               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, for Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Brandon R. Christian,
Assistant Attorney General, Tampa, for
Appellee.



KHOUZAM, Judge.

              Scotty Thompson appeals his convictions and sentences for manufacture

of methamphetamine; possession 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. Thompson argues that the trial
court erred in denying his motion to suppress and motion for judgment of acquittal. We

affirm.

              I.     BACKGROUND

              The record shows that in response to a burglary, officers traced a phone

found at the victim's residence to a codefendant at the address of Thompson's sister.

Officers testified that Thompson'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. She maintained that she did

not invite them in, instead testifying that she was pushed out of the way by the police

officers. 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 bedroom.

Thompson refused, stating that he did not want his bedroom searched because there

were needles with methamphetamine in the bedroom. Based on this and other

statements, the officers obtained a search warrant. They discovered stolen items as

well as illegal drugs in the residence. Thompson 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; possession of methamphetamine;

possession of drug paraphernalia; and possession of cannabis.




                                            -2-
              The 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

the application for a search warrant.

              A jury trial was held. Defense moved for a judgment of acquittal on the

ground that the contraband was found in a room where Thompson was a joint occupant.

Thompson argued that the State failed to prove he had the ability 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; possession 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 years in prison.

              II.    MOTION TO SUPPRESS

              A ruling on a motion to suppress reaches review clothed with a presumption

of correctness, and the reviewing court must interpret the evidence and reasonable

inferences in a manner consistent with the trial court's ruling. 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.

              Thompson argues that the trial court erred in denying his motion to

suppress because the law enforcement officers did not have consent to enter the home.




                                            -3-
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 warrant requirement, such as consent."

Alamo v. State, 891 So. 2d 1059, 1061 (Fla. 2d DCA 2004); see also Schneckloth v.

Bustamonte, 412 U.S. 218, 219 (1973). Whether consent is voluntarily 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 premises only under circumstances that

would cause a man of reasonable caution to believe that the person making the

invitation is authorized to do so." Id. at 372 (citing Illinois v. Rodriguez, 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 perceived Thompson's sister's response (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 interrogation; however,

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 should have been




                                            -4-
suppressed depends on the type of encounter that occurred between law enforcement

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 with 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 trigger Miranda1 warnings.

              In the instant case, the officers testified that they asked Thompson for

consent to search the bedroom and he refused, answering that there were needles with

methamphetamine in the room. Thompson did not provide the information in response

to an inquiry about the contents of the room; instead, it was volunteered pursuant to a

consensual encounter between Thompson and the officers. Thompson was free to

simply reply "no" to the search request or ignore the officers rather than volunteering

information 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 issue of law, thus the

trial court's order is reviewed de novo, viewing the evidence in a light most favorable to

the State. See Gizaw v. State, 71 So. 3d 214, 217 (Fla. 2d DCA 2011).

              Thompson argues that the court erred in denying his motion for judgment

of acquittal because the State failed to prove 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. 436 (1966).


                                            -5-
Additionally, Thompson argues the State did not prove he possessed listed chemicals

knowing or having reasonable cause to believe that they would be used to unlawfully

manufacture a controlled substance.

              "A motion for judgment of acquittal should be granted in a circumstantial

evidence case if the [S]tate fails to present evidence from which the jury can exclude

every reasonable 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 conclusively every possible

variation' of events which could be inferred from the evidence, but only to introduce

competent evidence which is inconsistent with the defendant's theory of events." Id. at

189 (citation omitted).

              In 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

weigh methamphetamine for sale. Although 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, Thompson admitted that he smoked

methamphetamine, his girlfriend also admitted that they used methamphetamine

together, and Thompson's brother admitted that he received methamphetamine from




                                            -6-
Thompson. Testimony showed that Thompson was staying in that bedroom of his

sister's residence with his girlfriend, where they both shared access and control of the

room. This evidence was sufficient to 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 or 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.




                                           -7-
