
    STATE of Florida, Appellant, v. Kirk B. McCRERY, Cynthia Anita Radford & Lloyd White, Appellees.
    No. AN-470.
    District Court of Appeal of Florida, First District.
    March 24, 1983.
    Rehearing Denied April 26, 1983.
    
      Jim Smith, Atty. Gen., David P. Gauldin, Asst. Atty. Gen., for appellant.
    Larry G. Turner and Thomas W. Kurrus, Gainesville, for Kirk B. McCrery, appellee.
    Michael L. Bryant and Jack Ross, of Birr, Bryant & Saier, Gainesville, for Cynthia Anita Radford and Lloyd White, appellees.
   WENTWORTH, Judge.

The state appeals from orders of the trial court dismissing charges of possession of marijuana filed against appellants Radford and White and suppressing certain items of evidence sought to be introduced against McCrery.

From our study of the briefs and record, we find that the undisputed facts are susceptible of the construction placed upon them by the trial court, as evidenced by the orders being appealed. We therefore affirm.

The state stipulated that the marijuana could not be seen or smelled. Rent was in fact paid by McCrery, and no evidence was presented that Radford had knowledge of the drug’s presence or that her personal possessions were in use in the rooms from which confiscations were made. The decisions relied on by appellant either do not present the pertinent question of constructive possession or involved evidence other than mere accessibility which raised an inference of knowledge. Cummings v. State, 378 So.2d 879 (Fla. 1st DCA 1979). This case involves a house where differing quantities of marijuana were found in separate rooms, and there is no basis for inference of knowledge other than accessibility. See also Mishmash v. State, 423 So.2d 446 (Fla. 1st DCA 1982).

Appellant and appellees agree on the standard for the admission of evidence obtained outside the scope of the search warrant. However, because we are not able in this case to find that a radio scanning device and pistol (with earplugs) found in the same house with contraband are per se relevant evidence, we conclude the trial court could properly suppress those items. There is no evidence as to the location of the gun and scanner. We do not consider appellant’s argument that McCrery abandoned his privacy interest because it was not made to the trial court.

Affirmed.

JOANOS, J., concurs.

SHIVERS, J., dissents with opinion.

SHIVERS, Judge,

concurring in part and dissenting in part.

I respectfully concur in part and dissent in part.

I concur in the affirmance of the trial court’s order granting defendant White’s motion to dismiss, I dissent from the majority’s affirmance of the trial court’s order granting defendant Radford’s motion to dismiss and I dissent from the majority’s af-firmance of that part of the trial court’s order granting defendant McCrery’s motion to suppress evidence.

Defendant Radford leased and occupied the premises. The phone and utilities were registered in Radford’s name. From this and other evidence the jury could have concluded that defendant Radford exercised dominion and control over the drugs found on the premises. The jury could have found defendant Radford had knowledge of the drugs’ presence on the premises.

In Tillman v. State, 353 So.2d 948 (Fla. 1st DCA 1978), we approved the test described in Amato v. State, 296 So.2d 609 (Fla. 3d DCA 1974):

“... the test to be applied on review of a denial of a motion for judgment of acquittal is not whether, in the opinion of the trial court or the appellate court, the evidence fails to exclude every reasonable hypothesis but that of guilt but, rather, whether the jury might reasonably so conclude. Vick v. United States, 216 F.2d 228 (5th Cir.1954). The jury is the pivotal point at which evidence is aimed, not the courts.”

It appears the trial court erred in granting defendant Radford’s motion to dismiss.

As to defendant McCrery (who did not file a motion to dismiss) it appears the trial court erred in granting McCrery’s motion to suppress the gun and Bearcat scanner. The officers were on the premises in the course of a legitimate search for cannabis. The nature of the gun and the Bearcat scanner as evidence was immediately apparent and the officers were entitled to seize them. Also, by abandoning the gun and Bearcat scanner when he dove out the window in an attempt to escape, defendant McCrery had no Fourth Amendment right to be secure against this kind of search at the time it was made. See United States v. Edwards, 441 F.2d 749 (5th Cir.1971).  