Meekins, David O.

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0261-10

DAVID O. MEEKINS, Appellant

v.

THE STATE OF TEXAS

ON STATE’S PETITION FOR DISCRETIONARY REVIEW
FROM THE SEVENTH COURT OF APPEALS
LUBBOCK COUNTY

C OCHRAN, J., delivered the opinion of the Court in which K ELLER, P.J. and
W OMACK, J OHNSON, K EASLER, and H ERVEY, JJ., joined. K ELLER, P.J. and
J OHNSON, J., filed concurring opinions. M EYERS, J., filed a dissenting opinion in
which P RICE, J., joined.
OPINION

An officer stopped appellant’s car for a traffic offense and, during that stop, asked

if he could search the car. The officer said that appellant consented. During a consensual

search of appellant’s pocket, the officer found a pill bottle containing marijuana. Appellant

filed a motion to suppress that evidence, arguing that he did not voluntarily consent to the
 Meekins Page 2

search of his car and therefore his constitutional rights were violated.1 After a hearing, the

trial judge denied the motion. Appellant pled guilty to possession of marijuana and appealed

the trial judge’s ruling. The court of appeals reversed the trial judge, holding that the State

failed to carry its burden of proving consent by clear and convincing evidence.2 We granted

the State’s petition for discretionary review3 and hold that the trial judge’s ruling that

appellant consented to the search of his car is supported by the record. We therefore reverse

the court of appeals.

I.

A. Background

One January night, Officer Tony Williams and his recruit, Officer Matt Barber, were

patrolling a residential neighborhood just south of the Texas Tech University campus. The

1
U.S. CONST . amend. IV.; TEX . CONST . art. 1, § 9.
2
Meekins v. State, 303 S.W.3d 25 (Tex. App.–Amarillo 2010).
3
The State’s three grounds for review are as follows:
1. Must consent be evaluated only from selected words spoken in the consent-request
exchange, taken in isolation, or must the reasonable inferences and implications arising
from the totality of the circumstances surrounding that exchange be considered?
2. When the totality of the facts and circumstances shows the officer’s belief that he
received consent to search is objectively reasonable, may a reviewing court reverse a trial
court’s ruling in accord with that belief, employing a de novo review focusing only on
one question and answer during the entire exchange?
3. Even if appellant’s consent to search his car was ambiguous or even invalid, did
appellant’s subsequent actions in reaching for his pocket (where the marijuana was
hidden), and in granting independent consent to search his pocket, attenuate any taint
from the prior actions?
Because we resolve this case based on the validity of consent, we need not address the State’s
third ground for review and therefore dismiss it.
 Meekins Page 3

narcotics unit of the Lubbock Police Department suspected that a house near the intersection

of 23rd and University was an active distribution center for marijuana, so Officer Williams

decided to conduct surveillance on it from across the street. He had done so before and made

several previous narcotics arrests of people leaving the house. Shortly after they began

watching the house, appellant and another man came out of the front door and began “a

pretty long walk” down the street to a car. This was a particularly cold night, and Officer

Williams–his suspicions already piqued–thought it odd that appellant would park so far from

the house when there were several much closer parking spots.

The officers decided to follow as appellant began to drive away. When appellant

failed to signal a left turn at the end of the block, the officers made a traffic stop. The mobile

video recorder (dash cam) activated immediately after the officers got out of their squad car,

and the audio recorder started as Officer Williams began speaking to appellant through the

driver’s side window.

Appellant gave the officers his driver’s license and proof of insurance; Officer Barber

ran a warrant check; and Officer Williams stood watch over the two men in the car. Officer

Williams thought appellant was acting very nervous: “He was looking around the vehicle

a lot. He wasn’t giving me direct answers. He wasn’t really talking to me at all. He didn’t

want to look at me.” Even his voice sounded nervous. It was this nervousness, coupled with

having seen appellant leave a suspected drug house, that led Officer Williams to ask for

appellant’s consent to search his car.
 Meekins Page 4

That conversation went as follows:4

Officer Williams: You don’t have anything illegal in the vehicle, no weapons or
anything like that?

Appellant: No.

Officer Williams: You don’t mind if we take a look?

Appellant: (Inaudible.) Look in the car or what?

Officer Williams: Yeah.

Appellant: I don’t have anything.

Officer Williams: Okay. You don’t mind if I look? It’s yes or no, bud.

Appellant: What do you think?

Officer Williams: What do I think?

Appellant: Yeah.

Officer Williams: I’m asking you if I can look in the car.

Appellant: (Inaudible.)

Officer Williams: Don’t reach around, bud, just in case you got a gun.

Appellant: I ain’t got no gun or nothing.

Officer Williams: Okay. You don’t mind if we look?

Appellant: I just – (Inaudible.) That’s it (Inaudible.)

Officer Williams: Okay.

4
We quote the conversation from a transcript written by the court reporter from the dash
cam’s DVD. The DVD was entered into evidence, but the transcript was not, although it was
included in the record on appeal.
 Meekins Page 5

Appellant: (Inaudible.)

Officer Williams: I’m asking if I can look in your vehicle. It’s yes or no.

Appellant: (Inaudible.)

Officer Williams: Is there anything else you might have? You seem a little nervous,
you know what I’m saying? You’re making me nervous.

Appellant: Naw, I ain’t nervous.

Officer Williams: Okay. Do you have anything illegal in your vehicle?

Appellant: No.

Officer Williams: Okay. Do you mind if I look?

Appellant: I guess.5

During this thirty-second conversation, Officer Williams asked appellant for his

consent to search the car six times. After understanding appellant to consent, Officer

Williams asked him to get out of his car so that he could do a pat-down search. Once

appellant stepped out, “the first thing he did was reach into his pocket,”6 a move that alarmed

the officer and prompted him to grab appellant’s arm and restrain him against the vehicle.

Officer Williams asked appellant if he could search his pocket, and, when appellant said

“Yes,” the officer found a pill bottle containing marijuana in the pocket. Appellant was then

arrested. In total, the traffic stop lasted approximately nine minutes.

5
Officer Williams testified that appellant said “Yes,” not “I guess.” At least it sounded
like “Yes” to him, both during the stop and when he listened to the DVD recording in court.
6
When Officer Williams asked what he was reaching for in his pocket, appellant
responded, “I’m trying to put my wallet back.”
 Meekins Page 6

Appellant filed a motion to suppress, and the trial judge held a hearing on that motion.

Officer Williams was the only witness. Appellant argued that Officer Williams’s request to

search appellant’s car was not made in good faith because “it was his intention to search that

car regardless of what happened that night.” Appellant further asserted that his alleged

consent was obtained only by coercion as demonstrated by the officer’s tone, manner, and

“rapid-fire” requests to search, as well as appellant’s equivocal response of “I guess.”

The trial court denied appellant’s motion and agreed with the State that appellant had

voluntarily consented to the search. Appellant filed a request for findings of fact and

conclusions of law which the trial judge granted, but no findings are in the appellate record.7

B. The Court of Appeals

A divided court of appeals reversed the trial court, holding that “the State failed to

clearly and convincingly prove that appellant granted the officer positive, unequivocal, and

voluntary consent to search his car.”8 The majority opinion explained that the combination

of Officer Williams’s confusingly worded final question, together with appellant’s

7
The State filed a “Suggestion of Abatement” in the court of appeals requesting that the
case be abated for the trial judge to enter findings of fact and conclusions of law as appellant had
requested. The court of appeals denied that request without comment. Regardless of whether it
should have permitted the entry of the required findings of fact, appellant did not object to the
denial of that motion. The parties appear content with the record as it presently stands, and we
can determine the factual basis of the trial judge’s ruling. Therefore, we view all of the evidence
in the light most favorable to the trial judge’s ultimate ruling. State v. Garcia-Cantu, 253
S.W.3d 236, 241 (Tex. Crim. App. 2008); State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App.
2000).
8
Meekins, 303 S.W.3d at 28.
 Meekins Page 7

evasiveness in answering, painted “not a picture of clarity or unequivocation, but rather one

of vacillation and hesitance.”9 The dissent took a more deferential approach to the judge’s

ruling. Although the dissent agreed that appellant’s answers could be described as “evasive,”

that “same evidence permitted the trial court to conclude appellant did not refuse the officer

consent to search his car.”10 We granted the State’s petition to address the deference due to

a trial judge’s implied factual findings of a voluntary consent to search under the totality of

the circumstances.

II.

A. Consent to Search

Under the Fourth and Fourteenth Amendments, a search conducted without a warrant

based on probable cause is “per se unreasonable . . . subject only to a few specifically

established and well-delineated exceptions.”11 One of those exceptions is a search conducted

with the person’s voluntary consent.12 The validity of a consent to search is a question of fact

to be determined from all the circumstances.13 A person’s consent to search can be

communicated to law enforcement in a variety of ways, including by words, action, or

9
Id.
10
Id. at 31 (Campbell, J., dissenting).
11
Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973) (quoting Katz v. United
States,389 U.S. 347, 357 (1967)).
12
Schneckloth, 412 U.S. at 219.
13
Id. at 226-27; see also Ohio v. Robinette, 519 U.S. 33, 40 (1996); Maxwell v. State, 73
S.W.3d 278, 281 (Tex. Crim. App. 2002).
 Meekins Page 8

circumstantial evidence showing implied consent.14 “But the Fourth and Fourteenth

Amendments require that a consent not be coerced, by explicit or implicit means, by implied

threat or covert force.”15 The voluntariness of a person’s consent is also a question of fact16

that is determined by analyzing all of the circumstances of a particular situation.17 The trial

judge must conduct a careful sifting and balancing of the unique facts and circumstances of

each case in deciding whether a particular consent search was voluntary or coerced.18

“Reasonableness” is the touchstone for the Fourth Amendment; “reasonableness” is

also the touchstone for determining voluntary consent to search.19 The Supreme Court has

explained, that “the standard for measuring the scope of consent under the Fourth

Amendment is that of ‘objective’ reasonableness–what would the typical reasonable person

14
See Valtierra v. State, 310 S.W.3d 442, 451-52 (Tex. Crim. App. 2010) (holding
consent to enter defendant’s apartment and speak with a suspected runaway in bathroom was
sufficient, combined with other facts, to support implied consent to walk down the apartment
hallway); Johnson v. State, 226 S.W.3d 439, 440-41 (Tex. Crim. App. 2007) (calling 911 and
asking for police assistance constituted implied consent for police to enter defendant’s home and
investigate a homicide); Gallups v. State, 151 S.W.3d 196, 201 (Tex. Crim. App. 2004) (hand
gesture made towards officer held to be sufficient consent for the officer to enter defendant’s
home).
15
Schneckloth, 412 U.S. at 228. The Supreme Court then set out the converse: “[I]f under
all the circumstances it has appeared that the consent was not given voluntarily–that it was
coerced by threats or force, or granted only in submission to a claim of lawful authority–then we
have found the consent invalid and the search unreasonable.” Id. at 233.
16
Gutierrez v. State, 221 S.W.3d 680, 686 (Tex. Crim. App. 2007).
17
Schneckloth, 412 U.S. at 233.
18
Id.
19
Florida v. Jimeno, 500 U.S. 248, 250-51 (1991); Valtierra, 310 S.W.3d at 448-49.
 Meekins Page 9

have understood by the exchange between the officer and the suspect?”20 In other words,

courts review the totality of the circumstances of a particular police-citizen interaction from

the point of view of the objectively reasonable person, without regard for the subjective

thoughts or intents of either the officer or the citizen.21 The ultimate question is whether the

person’s “‘will ha[s] been overborne and his capacity for self-determination critically

impaired,’” such that his consent to search must have been involuntary.22

Under federal law, the government must show voluntary consent by a preponderance

of the evidence,23 but Texas has long stated that the State must “prove the voluntariness of

a consent to search by clear and convincing evidence.”24 While this burden differs somewhat

20
Jimeno, 500 U.S. at 251; see also Valtierra, 310 S.W.3d at 449.
21
Maryland v. Macon, 472 U.S. 463, 470-71 (1985) (“Whether a Fourth Amendment
violation has occurred ‘turns on an objective assessment of the officer’s actions in light of the
facts and circumstances confronting him at the time,’ and not on the officer’s actual state of mind
at the time the challenged action was taken.”) (quoting Scott v. United States, 436 U.S. 128, 136
(1978)).
22
United States v. Watson, 423 U.S. 411, 424 (1976) (quoting Schneckloth, 412 U.S. at
225).
23
United States v. Matlock, 415 U.S. 164, 178 n.14 (1974) (“[T]he controlling burden of
proof at suppression hearings should impose no greater burden than proof by a preponderance of
the evidence” to show voluntary consent to search); United States v. Arias-Robles, 477 F.3d 245,
248 (5th Cir. 2007) (imposing a preponderance of the evidence burden on the government to
show voluntariness of consent).
24
State v. Ibarra, 953 S.W.2d 242, 245 (Tex. Crim. App. 1997). It is important to
distinguish the burden of proof–clear and convincing evidence–from the separate, but not legally
determinative, issue of “how” a person consented–clearly, convincingly, positively,
unequivocally, and so forth. The burden of proof question deals with the quantity and quality of
evidence to establish that a person did, in fact, consent to a search, regardless of whether he did
so only after initially hestitating and equivocating. To ensure that the right legal issue is
addressed, a reviewing court could pose the question as follows: Could a rational trier of fact
 Meekins Page 10

from that employed in the federal system, the legal analysis is the same in both Texas and

federal courts: whether consent was voluntary is a factual question and must be analyzed

based on the totality of the circumstances.25 Trial courts may consider numerous factors in

that analysis.26

B. Standard of Review

Because issues of consent are necessarily fact intensive, a trial court’s finding of

conclude, by clear and convincing evidence (less than beyond a reasonable doubt), based upon all
of the facts and logical inferences that can be drawn from those facts, and in the light most
favorable to the prosecution, that Mr. X voluntarily consented to the search? Cf. Jackson v.
Virginia, 443 U.S. 307, 319 (1979) (in determining legal sufficiency of the evidence “the relevant
question is whether, after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.”); United States v. Matlock, 415 U.S. at 178 (suggesting that prosecution sustained its
burden of proving, by preponderance of evidence, that evidence was legally sufficient to establish
consent to search). If a rational trier of fact could so conclude (even though other rational triers
of fact might disagree) then the trial judge’s factfinding must stand. See Schneckloth v.
Bustamonte, 412 U.S. at 226-27 (determining the factual question of whether a defendant
voluntarily consented to a search by examining the totality of the surrounding circumstances).
25
Schneckloth, 412 U.S. at 227; Johnson v. State, 226 S.W.3d 439, 443 (Tex. Crim. App.
2007).
26
See, e.g., United States v. Pena, 143 F.3d 1363, 1367 (10th Cir. 1998). The Tenth
Circuit explained,
In determining whether a consent to search was free from coercion, a court should
consider, inter alia, physical mistreatment, use of violence, threats, threats of
violence, promises or inducements, deception or trickery, and the physical and mental
condition and capacity of the defendant within the totality of the circumstances. An
officer’s request for consent to search does not taint an otherwise consensual
encounter as long as the police do not convey a message that compliance with their
request is required.
Id. (internal quotation marks omitted); see also Reasor v. State, 12 S.W.3d 813, 818 (Tex. Crim.
App. 2000) (noting factors that the Supreme Court has taken into consideration in determining
whether consent is voluntary).
 Meekins Page 11

voluntariness must be accepted on appeal unless it is clearly erroneous.27 Likewise, a finding

of involuntariness is afforded the same great deference, because, as we have stated, “the

party that prevailed in the trial court is afforded the strongest legitimate view of the evidence

and all reasonable inferences that may be drawn from that evidence.” 28 When there are no

written findings explaining the factual basis for the trial judge’s decision, we imply findings

of fact that support his ruling so long as the evidence supports those implied findings.29

III.

In this case, the State argues that the court of appeals departed from a totality-of-the-

circumstances review and failed to grant any deference to the trial judge’s ruling.

Specifically, the State complains that the court of appeals relied exclusively on Officer

Williams’s final question of “Do you mind if I look?” and what it decided was appellant’s

response of “I guess”30 to hold that there was no consent, rather than giving deference to

implied findings that support the trial judge’s ruling. It is the State’s position that the

imprecise nature of communication is such that an analysis of isolated words alone does not

27
See Juarez v. State, 758 S.W.2d 772, 781 (Tex. Crim. App. 1988) (“Voluntariness is a
question of fact to be determined from the totality of the circumstances, and we accept the trial
court’s finding unless it is clearly erroneous”) (internal citation omitted), overruled on other
grounds by Boyle v. State, 820 S.W.2d 122 (Tex. Crim. App.1989).
28
State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008).
29
Gutierrez, 221 S.W.3d at 687.
30
Because the court of appeals refused to allow supplementation of the record with the
trial judge’s written findings of fact, we do not know whether the trial judge believed Officer
Williams’s testimony that he thought appellant said “Yes,” or the court reporter’s transcription of
the DVD in which she wrote appellant’s response as “I guess.”
 Meekins Page 12

necessarily fully reveal the message being conveyed.31 It is only by examining the context

of a communication that one can fairly deduce the intended meaning of words because the

same words may convey radically different meanings depending on context, the speaker, and

the listener. In part, that is why reviewing courts defer to trial courts when assessing factual

findings.32

In this case, Officer Williams asked appellant six times whether he would consent to

a search of his car. Appellant repeatedly stalled and evaded the question. Finally, in

response to Officer Williams’s specific question, “Do you mind if I look,” appellant said,

“Yes” or “I guess.” What did he mean? Appellant could be responding, “Yes, I do mind.

I do not want you to search my car.” On the other hand, given the numerous prior questions,

(including Officer Williams’s previous straightforward inquiry, “I’m asking if I can look in

your vehicle. It’s yes or no.”), it could mean “Yes, you can search my car.” Officer

Williams’s question is hardly a model of clarity, and appellant’s answer is fraught with

ambiguity.

31
State’s Brief at 11.
32
Determinations of witness credibility are left entirely to the fact finder, who is in the
unique position to observe the witness’ body language, demeanor, tone of voice, and other
indicia of credibility. See, e.g., Cain v. State, 958 S.W.2d 404, 408 (Tex. Crim. App. 1997)
(weight to be given testimonial evidence left to jury who can evaluate a witness’s demeanor);
Williams v. State, 692 S.W.2d 671, 676 (Tex. Crim. App. 1984) (“The trier of fact is the sole
judge of the weight and credibility of the witnesses and may believe or disbelieve all or any part
of any witness’ testimony.”).
 Meekins Page 13

The court of appeals aptly noted this problem.33 But it declined to view the evidence

in the light most favorable to the trial judge’s ruling because it concluded that “the situation

before us is not one in which the historical facts are in dispute.”34 But they are very much

in dispute. Everything hinges on the meaning of appellant’s response and what a reasonable

person standing in Officer Williams’s shoes would conclude that he meant. The court of

appeals erred both in asserting that the facts were undisputed and in applying a de novo

standard of review to the disputed facts.35

The court of appeals pointed to the audio-video recording and asserted, “What was

33
Meekins, 303 S.W.3d at 28. The court stated,
The officer had not asked “may I search” but rather “would you mind if I look?”
Answering “yes” to the latter meant that appellant did mind. Answering “I guess”
also had and has like connotation; that is, saying “I guess” in response to being asked
if one minds whether something happens can well indicate that he does. To this we
add appellant's prior evasiveness in response to the officer's persistence in asking for
consent. When combined, the circumstances paint not a picture of clarity or
unequivocation but rather one of vacillation and hesitance. More importantly, to
somehow conclude from the entirety of the scenario that saying “yes” or “I guess”
meant that appellant finally acquiesced to the search invites speculation into various
matters. Those matters consist of whether appellant failed to listen to the specific
question asked by Williams, whether he ignored the last question and opted to answer
those previously propounded, or whether he reinterpreted the question from one
asking “would you mind” to one asking “may I search.” Yet, authority denies both
this court and the initial factfinder from engaging in speculation given the absence
of supporting evidence.
34
Id.
35
See id. (“Simply put, the situation before us is not one in which the historical facts are
in dispute, for they are not. . . . Thus, we are merely left with applying the undisputed facts to the
law regarding consent, and that is a task undertaken de novo.”).
 Meekins Page 14

said and done was said and done, neither can be questioned nor changed.”36 True enough,

but the trial judge’s task is to determine precisely what was said and then what was conveyed

by the totality of the circumstances.

Admittedly, the audio recording is not of the highest quality, but careful listening

would support an implied finding that appellant replied with a “Yes” to Officer Williams’s

final question. At a minimum, the recording fails to clearly rebut Officer Williams’s

testimony that appellant said “Yes.”37 But even if the trial judge concluded that appellant

said, “I guess,” that phrase could reasonably be interpreted as a positive response, a

colloquial equivalent of “Yes.”38 Indeed, the Texas Supreme Court has held that a person’s

36
Id.
37
Appellant relies upon our decision in Carmouche v. State, 10 S.W.3d 323 (Tex. Crim.
App. 2000), for the proposition that because Officer Williams’s testimony did not precisely
coincide with the court reporter’s transcript of the audio recording, this Court should decline to
give deference to the trial court’s implied findings. But in Carmouche, the video and audio tape
directly contradicted the officer’s testimony that the defendant consented to his request to
perform a second pat-down by throwing his arms up in implicit consent. The recording clearly
showed that the officer told the defendant to put his arms up in the air and only then was he
asked to consent to be searched, and, when the defendant gave no response, the officers began to
pat him down. Id. at 332 (“The tape does not support a conclusion that appellant made these
gestures as an indication of consent. Indeed, appellant turned around and assumed a position to
facilitate the search after he was ordered to do so by one of the officers.”). The issue in this case
is a simple ambiguity as to whether appellant responded “Yes,” or “I guess” to Officer
Williams’s request. But that ambiguity does not make a dispositive difference in any event.
38
Oxford English Dictionary, p. 1223 “6. Sometimes used, with playful moderation of
statement, in reference to what the speaker regards as a fact or a secure inference. Hence
[colloquialism] in the northern U.S. (sometimes with omission of the pronoun) = ‘I am pretty
sure.’” In several cases, the phrase “I guess,” taken in combination with other circumstances, has
been held to communicate consent. See, e.g., Davis v. State, 694 S.E.2d 696, 697-98 (Ga. Ct.
App. 2010) (deferring to finding of trial court that “I guess” constituted valid consent and
defendant’s detention was not unreasonably delayed by the request to search); State v. Hiner, 246
P.3d 35, 38-39 (Or. Ct. App. 2010) (defendant’s response of “Well, I guess I have to” when
 Meekins Page 15

response of “I guess so,” to an officer’s request to search, combined with other

circumstances, supported the trial judge’s finding that the person had voluntarily consented

to the search.39

But regardless of whether appellant said “Yes,” or “I guess,” the trial judge was also

required to decide what an objectively reasonable person standing in Officer Williams’s

shoes would conclude that response meant.40 Both Officer Williams’s conduct and that of

appellant immediately after the response would support the trial judge’s implicit finding that

appellant intended to consent. While appellant’s response of “Yes” or “I guess” may be open

to interpretation, there can be little doubt that Officer Williams believed that appellant

consented because he immediately asked appellant to step out of the car so that the officer

could search it without difficulty.41 And appellant did so.42 If appellant had intended to

asked for permission to search his person constituted valid consent); but see United States v.
Worley, 193 F.3d 380, 387 (6th Cir. 1999) (“You’ve got the badge, I guess you can” was not
valid consent to a search of defendant’s bag in an airport).
39
State v. $217,590.00 in U.S. Currency, 18 S.W.3d 631, 633, 635 (Tex. 2000) (agreeing
with trial judge that truck driver voluntarily consented to search of his truck by replying “I guess
so,” when asked for permission, and officer did not threaten driver or display a weapon as the
two stood by the highway).
40
See United States v. $117,920.00 in U.S. Currency, 413 F.3d 826, 828 (8th Cir. 2005)
(concluding that trial judge could find that suspect, who responded “I guess if you want to” to
trooper’s request to search his car, voluntarily consented; “reply to the trooper was sufficient to
cause a reasonable person to believe he had consented and was therefore not impermissibly
equivocal or unspecific.”).
41
The court of appeals agreed that Officer Williams believed that appellant had consented
when he asked appellant to step out of the car. Meekins, 303 S.W.3d at 27 (“Nor does anyone
dispute that the officer’s directive to exit arose from what he believed to be appellant’s consent to
search.”). Officer Williams’s subjective belief is not determinative and is relevant only to the
 Meekins Page 16

refuse consent, it seems reasonable that he would have objected, complained, or refused to

get out of his car. Instead, he readily complied.

Appellant argues that, even if the court of appeals erred by using a de novo standard

of review, “the only reasonable conclusion to be made is that Appellant relented to Officer

Williams’s repeated requests to search his car as opposed to consented.” 43 Not all

compliance is mere acquiescence to official authority, however.44 “Mere acquiescence” may

extent that appellant’s words and actions would have communicated his consent to the
reasonable person in Officer Williams’s shoes.
42
As an example of a situation in which the defendant’s ambiguous response to a request
to search, coupled with his actions immediately after that, supported the trial judge’s ruling that
the defendant consented to the search of his suitcase, see United States v. Harfst, 81 F.3d 173,
1996 U.S. App. LEXIS 5298 (10th Cir. 1996) (not designated for publication) (reviewing audio
tape of interaction and noting that, “Although defendant responded, ‘I guess I don’t,’ the second
time Agent Small requested consent to search the suitcase, we agree with the district court that
the inflection of defendant’s voice indicates an affirmative response. Following that response,
defendant opened his suitcase, tilted it towards Agent Small and moved things around.”).
Although we do not rely upon this unpublished decision, it shows the deference that is due the
trial judge’s determination when a person’s oral response to a request to search is ambiguous.
43
Appellant’s Brief at 6.
44
In deciding whether a consent to search was voluntarily given, we follow the Supreme
Court’s discussion in Schneckloth. In Reasor v. State, 12 S.W.3d 813 (Tex. Crim. App. 2000),
we stated,
By looking at the circumstances leading up to the search, the reaction of the
accused to pressure, and any other factor deemed relevant, a trial court can
determine whether the statement of consent was given voluntarily. Some relevant
factors the Supreme Court has taken into consideration in past cases are: the youth
of the accused, the education of the accused, the intelligence of the accused, the
constitutional advice given to the accused, the length of the detention, the
repetitiveness of the questioning, and the use of physical punishment.
Id. at 818 (citing Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973)). We specifically stated
that “a trial court” can determine voluntariness based on these relevant factors.
Some Texas courts of appeals have set out an even more elaborate list of possible factors
that trial judges may consider.
 Meekins Page 17

constitute a finding of consent.45 Furthermore, repeatedly asking for consent does not result

in coercion, particularly when the person refuses to answer or is otherwise evasive in his

response.46 Appellant has presented no evidence of factors that would tend to show coercion,

Several factors are to be examined in order to determine whether an appellant
freely and voluntarily consented: (1) whether, and to what extent, officers
exhibited a show of force, including a display of weapons; (2) whether the actions
of the arresting officers can be classified as flagrant misconduct; (3) whether the
police threatened to obtain a search warrant if the detainee did not acquiesce, or
whether the police claimed a right to search; (4) whether police first gave
appellant his Miranda warnings; (5) whether the arrest was made in order to
obtain consent; (6) whether appellant knew that he could refuse to allow a search;
(7) whether consent was first offered by appellant or was in response to police
request; (8) appellant's education, intelligence, and physical condition; and (9) the
proximity of the consent to the arrest, since an intervening time period can
provide a degree of attenuation of the taint.
Frierson v. State, 839 S.W.2d 841, 851 (Tex. App.–Dallas 1992, pet. ref’d); see also State v.
Williams, 312 S.W.3d 276, 284 (Tex. App.–Houston [14th Dist.] 2010, no pet. h.) (factors that
courts may use to determine the voluntariness of consent include: “(1) whether the consenting
person was in custody; (2) whether the suspect was arrested at gunpoint; (3) whether the suspect
had the option of refusing consent; (4) the constitutional advice given to the suspect; (5) the
length of detention; (6) the repetitiveness of the questioning; and (7) the use of physical
punishment” as well as the suspect’s age, intelligence, and education).
45
State v. Kelly, 204 S.W.3d 808, 820-21 (Tex. Crim. App. 2006). In Kelly, the
defendant argued that she “merely acquiesced” to the request for a blood sample, thus, she did
not affirmatively consent. We stated that,
[A]n express or implied finding of “mere acquiescence” to Gosson’s blood draw
also constitutes a finding of consent to the blood draw. Webster's II New
Collegiate Dictionary defines “consent” as, among other things, “[v]oluntary
allowance of what is planned or done by another.” Webster's II New Collegiate
Dictionary 240 (1999). We further note that this same dictionary defines
“acquiesce” as, among other things, “[t]o consent or comply without protest.”
Webster's II New Collegiate Dictionary 10 (1999). Also, according to the Roget's
Desk Thesaurus, “consent” and “acquiesce” are synonymous terms. Roget's Desk
Thesaurus 9, 111 (2001).
46
See United States v. Pulvano, 629 F.2d 1151, 1157 (5th Cir. 1980) (appellant’s eventual
consent to search was not coerced despite repeated requests for consent prior to and following his
arrest; “One who refuses to cooperate with the police on the grounds that he is constitutionally
permitted to do so, may change his mind at some later time and decide to voluntarily
 Meekins Page 18

such as an officer’s display of a weapon, threats, promises, deception, physical touching, or

a demanding tone of voice or language.47 Officer Williams’s action of merely repeating his

question several times and asking for a specific “yes or no” response in the face of

appellant’s evident evasiveness does not rise to the level of official coercion. Indeed, there

is indication from the Supreme Court that asking repeated questions or talking at a non-

responsive, uncooperative suspect is not a coercive technique.48

From the arguments and evidence presented at the suppression hearing, the trial judge

made a reasonable ruling based upon the totality of the circumstances. As stated by the

dissent in the lower court, “Accepting the [majority’s] conclusion as correct, surely the same

evidence permitted the trial court to conclude appellant did not refuse the officer consent to

search his car.”49 Put simply, there is more than one permissible view of the totality of the

evidence. This case is an excellent example of why appellate courts should have the trial

judge’s findings of fact before disagreeing with that judge’s ruling on a motion to suppress.

The court of appeals would have been well served to allow supplementation of the record

cooperate.”).
47
United States v. Mendenhall, 446 U.S. 544, 554 (1980); United States v. West, 219 F.3d
1171, 1177 (10th Cir. 2000) (although defendant initially hesitated when asked for consent to
search his car, “there were no threats made, no cajoling, or demand of defendant to obtain
consent. No pressure was applied by Deputy Barney against the defendant.”)
48
Berghuis v. Thompkins, 130 S.Ct. 2250, 2263 (2010) (murder suspect, who remained
largely silent in the face of police questioning for three hours was not coerced into answering and
his few one-word responses were admissible).
49
Meekins, 303 S.W.3d at 31 (Campbell, J., dissenting).
 Meekins Page 19

with the findings of fact that appellant had requested.50

Viewing the totality of the circumstances in the light most favorable to the trial

judge’s ruling, we conclude that he did not abuse his discretion in finding that appellant

voluntarily consented to a search of his car. Of course, had the trial judge found that

appellant did not, in fact, voluntarily consent, we would uphold that factual finding as well,

given the totality of the circumstances in this case.51

We therefore reverse the court of appeals and affirm the judgment of the trial court.

Delivered: May 4, 2011
Publish

50
See note 7 supra.
51
See, e.g., United States v. Randall, 211 F. Supp. 2d 1127, 1135-36 (D. Neb. 2001) (trial
judge found that defendant’s apparently puzzled response of “I guess. I mean I guess” to
officer’s request to search her car after he had completed traffic stop but commenced asking her
questions did not demonstrate voluntary consent; “Her significant hesitation and implicit
objection to further contact with the officer were evident in the videotape and her statement,
‘What choice do I have?’ Rather than advising the defendant that she could choose not to answer
any questions and remained ‘free to go,’ the questioning by Trooper Pelster began. . . . Having
observed Ms. Randall’s testimony and appearance as a witness, as well as the videotape of this
traffic stop, I find that Ms. Randall was acceding to the authority of Trooper Pelster rather than
voluntarily consenting to the search.”).