dissenting.
I respectfully dissent, but I understand the majority’s reluctance to reverse in view of the language expressed in Holladay that by merely asking for consent to search, a police officer has effected a seizure or detention under the Fourth Amendment or the Texas Constitution.
Rather, I would review the conduct of the officer and the defendant in the context of the specific facts of each case to determine if the consent to search was voluntary or coerced in some fashion. By applying this standard, I disagree with my brethren’s implication that taking all the circumstances into account the officer’s conduct here communicated to this reasonable person that he was not at liberty to ignore the officer and go about his business. Citing to Mitchell v. State, 831 S.W.2d 829, 832 (Tex.App. — Houston [1st Dist.] 1992, pet. ref'd).
Here, appellee apparently had no fear or reservation about refusing the officer’s request to search his bag. He simply told her no. No search resulted. In view of this, he certainly must have realized that he could have just as well told her no with regard to the requested canine sniff-test. She made no threat, no show of force, and unlike the officer in Holladay, she did not state or suggest that she had legal authority to detain him for a dog-sniff test without his consent. The fact that she asked for his permission coupled with his prior unqualified refusal, militates against the trial court, or us on appeal, engaging in a form of retroactive mind-reading, so as to infer that appellee was somehow psychologically forced to consent to the dog-sniff test. The actual circumstances just do not support such an inference.
Any innocent, or even another drug-carrying passenger, proceeding through this train station on this day could have refused to consent to a search just as appellee did. And assuming, as we must, absent any contrary indicia, that the passenger was a reasonable person, and having refused a request to search his bags, the passenger would also have realized, (unless he were misled in some manner), that he could have refused a dog-sniff request. A request by its nature implicates the right to refuse. Simply stated, the appellee voluntarily gambled that the dog would not be able to detect the bundles of marihuana in his bag, and lost. Instead of refusing the request for a dog-sniff test as he had the prior search request and proceeding on his way, he voluntarily consented, and he should be called to account for his possession of illegal drugs.
In sum, I would hope that the Court of Criminal Appeals would re-visit Holladay and conclude that the mere requesting of permission to search without more does not automatically constitute either a seizure or an investigative detention of the person, to whom the request is directed. I agree with the majority that the few seconds it takes for a member of the travelling public to say no, (or yes, if he or she so chooses), to an officer’s request for permission to search is a small price to pay to help stem the tide of illegal drugs. In my opinion, the trial judge should examine the facts of each case to determine if there is specific indicia that the officer used actual or implied force, threat or trickery which might have coerced the indi*795vidual into consenting to a search. If there is such indicia, the consent is tainted and the evidence should be suppressed. But in my opinion the mere fact that an officer properly identifies himself and his purpose and requests permission to search without anything else is not per se coercive and does not, standing alone, result in such a serious investigative detention as to trigger grave constitutional issues of search and seizure.
The trial court in such cases should also examine the conduct of the individual to determine if his conduct indicates that he understood that he had the right to refuse the officer’s requests. If his conduct reflects such understanding, then his consent is voluntary and the evidence found should be admitted. Here, the defendant by refusing the request for a search of his bag indicated he understood his right to refuse, and did. Thus, his subsequent consent to the dog-sniff test was voluntai’ily made.
Based on the facts of this case, I would reverse the trial court’s decision to suppress the evidence of illegal drugs found in appel-lee’s possession.