dissenting.
Because I believe that, under the totality of the circumstances test,1 Olvera’s consent to search was positive and unequivocal, I dissent from thé majority’s disposition of points of error five and eight.
Here, the circumstances were such that Olvera’s vehicle had already been inspected without objection from Olvera, and some traffic violations found before Moore asked Olvera whether he was carrying drugs or contraband. After Olvera denied having *669drugs or illegal contraband, Moore asked if he could search the entire vehicle. Olvera replied, “I guess so.” Olvera conceded he consented to the search, but maintained he did not think he had a choice.
The United States Supreme Court specifically held in Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), that knowledge of the right to refuse to consent to a search is not dispositive in determining voluntariness: “While knowledge of the right to refuse consent is one factor to be taken into account, the government need not establish such knowledge as the sine qua non of an effective consent.”
Relying on Schneckloth, the Third Circuit Court of Appeals affirmed the trial court’s denial of a motion to suppress in United States v. Kim, 27 F.3d 947 (3rd Cir.1994). There, the defendant was observed on board an east-bound train from Los Angeles, a route frequently used by drug carriers. The detaining officer asked Kim a few questions and then requested consent to search his luggage. Kim agreed and drugs were discovered. At his criminal trial, Kim moved to suppress the evidence on the grounds that consent was not voluntarily given. Id. at 949-50. In affirming the denial, the court emphasized that a defendant’s knowledge of the right to refuse is not a talisman for consensual searches, and further noted that the government is not required to advise a defendant of his right to refuse consent before eliciting his consent. Id. at 955.
While the majority correctly recognizes Olvera’s “I guess so” response is equivocal “if at all, only with respect to [his] consideration of the wisdom of his answer,” (Op. at 666) and acknowledges in a footnote that “there is no requirement that a person be informed of his right to refuse to consent before his consent can be held to be effective,” (Op. at 667) it is clear to me that in sustaining point of error five, the majority did impose such a requirement. This is evidenced by the majority’s extended discussion regarding Olv-era’s lack of awareness that he could decline the search and Moore’s failure to explain to Olvera that he could decline the search.
The majority attempts to bolster the decision to sustain point of error five by reference to Moore’s statement to the dog handler that “[T]his man (Olvera) does not want his vehicle searched.” I believe the majority has improperly attributed an inflection on this statement that cannot be ascertained from a bare transcription of the words. Moore’s statement could have meant Olvera revoked his consent, or that Moore did not perceive Olvera’s consent to have been given willingly. However, an equally likely interpretation of the statement is that Moore perceived Olvera knew the vehicle contained contraband and feared he was going to be arrested. Thus, it was improper for the majority to give any weight to Moore’s statement. See generally, Continental Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex.1996) (when circumstantial evidence is relied upon, and the circumstances are equally consistent with either of two facts, no more than a scintilla of evidence exists). Thus, the only real reason for sustaining point of error five is Olvera’s asserted lack of knowledge concerning his right to decline the search. From this erroneous conclusion, I must respectfully dissent.
By his eighth point of error, Olvera challenges the legal and factual sufficiency of the trial court’s finding that his statements 2 to Sgt. O’Burke were made voluntarily. As in point of error five, Olvera hinges his complaint on the allegation that he was subjected to an illegal search. Olvera contends that at the time he made his statements to Sgt. Burke, he was still being subjected to police misconduct “which permeated and tainted this entire police-citizen encounter at the time the alleged statements were elicited from him.”
Because Olvera consented to the search of the vehicle, I would also overrule point of error number eight.
SEERDEN, C.J., joins in the dissent.
. Voluntariness of a consent is a question of fact to be determined from the totality of all the circumstances, Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973).
. Generally, that the currency was drug money which he was instructed to leave in the vehicle at a certain location in Brownsville. Another individual would then drive the vehicle across the border into Mexico.