dissenting.
I respectfully dissent.
When a motion to suppress is heard by a trial judge, the judge sits as the trier of facts and his findings will not be disturbed if there *186is any evidence to support them.8 This Court must construe the evidence most favorably to uphold the trial court’s findings and judgment.9
In this case, there is no question that the stop of appellant Montero was valid. There is no question that Montero validly consented to the search of his car. There is no question that Montero did not consent to a search of the box in the trunk of his car. The only question is whether at the time Montero refused to let the State Trooper search the box, he also withdrew his consent to search the car.
The law regarding the withdrawal of consent in warrantless searches has developed in a piecemeal fashion. Though certain general principles are established, some gaps remain in our interpretation of the Fourth Amendment guarantees in this context. It is fundamental, however, that “[c]onsent may be as limited as the consenter wishes, and the search may not exceed the reasonably understood parameters.”10 While the validity of the consent obtained by Montero has not been questioned here, it is also a fundamental precept that “[w]hen consent to search is in issue, the State has the burden of proving the consent was freely and voluntarily given.”11
While recognizing these important legal principles, the broad language of these cases did not intend the results which the majority reaches here; they arose out of different fact situations and applied to those specific contexts.12 This case, also, is fact specific, and a different legal principle controls. Here, the facts are controlled by the longstanding principle that “[o]nce a voluntary consent is legally obtained, it continues until it either is revoked or withdrawn.”13 And whether Montero withdrew his consent to search the car when he refused to allow the trooper to search the box is a factual determination for the trial court, based on the totality of the circumstances.14
The trial court found that Montero did not withdraw his consent to search the entire car; he only denied access to the box. The court *187found that the drug dog was summoned within 15 minutes to accomplish an intensified search of the car; the fact that the dog then alerted on the box during the consensual search of the car provided the probable cause to search the box, regardless of Montero’s expressed desire that the box not be searched:
[Court:] When the dog alerted for drugs, that factor combined with the factors prompting the use of the drug dog in the first instance, which was consent to search, established probable cause to believe he was in possession of illegal drugs within his vehicle authorized the subsequent search of the interior. . . .
[Defense:] To a point, but then he says, No, the search is over. He can —
[Court:] I thought he said, No, you couldn’t search that box. . . .
[Defense:] So, I’m saying that’s correct.
[Court:] Okay.
[Defense:] So the search is over at that time.
[Court:] No, you just can’t search the box.
[Defense:] Okay.
[Court:] But you’ve still got a right to search around the car. . . . And it [Johnson v. State]15 says when the dog alerts that there’s drugs inside the car, or in some place that he’s refusing to allow them to search, that’s probable cause to search it. ... I think the issue is once you’ve given the right to search, I don’t disagree that he can then limit his search or he can totally stop the search. My information, or the evidence I got, is that he told them that they couldn’t search that box which was in the interior of the trunk. . . . Then the dog came in there and from the outside of the car the dog indicated the presence of drugs. And the fact that you’ve got the dog indicating the presence of drugs and a search which was legal because he consented to it allows you to go further and search the box.16
There was evidence to support the trial court’s findings of fact and law. The State Trooper testified that Montero gave him consent to search the “vehicle and its contents” and that when he opened the trunk,
[Trooper:] We came up on an object that was — that he *188would not allow us to search, and I wanted to go further with the K-9.
[Defense:] If a person gives you permission to search their vehicle, can they rescind that search at any time?
[Trooper:] Yes, sir.
[Defense:] And he did rescind it, didn’t he?
[Trooper:] Yes, sir, on that one item. . . .
[Defense:] But he withdrew the consent, didn’t he?
[Trooper:] He just said he didn’t want us to search that box.
Montero did not testify at the motion hearing. There was no evidence that Montero ever withdrew his consent to search the car. Nor was there evidence that, when Montero told the State Trooper not to search the box, he was withdrawing his consent to search the entire car. Further, the K-9 handler testified that Montero was present when the K-9 began to work the outside of the car, and Montero did not say anything. The K-9 effected an open air search around the entire vehicle. The dog subsequently alerted on the trunk and then on the box in the trunk. The box was then searched, and 21 pounds of marijuana were seized from therein.
The officer had no probable cause to believe that appellant’s vehicle contained contraband before the drug dog alerted. However, the officer’s actions prior to that time were undertaken only with appellant’s consent. Once a voluntary consent is legally obtained, it continues until it either is revoked or withdrawn. A valid consent eliminates the need for either probable cause or a search warrant. When the drug dog did alert to the presence of contraband in the vehicle, the officer then had probable cause to believe that contraband was contained somewhere therein. A sniffing dog may provide probable cause for the issuance of a search warrant, or when exigent circumstances are present, justify a search without a warrant. Once the officer had probable cause to believe that contraband was contained somewhere in appellant’s automobile, he was authorized to conduct a search of its contents, including the . . . box.17
The majority reverses based on DiSanti v. State,18 finding that Montero was illegally detained since “[the trooper] would not let Montero leave because he wanted to search the taped box as well.” The problem with the majority’s position is that, unlike in DiSanti, *189there is absolutely no evidence in the record that the trooper “would not let Montero leave.” In DiSanti, the officer believed that “appellant had revoked his consent to search, and from that moment on, he considered that appellant was no longer free to go.”19 DiSanti involved a “renewed detention, unrelated to either the speeding offense investigation or his consent to search.”20 No such factual circumstances are presented here. In this case, the trooper testified that Montero, himself, was free to leave but the car would be detained as long as the trooper had a valid consent to search it:
[Defense:] If he had decided to leave at that time, would you have arrested him or held him?
[Trooper:] I’d of let him go. The vehicle couldn’t have left.
[Defense:] Okay. Why is that?
[Trooper:] Because we had got permission to search the vehicle. We came upon on an object that was — that he would not allow us to search, and I wanted to go further with the K-9. . . .
[Defense:] But he withdrew consent, didn’t he?
[Trooper:] He just said he didn’t want us to search the box.
The trooper’s motivation for bringing in the drug dog is irrelevant, as long as Montero did not withdraw consent to search the car.21 Montero never withdrew consent to search the car. The dog was brought in to search the car. And, Montero never indicated that he wanted to leave — so defense counsel’s question regarding “if he had decided to leave” was hypothetical only. Thus, Montero was not detained outside the scope of his consent to search the car, since Montero’s consent to search his car “continued until withdrawn or revoked.”22
In this fact-specific case, the trial court found that Montero’s consent to search the car was not revoked or withdrawn at the time he refused to permit a search of the box. The drug dog was called in pursuant to Montero’s continuing consent to search the car. Such findings are supported by the evidence, and in fact, there is no evidence in contradiction. Construing the evidence to support the trial court’s findings and judgment, as we must,23 the trial court properly denied Montero’s motion to suppress, and the judgment of the court below should be affirmed.
*190Decided July 14, 2000. Fleming, Blanchard, Jackson & Durham, James G. Blanchard, Jr., Paul W. David, for appellant. Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.I am authorized to state that Chief Judge Johnson and Presiding Judge Pope join in this dissent.
Gordon v. State, 242 Ga. App. 50, 51 (528 SE2d 838) (2000); State v. Swift, 232 Ga. 535, 536 (1) (207 SE2d 459) (1974).
Dawson v. State, 238 Ga. App. 263 (518 SE2d 477) (1999).
Springsteen v. State, 206 Ga. App. 150, 152 (424 SE2d 832) (1992).
State v. Long, 232 Ga. App. 445-446 (502 SE2d 298) (1998).
While not decided here, it appears that law enforcement officers would be unduly burdened if a defendant had the unfettered right to withdraw consent when an officer approaches an illegal substance; withdrawal of consent under such circumstances may raise issues regarding reasonable articulable suspicion to detain for further investigation without consent. Terry v. Ohio, supra.
Morris v. State, 239 Ga. App. 100, 101 (1) (a) (520 SE2d 485) (1999); Mallarino v. State, 190 Ga. App. 398, 403 (379 SE2d 210) (1989); Bell v. State, 162 Ga. App. 79, 81 (290 SE2d 187) (1982); Ferguson v. Caldwell, 233 Ga. 887, 892 (213 SE2d 855) (1975).
See, e.g., Schneckloth v. Bustamonte, 412 U. S. 218, 227 (93 SC 2041, 36 LE2d 854) (1973) (“the question whether a consent to a search was in fact ‘voluntary’. . . is a question of fact to be determined from the totality of all the circumstances.”).
230 Ga. App. 535, 538 (496 SE2d 785) (1998).
(Emphasis supplied.)
(Citations and punctuation omitted.) Boggs v. State, supra at 264-265.
Supra.
Id. at 333.
Id. at 334.
Ohio v. Robinette, 519 U. S. 33, 38 (117 SC 417, 136 LE2d 347) (1996) (“the fact that an officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer’s action does not invalidate the action. [Cit.]”).
Boggs v. State, supra at 264-265.
Gordon v. State, supra at 51.