] tate is not required to ' rebut conclu sively every possible variation ' of events which could be inferred from the evidence, but only to introduce
comp etent evidence which is inconsistent with the defendant's theory of events. " Id. at
1 89 (citation omitted).

I n the instant case, the evidence was sufficient to support Thompson's
conviction and rebut his allegation that he did not know the chemicals were to be used for the production of methamphetamine or that he did not possess them. In addition to the testimony showing Thompson refused to allow a search of the bedroom because there were needles containing methamphetamine , detectives found in the bedroom the chemicals needed to produce methamphetamine with the "one pot" method (ether, ammonium nitrates, pseudoephedrine, lithium). Detectives also found glass pipes and baggies that tested positive for methamphetamine as well as digital scales often used to

we igh methamphetamine for sale. Alt hough the chemicals were not tested, they were found in their original packaging and a detective testified as to the labels on the bottles and their contents. Additionally, Thom p son admitted that he smoked methamphetam ine, his girlfriend also admitted that they used methamp hetamine together, and Thompson' s brother admitted that he received methamphetamine from- 7

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Thompson. Testimony showed that Thompson was staying in that bedroom of his
sist er ' s residence with his girlfr iend, where they both shared access and control of the

room. This evidence was sufficient t o support Thompson's conviction and was inconsistent with Thompson ' s claim that he did not know the chemicals were to be used for the production of methamphetamine o r that he did not possess them. The trial court did not err in denying Thompson ' s motion for judgment of acquittal, and thus we affirm
his conviction and sentence.

Affirmed.

VILLANTI, C.J., and LUCAS , J., Concur.