              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

                 K ELLER, P.J., filed a concurring opinion.



        The issue addressed by the court of appeals was “whether appellant consented to the search,”1

not whether any consent he might have given was voluntary. Whether or not someone’s words

actually constitute “consent” is not an issue that fits neatly into the categories of cases that have been

addressed by the Supreme Court. The Supreme Court’s caselaw appears to address three types of




        1
            Meekins v. State, 303 S.W.3d 25, 27 (Tex. App.–Amarillo 2009).
                                                               MEEKINS CONCURRENCE — 2

consent issues: (1) voluntariness of consent,2 (2) scope of consent,3 and (3) authority (actual or

apparent) to consent.4 Illinois v. Rodriguez, the case that addresses apparent authority to consent,

seems to have the most bearing on the issue before us.

       In Rodriguez, the Supreme Court held that a search pursuant to consent was valid if the

officers had a reasonable belief that the person who consented had authority to do so, even if that

belief turned out to be wrong.5 In arriving at this holding, the Supreme Court explained at length that

reasonableness, not correctness, was the general standard under the Fourth Amendment by which

to judge the factual determinations made by government agents.6 The Court found “no reason to

depart from this general rule with respect to facts bearing upon the authority to consent to search.”7

Indeed, the opinion at one point refers to the apparent authority to consent as simply “apparent

consent”8 and calls searches conducted pursuant to consent given by someone with apparent




       2
           See Schneckloth v. Bustamonte, 412 U.S. 218 (1972).
       3
           See Florida v. Jimeno, 500 U.S. 248 (1991).
       4
           See Georgia v. Randolph, 547 U.S. 103 (2006); Illinois v. Rodriguez, 497 U.S. 177 (1990).
       5
           497 U.S. at 189.
       6
          Id. at 183-88; see id. at 184 (rejecting the contention that government officers’ “exercise
of judgment regarding the facts” must be “not only responsible but correct.”); id. at 185 (“It would
be superfluous to multiply these examples. It is apparent that in order to satisfy the ‘reasonableness’
requirement of the Fourth Amendment, what is generally demanded of the many factual
determinations that must regularly be made by agents of the government – whether the magistrate
issuing a warrant, the police officer executing a warrant, or the police officer conducting a search
or seizure under one of the exceptions to the warrant requirement – is not that they always be correct,
but that they always be reasonable.”).
       7
           Id. at 186.
       8
           Id. at 187.
                                                             MEEKINS CONCURRENCE — 3

authority as “seemingly consented searches.”9 Rodriguez’s rationale would appear to embrace not

only situations in which an officer reasonably but incorrectly believed that a person had authority

to consent, but also to a situation in which an officer reasonably but incorrectly believed that a

person had consented.

       The officer’s reasonable belief being the inquiry, the standard for resolving that inquiry is

“objective”: whether “the facts available to the officer at the moment” would “warrant a man of

reasonable caution in the belief” that the suspect had consented.10 The subjective intent of the

suspect would not be the issue; rather, the issue would be what a reasonable police officer would

have believed when confronted with the suspect’s responses.11

       In this case, the trial court could have believed, based on the demeanor and tone of voice of

appellant on the videotape and based on the demeanor and tone of voice of the officer on the witness

stand (which we cannot observe), that appellant’s response of “yes” or “I guess” would have been

taken by a reasonable officer to be consent.

       I join the Court’s opinion.


Filed: May 4, 2011
Publish




       9
            Id. at 186 n.*.
       10
            See id. at 188.
       11
         It may nevertheless be possible that a suspect’s actual intent to consent would defeat a
Fourth Amendment complaint even if it were determined that the officer did not act reasonably. This
might occur if a suspect were to later confess that his earlier ambiguous response was intended as
consent.
