                                  NO. 07-09-0144-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL B

                               DECEMBER 17, 2009
                         ______________________________

                           DAVID O. MEEKINS, APPELLANT

                                           V.

                         THE STATE OF TEXAS, APPELLEE
                       _________________________________

        FROM THE COUNTY COURT AT LAW NO. 2 OF LUBBOCK COUNTY;

              NO. 2007-443160; HONORABLE DRUE FARMER, JUDGE
                       _______________________________


Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


                                DISSENTING OPINION


      As I understand the Court’s reasoning, it finds the consensual search of appellant’s

pocket followed the officer’s unreasonably prolonged detention of appellant, and marijuana

found in the pocket was thus fruit of the poisonous tree. I agree with the Court that an

officer’s request for consent to search a vehicle involved in a traffic stop, although

otherwise permissible, may nonetheless prolong a detention to an unreasonable degree.

See Kothe v. State, 152 S.W.3d 54, 65 (Tex.Crim.App. 2004) (noting that a routine check

of a driver’s license and car registration may unduly prolong a detention, making the
officer’s action unreasonable under the circumstances). But the trial court reasonably could

have concluded that did not occur here.


       As the Court notes, the exchange between appellant and the officer concerning

consent to search the vehicle took about a minute. From its inception to appellant’s arrest,

the detention took something over six minutes. The Court accurately characterizes as

“evasive” appellant’s responses to the officer’s first several questions regarding consent.

Appellant and the State disagree over the effect of appellant’s “yes” or “I guess” response

to the officer’s last question, and the Court finds it insufficient to demonstrate appellant’s

unequivocal and voluntary consent to search of the car. Accepting the Court’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.1 See Olguin v. State, No. 08-02-0241-CR, 2003

WL 22159048 (Tex.App.–El Paso, September 18, 2003 pet. ref’d) (mem. op., not

designated for publication) (disagreeing with contention defendant’s failures to respond to

officer’s requests for consent constituted refusals); cf. Davis v. State, 947 S.W.2d 240, 241

(Tex.Crim.App. 1997); McQuarters v. State, 58 S.W.3d 250, 254 (Tex.App.–Fort Worth

2001, pet. ref’d) (both finding detentions improperly prolonged after stopped suspects

refused consent to search vehicles).




   1
     In the absence of findings of fact, we view the evidence in the light most favorable to
the trial court’s ruling. Carmouche v. State, 10 S.W.3d 323, 327-28 (Tex.Crim.App. 2000).

                                              2
       The video recording shows the officer told appellant to step out of the car

immediately after appellant’s response to the officer’s last request for consent. The officer

testified, and appellant does not disagree, that appellant reached toward one of his pockets

as he stepped out of the vehicle, leading the officer to grab appellant’s arm then seek his

consent to search the pocket. Appellant consented to the search of the pocket and the

marijuana was found. Case law provides an officer may as a matter of routine ask an

occupant to step out of a vehicle after a traffic stop. Pennsylvania v. Mimms, 434 U.S. 106,

109-11, 98 S.Ct. 330, 332-33, 54 L.Ed.2d 331 (1977) (per curiam); Rhodes v. State, 945

S.W.2d 115, 117-19 (Tex.Crim.App.1997). Under the circumstances presented here, I see

nothing constitutionally wrong with the officer’s instruction of appellant to step out of the

car. I would find the actions that lead to discovery of the marijuana in appellant’s pocket

were not unreasonable, and would affirm the trial court’s denial of the motion to suppress.

Because the Court does not, I respectfully dissent.




                                                  James T. Campbell
                                                      Justice


Publish.




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