IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. PD-1635-10

THE STATE OF TEXAS

v.

ROY ANDREW WEAVER, Appellee

ON STATE’S PETITION FOR DISCRETIONARY REVIEW

FROM THE NINTH COURT OF APPEALS

POLK COUNTY

COCHRAN, J., delivered the opinion of the Court in which MEYERS, PRICE,

WOMACK, JOHNSON and ALCALA, JJ., joined. KELLER, P.J., filed a dissenting

opinion in which KEASLER and HERVEY, JJ., joined. KEASLER, J., filed a dissenting

opinion in which KELLER, P.J., and HERVEY, J., joined.

O P I N I O N

Four police officers came to Mr. Weaver’s welding shop looking for a person wanted

in another county. Mr. Weaver gave the officers consent to search for that person. The

officers, over Mr. Weaver’s objection, ended up searching a van on his property and finding

drugs in it. The trial judge granted Mr. Weaver’s motion to suppress because he found that

the search of the van exceeded the scope of Mr. Weaver’s consent. The court of appeals,
Weaver Page 2

over a dissent, affirmed. We granted review in light of the justices’ disagreement. Because

we agree that the resolution of this case turns on the scope of Mr. Weaver’s consent, we

affirm the judgment of the trial court and that of the court of appeals.

I.

Roy Andrew Weaver owned a welding shop in Polk County. There was a front office

1

and a workshop in the rear. At the back on one side of the workshop was an open bay door

with a van backed into it. Also parked in the back yard were several “broken down”

vehicles, a boat, and “some other items.” One day, while the shop was open, four Polk

County narcotics officers came looking for Jerry Barksdale (“Bear”), who worked or “hung

out” at the shop. Bear was wanted in another county for organized crime. When the officers

arrived, they saw Bear’s car parked out in front of the shop. The officers asked Mr. Weaver

if they “could look around for the guy,” and he gave them “consent to look for him.”

The officers looked around for about ten minutes, but Bear was not at the shop nor

inside the van that was backed up in the workshop bay door. Nonetheless, because the

narcotics officers had received information “that there was also methamphetamine being used

and distributed from the business,” they lingered in the shop.

Sergeant Smith “just began talking to Mr. Weaver. We were standing just inside the

shop. I asked him if he had any illegal guns, knives, narcotics, anything like that. He

advised no. He–well, he did tell me he had some guns inside the office.” Mr. Weaver

 The shop is located at 203 Gray Drive in Livingston. 1
Weaver Page 3

showed Sgt. Smith the licensed guns in his office. After they came out of the office, Sgt.

Smith then asked “who the van belonged to.” Mr. Weaver said that it was his dad’s van but

that he drove it. When Sgt. Smith asked if he could search the van, Mr. Weaver refused

consent.

As soon as Mr. Weaver refused consent, Sgt. Smith told Lieutenant Lowrie to retrieve

his drug-dog from the patrol car and run the dog around the van parked in the bay door of the

workshop. The dog showed “odor response” to the passenger door. The van was searched,

and a tin box that contained glass pipes and some methamphetamine was found on the

floorboard between the door and the passenger’s seat. Mr. Weaver was arrested and charged

with possession of methamphetamine. He filed a motion to suppress which the trial judge,

after hearing testimony from Sgt. Smith and Lt. Lowrie, granted. The judge entered findings

of fact, including the following:

3. The defendant gave the officers permission to search his shop for

Barksdale. . . .

4. A van was located beside the defendant’s shop on property owned by

the defendant. Officers looked through the van windows and did not

see Barksdale or any contraband.

. . .

6. The officers asked the defendant for permission to search the van. The

defendant refused permission and the officers used a drug canine to

walk outside of the van.

Based upon his factual findings, the trial judge concluded,

The officers exceeded the scope of their search after they did not find

Barksdale and they did not have enough cause to conduct the canine search on
Weaver Page 4

the van which they did not see being operated.

The State appealed, arguing that the officers and Mr. Weaver had a consensual

interaction that never became a detention until the canine alert provided probable cause to

arrest Mr. Weaver. Mr. Weaver responded that the consensual encounter became an

unlawful detention before the dog sniff. The court of appeals affirmed the trial court’s ruling

and held,

In this case, the evidence shows that when the officers’ search for “Bear”

ended, they had not observed anything suspicious. Because the trial judge

could have determined that Weaver’s consent to search for “Bear” had ended,

the trial court could reasonably find that the officers, without establishing

probable cause, were not entitled to search for other purposes unrelated to that

of their initial search. Under the facts of this case, we conclude the trial court

did not abuse its discretion in granting Weaver’s motion to suppress. The trial

court’s ruling is affirmed.

2

Justice Gaultney dissented. He framed the issue as “whether the canine sniff of the

exterior of the van while the officers were talking with Weaver was an impermissible

‘search’ for Fourth Amendment purposes.” He concluded, “In this case the officers were

3

on the business premises legally with the consent of the owner. They had not been asked to

leave. Although the owner refused consent to a search of the van, the canine sniff of the

exterior of the van, made while officers were questioning Weaver, was not a ‘search’ for

State v. Weaver, 2010 Tex. App. LEXIS 7425, *9 (Tex. App.—Beaumont Sept. 8, 2010) 2

(not designated for publication)

 Id. at *10-11 (Gaultney, J., dissenting).

3
Weaver Page 5

Fourth Amendment purposes.”

4

The State Prosecuting Attorney (SPA) filed a petition for discretionary review, asking:

“May police conduct a dog sniff of the exterior of an unoccupied vehicle in the parking lot

of a business without the permission of the owner of the business?” We granted review in

light of the justices’ disagreement on a material question of law.

5

II.

A. Standard of Review.

When reviewing the ruling on a suppression motion, the trial judge’s determination

of facts–if supported by the record–is afforded almost total deference. Regardless of

6

whether the judge granted or denied the motion, appellate courts view the evidence in the

light most favorable to the trial judge’s ruling. The prevailing party is afforded the strongest

7

legitimate view of the evidence and all reasonable inferences that may be drawn from that

evidence. We review a trial court’s application of the law of search and seizure to the facts

8

Id. at *11-12 (citing City of Indianapolis v. Edmond, 531 U.S. 32, 40 (2000); Illinois v. 4

Caballes, 543 U.S. 405, 410 (2005); United States v. Place, 462 U.S. 696, 707 (1983)).

TEX. R. APP. P. 66.3(e). 5

 State v. Woodard, 341 S.W.3d 404, 410 (Tex. Crim. App. 2011) (citing Guzman v. 6

State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)).

 Id. (citing State v. Garcia–Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008); 7

Gutierrez v. State, 221 S.W.3d 680, 687 (Tex. Crim. App. 2007)).

Id. (citing Garcia–Cantu, 253 S.W.3d at 241). 8
Weaver Page 6

de novo. “We will sustain the trial judge’s ruling if that ruling is ‘reasonably supported by

9

the record and is correct on any theory of law applicable to the case.’”

10

B. The Scope of Consent Under the Fourth Amendment.

The Fourth Amendment protects individuals against unreasonable searches and

seizures. Reasonableness is the touchstone of the Fourth Amendment. And, “except in

11 12

certain carefully defined classes of cases, a search of private property without proper consent

is ‘unreasonable’ unless it has been authorized by a valid search warrant.” The Supreme

13

Court has “long approved consensual searches because it is no doubt reasonable for the

police to conduct a search once they have been permitted to do so.” Although consent must

14

be positive, it may be given orally or by action, or it may be shown by circumstantial

evidence. The validity of an alleged consent to search is a question of fact to be determined

15

 Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010); Wiede v. State, 214 9

S.W.3d 17, 25 (Tex. Crim. App. 2007).

 Valtierra, 310 S.W.3d at 447-48 (quoting State v. Dixon, 206 S.W.3d 587, 590 (Tex. 10

Crim. App. 2006)).

U.S. CONST. amend. IV. 11

 Florida v. Jimeno, 500 U.S. 248, 250 (1991). 12

 Camara v. Municipal Court, 387 U.S. 523, 528-29 (1967). 13

 Jimeno, 500 U.S. at 250-51. 14

 Valtierra, 310 S.W.3d at 448; Johnson v. State, 226 S.W.3d 439, 446 n.27 (Tex. Crim. 15

App. 2007); Gallups v. State, 151 S.W.3d 196, 201 (Tex. Crim. App. 2004).
Weaver Page 7

from the totality of the circumstances. Under Texas law, the State must prove voluntary

16

consent by clear and convincing evidence.

17

The scope of a search is usually defined by its expressed object. A person is free

18

to limit the scope of the consent that he gives. If police rely on consent as the basis for a

19

warrantless search, “they have no more authority than they have apparently been given by the

consent.” It is therefore “important to take account of any express or implied limitations or

20

qualifications attending that consent which establish the permissible scope of the search in

terms of such matters as time, duration, area, or intensity.” On the other hand, a person’s

21

silence in the face of an officer’s further actions may imply consent to that further action.

22

The “standard for measuring the scope of a suspect’s consent under the Fourth Amendment

 Valtierra, 310 S.W.3d at 448; Ohio v. Robinette, 519 U.S. 33, 39-40 (1996); Gallups,

16

151 S.W.3d at 200-01; Guevara v. State, 97 S.W.3d 579, 582 (Tex. Crim. App. 2003).

 Valtierra, 310 S.W.3d at 448; Reasor v. State, 12 S.W.3d 813, 817 (Tex. Crim. App. 17

2000); Meeks v. State, 692 S.W.2d 504, 509 (Tex. Crim. App. 1985).

 Jimeno, 500 U.S. at 251. 18

 Id. at 252 (“A suspect may of course delimit as he chooses the scope of the search to 19

which he consents.”).

 4 WAYNE R. LAFAVE, SEARCH AND SEIZURE § 8.1© at 19 (4th ed. 2004).

20

Id. 21

 Valtierra, 310 S.W.3d at 449. Accord United States v. Starr, 533 F.3d 985, 996 (8th 22

Cir. 2008) (“Starr was present during the officers’ full search of his home, but remained silent

and made no attempt to impede their efforts or to express his concern that they were exceeding

the scope of his consent. Given these facts, we conclude that a reasonable person would have

believed that the officers had authority to conduct a full search of Starr’s home including his

closet and a roll of film; therefore, this warrantless search did not violate the Fourth Amendment

because it was authorized by Starr’s consent.”).
Weaver Page 8

is that of ‘objective’ reasonableness–what would the typical reasonable person have

understood by the exchange between the officer and the suspect?” Therefore, a court

23

reviewing the totality of the circumstances of a particular police-citizen interaction does so

without regard for the subjective thoughts or intents of either the officer or the citizen.

24

Still, in Texas, the “clear and convincing” burden “requires the prosecution to show the

consent given was positive and unequivocal and there must not be duress or coercion, actual

or implied.”

25

C. Business and Commercial Premises are Protected Areas.

The occupant of a business establishment enjoys the same constitutional right to be

free from unreasonable searches as does the occupant of a private residence. But “business

26

and commercial premises are not as private as residential premises,” and “consequently there

are various police investigative procedures which may be directed at such premises without

the police conduct constituting a Fourth Amendment search.” Police, although motivated

27

 Florida v. Jimeno, 500 U.S. at 251. 23

Meekins v. State, 340 S.W.3d 454, 459 (Tex. Crim. App. 2011) (citing Maryland v. 24

Macon, 472 U.S. 463, 470-71 (1985); Scott v. United States, 436 U.S. 128, 136 (1978)).

 Meeks v. State, 692 S.W.2d 504, 509 (Tex. Crim. App. 1985). 25

 See v. Seattle, 387 U.S. 541, 543 (1967) (“The businessman, like the occupant of a 26

residence, has a constitutional right to go about his business free from unreasonable official

entries upon his private commercial property.”); Oliver v. United States, 466 U.S. 170, 178 n.8

(1984) (“The Fourth Amendment’s protection of offices and commercial buildings, in which

there may be legitimate expectations of privacy, is based upon societal expectations that have

deep roots in the history of the Amendment.”).

 1 LAFAVE, supra note 20, § 2.4(b) at 627. 27
Weaver Page 9

by an investigative purpose, are as free as the general public to enter premises “open to the

public,” when they are open to the public. Officers are then entitled to note objects in plain

28

view, or examine merchandise as a customer would. For “actions not to constitute a

29 30

Fourth Amendment search, the officer must remain in that portion of the premises which is

open to the public.”

31

III.

The SPA asserts that the motion to suppress was granted based on incorrect

conclusions of law rather than any fact-findings that were unfavorable to the State. These

conclusions were incorrect, argues the SPA, because 1) the officers did not need permission

to be in “the parking lot” when they initiated the dog sniff; 2) neither Mr. Weaver nor the

van were seized in order to conduct the dog sniff; 3) the dog sniff was not a search; and 4)

the dog’s positive alert justified the search. The Supreme Court has made it clear that a dog

 Maryland v. Macon, 472 U.S. 463, 470 (1985). 28

 United States v. Morton, 17 F.3d 911, 913 (6th Cir. 1994) (discovery and seizure of the 29

gun did not violate the Fourth Amendment; testimony fairly established that the auto shop was

open to the public for business, so the officers lawfully entered the shop, and, when the defendant

stood up, an officer saw, in plain view, a gun in defendant’s back pocket).

 Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 329 (1979) (Fourth Amendment violated 30

by sweeping search of “adult” bookstore; officers viewed films “without the payment a member

of the public would be required to make,” and viewed magazines and books “not . . . as a

customer would ordinarily see them” by removing cellophane wrappers).

1 LAFAVE, supra note 20 § 2.4(b) at 630. Courts have held that searches of private 31

offices, airline baggage rooms, employee break rooms, employee locker rooms, private dressing

rooms of entertainers, etc. are not sustainable on the theory of “store premises open to the

public.” Id. (collecting cases).
Weaver Page 10

sniff is not a search, and it is generally accepted that a positive alert by a certified drug dog

32

is usually enough, by itself, to give officers probable cause to search. We agree with the

33

SPA that neither Mr. Weaver nor the van were seized in order to conduct the dog sniff.

But, as discussed below, the SPA assumes a fact that is not in evidence: that the van

was parked in a parking lot “open to the public.” Viewing the evidence in the light most

34

favorable to the trial judge’s ruling, this area was not part of the “public” area of his welding

shop. Therefore, the officers needed permission to be where they were when they initiated

the dog sniff, but they did not have it.

35

 Illinois v. Caballes, 543 U.S. 405, 409 (2005) (holding that a canine sniff of an

32

automobile need not be justified by reasonable articulable suspicion of drug activity); City of

Indianapolis v. Edmond, 531 U.S. 32, 40 (2000) (recognizing that a canine sniff of an automobile

is not a search); United States v. Place, 462 U.S. 696, 706-07 (1983) (holding that a canine sniff

of luggage does not constitute a search). These holdings are based on the legal theory that a

canine sniff by a well-trained narcotics-detection dog is not Fourth Amendment search because it

reveals no information other than the location of a substance that no individual has a legitimate

privacy interest in. They are all premised, however, upon a finding that the officer–and therefore

the dog–have a right to be standing where they are at the time of the canine sniff.

 United States v. Parada, 577 F.3d 1275, 1282 (10th Cir. 2009). 33

 It has been suggested that this Court should remand this case to the trial judge to enter a 34

specific finding on a disputed fact that is dispositive to the appeal. See State v. Elias, 339

S.W.3d 667, 676 (Tex. Crim. App. 2011). But here, unlike the situation in Elias, there is no

disputed fact issue. There is no evidence in this record that the van backed into the workshop

bay door was located in a "parking lot" or an area that was open to the general public. The State

argues that the van was located in a public parking lot, but there is no evidence from any witness

in the record that supports that argument. We need not remand this case for the trial judge to

enter a finding on a fact that, based on the record, is not in dispute.

 Weaver, 2010 Tex. App. LEXIS 7425, at *9 (“Because the trial judge could have 35

determined that Weaver’s consent to search for ‘Bear’ had ended, the trial court could reasonably

find that the officers, without establishing probable cause, were not entitled to search for other

purposes unrelated to that of their initial search.”). 
Weaver Page 11

A. Affording appellee the “strongest legitimate view of the evidence,” the van was not

parked in a parking lot open to the public.

The SPA’s position is apparent in the way it framed the issue for review: “May

police conduct a dog sniff of the exterior of an unoccupied vehicle in the parking lot of a

business without the permission of the owner of the business?” Surely the answer to that

question, on its face, is yes. A public parking lot is public regardless of whether a nearby

business is open or not.

In Illinois v. Caballes, the Supreme Court held that the use of a narcotics-detection

36

dog to sniff around the exterior of a motorist’s vehicle during a lawful traffic stop did not

violate the Fourth Amendment because it revealed no information other than the location of

a substance that the individual had no right to possess. In keeping with Justice Ginsburg’s

37

prophecy that Caballes “clears the way for suspicionless, dog-accompanied drug sweeps of

parked cars along sidewalks and in parking lots,” it has done just that. Federal and state

38

courts alike have used Caballes to uphold dog sniffs in the public parking lots of gas stations,

hotels, restaurants, and high schools. But in Caballes, Justice Stevens emphasized that the

39

 543 U.S. 405 (2005). 36

 Id. at 409. 37

 Id. at 422 (Ginsburg, J., dissenting) (“Today’s decision . . . clears the way for 38

suspicionless, dog-accompanied drug sweeps of parked cars along sidewalks and in parking

lots.”).

 United States v. Dyson, 639 F.3d 230-33 (6th Cir. 2011) (dog sniff of an unoccupied, 39

parked Maxima at gas station “does not in itself require reasonable suspicion”); United States v.

Perez, 440 F.3d 363 (6th Cir. 2006) (dog sniff of unoccupied Tahoe, which sat in the parking lot

of the hotel and was not stopped, detained or moved, was not a search or seizure; no reasonable
Weaver Page 12

police cannot prolong a traffic stop beyond the time reasonably required to accomplish its

purpose simply to give them time to bring in a drug dog. As our courts of appeals have

40

recognized, officers initiating a dog sniff must have the right to be where they are at the time

they initiate a dog sniff.

41

It is the Caballes line of cases that the SPA relies on here. The problem in this case

is that no one, except the prosecutor, characterized the place the van was parked as a

suspicion is required when using a drug-sniffing dog); United States v. Engles, 481 F.3d 1243,

1245 (10th Cir. 2007) (dog sniff of the exterior of a vehicle parked in a restaurant parking lot

does not require reasonable suspicion because it is not a Fourth Amendment intrusion); State v.

Hobbs, 933 N.E.2d 1281, 1286-87 (Ind. 2010) (dog sniff of car in Pizza Hut lot, conducted under

circumstances in which Hobbs was not unconstitutionally seized, not Fourth Amendment

violation); Dowty v. State, 210 S.W.3d 850, 854-55 (Ark. 2005) (dog sniff of Grand Am and

Suburban at a Western Sizzlin’ parking lot not Fourth Amendment search); Myers v. State, 839

N.E.2d 1154, 1159 (Ind. 2005) (high-school-student defendant’s car was subject to the narcotics

dog-sniff test absent reasonable particularized suspicion, as it was parked and unoccupied and the

defendant was in school).

Caballes, 543 U.S. 407-08 (“A seizure that is justified solely by the interest in issuing a 40

warning ticket to the driver can become unlawful if it is prolonged beyond the time reasonably

required to complete that mission. In an earlier case involving a dog sniff that occurred during an

unreasonably prolonged traffic stop, the Illinois Supreme Court held that use of the dog and the

subsequent discovery of contraband were the product of an unconstitutional seizure. We may

assume that a similar result would be warranted in this case if the dog sniff had been conducted

while respondent was being unlawfully detained.”) (citation omitted).

See Branch v. State, 335 S.W.3d 893, 901(Tex. App.—Austin 2011, no pet.) (“Given 41

the evidence regarding the initial traffic stop and the arrival of the drug-detection dog, all of

which shows that the dog arrived within eight minutes of the traffic stop and before Wingfield

finished conducting normal procedures for a traffic stop, we conclude that the record supports an

implied finding by the trial court that the time it took for the dog to arrive did not prolong the

initial stop beyond the time reasonably required to complete the mission of the stop.”); Johnson

v. State, 323 S.W.3d 561, 562-63 (Tex. App.—Eastland 2010, pet. ref’d) (Fourth Amendment

does not requires reasonable suspicion to justify using a drug-detection dog to sniff a vehicle

during a legitimate traffic stop; while one officer was running a check on appellant's driver’s

license, another officer had his drug-detection dog conduct an open-air search around the vehicle,

and the dog alerted on the driver’s door).
Weaver Page 13

“parking lot.” Lt. Lowrie said that the truck was parked in a “sall[y] port.”

Q. Where was the van parked?

A. It was the–I guess it would be the north side of the building back up to the big sall[y]

port on the building.

42

Q. Is it, like, a parking lot or a parking area?

A. It’s a big, bay door. I guess you would say it’s kind of like a loading/unloading for

the business area.

The State argued to the trial court that “The vehicle . . . was located on a parking lot

that was in–in a business that was open for public use or open to the public. So the fact that

the officers decided to run the canine, even though maybe they didn’t see or smellsomething,

they didn’t have to have any type of reasonable suspicion to do that.” The SPA argues

similarly: “While on the premises of a business open to the public, police are permitted to

conduct a dog sniff of vehicles parked in the parking area. . . . The unoccupied van was

parked in the parking lot[.]”

43

But the trial court did not find that the van was parked in a public parking lot. Rather,

it found the van “was located beside the defendant’s shop on property owned by the

 Sally port may have been an unfortunate choice of words. It literally means “1. in 42

fortification, a postern gate, or a passage under ground from the inner to the outer works, to

afford free egress to troops in making a sally, closed by massive gates when not in use. 2. a large

port on each quarter of a fire ship, for the escape of the men into boats when the train is fired;

also, a large port in an ironclad.” WEBSTER’S NEW TWENTIETH CENTURY DICTIONARY

UNABRIDGED 1599 (2nd ed.1983). What the officer undoubtedly meant to say was that the van

was backed into a loading-dock bay at the rear of the welding workshop.

 SPA’s Brief at 4, 7. 43
Weaver Page 14

defendant.” The prevailing party is afforded the strongest legitimate view of the evidence

and all reasonable inferences that may be drawn from that evidence. The facts here support

the trial court’s implicit finding that the van was not parked on any part of the business

premises open to the public or in a public “parking lot.” From the evidence in this record,

44

the trial judge could have found otherwise, but he did not do so. We are obliged to give

almost total deference to his implied factual findings. Therefore, unless the officers had

45

Mr. Weaver’s consent to be standing beside the van at the loading dock, they were no longer

entitled to be in the non-public portion of the welding workshop at the time they conducted

the dog sniff.

46

 The record indicates that the parking lot for the welding shop was at the front of the 44

shop where “Bear’s” car was parked. Furthermore, it is unlikely that Mr. Weaver would be

storing his “broke down” vehicles, boat, and other items in a public parking lot, and Lt. Lowrie

testified that those items were out in “the back” area with the van. It is also unlikely that the

general public would have access to the workshop area and loading dock of a welding shop as

welding operations involve both significant fire hazards and risks due to the use and movement

of heavy equipment. 

State v. Woodard, 341 S.W.3d 404, 410 (Tex. Crim. App. 2011). 45

 Cf. Buchanan v. State, 129 S.W.3d 767, 774 (Tex. App.—Amarillo 2004, pet. ref’d). 

46

In that case, the trial court denied a motion to suppress, but made no findings. The court of

appeals, viewing the facts in the light most favorable to the prevailing party as it was required to

do, found that appellant had no legitimate expectation of privacy in the dirt driveway entrance to

a business run behind his house:

The time of day, the presence of no one outside the fence with whom the officers

could speak, the large open gate, the presence of a well-defined dirt driveway

leading through the gate to a building behind the empty house, appellant’s

operation (behind the gate) of a business involving vehicles owned by third

parties, the reasonable inference not only that third parties passed through the

gates to obtain appellant’s mechanical services but also that they were authorized

to do so during normal business hours, the lack of any evidence illustrating that

only appellant or certain designated individuals could drive their cars through the
Weaver Page 15

B. Affording Mr. Weaver the “strongest legitimate view of the evidence,” the officers

did not have continued consent to be on the premises at the time they ran the dog

sniff.

The SPA assertsthat the officers–who had lawfully entered the premises– were “under

no obligation to leave unless asked” and that there “was no evidence or fact finding that the

officers were ever asked to stop their investigation or leave the premises.” But the relevant

47

question here is as follows: What would the typical reasonable person have understood by

the exchange between the officers and Mr. Weaver? Mr. Weaver gave oral consent to

48

search his welding shop for “Bear,” voluntarily showed the officers his registered guns, and

49

then unequivocally refused to consent to a search of the van backed up in the loading dock

of his shop.

We recently addressed the scope of a consent to search under the Fourth Amendment

gate, the presence of a third party actually working on his vehicle inside the

fenced lot, and the officers confining themselves to the well-defined dirt driveway

are indicia upon which a trial court could reasonably find that appellant had no

legitimate expectation of privacy in the dirt driveway behind the fence and that

which could be perceived from it. Thus, no search occurred when the officers

passed through the gate while utilizing that path and smelled the ether. Nor can

we say that the trial court abused its discretion in refusing to find that the entry

violated appellant’s constitutional rights.

Id. at 774. 

 SPA’s Brief at 7. 47

 Florida v. Jimeno, 500 U.S. 248, 251(1991). 48

 See State v. Bagby, 119 S.W.3d 446, 450 (Tex. App.—Tyler 2003, no pet.) (officer’s 49

entry into appellee’s shed was expressly limited in scope by appellee to officer’s inspection of the

firearms to determine if they had been recently discharged; continuation of search of shed after

inspection was finished–resulting in discovery of methamphetamine–violated scope of consent ).
Weaver Page 16

in Valtierra v. State. There, the trial court and the court of appeals agreed that Heriberto

50

Valtierra consented to have police officers enter his apartment to talk to Erica, a 13-year-old

runaway. The question before us was whether Heriberto’s consent extended to the officer’s

act of walking down the open hallway to knock on the bathroom door where Erica was said

to be taking a shower. We held that it was objectively reasonable for the officer to conclude

that Heriberto’s general consent to come inside the apartment to talk to Erica included

consent to walk down the open hallway to knock on the bathroom door. Thus, the officer

51

was lawfully present in the hallway when he observed, through an open bedroom door, two

men making furtive gestures and throwing items under the bed.

52

This case is like Valtierra in that the officers here obtained oral consent to enter the

premises to look for a specific individual. This case is also unlike Valtierra, because here

the officers had finished looking for the specific individual and had achieved the ostensible

purpose of their entry. And here, unlike in Valtierra, Mr. Weaver unequivocally said “No,”

to a further search of his van.

The legal question is, what would “the typical reasonable person have understood by

the exchange between the officer and the suspect?” We think that it was objectively

unreasonable for the officers to conclude that Mr. Weaver’s act of objecting to the van search

 310 S.W.3d 442, 451-52 (Tex. Crim. App. 2010). 50

 Id. 51

 Id. 52
Weaver Page 17

indicated, by clear and convincing evidence, his consent for the officers to remain standing

beside his van while one officer went back out to the patrol car and retrieved a drug dog to

run around his van. A typical reasonable person would have understood–from Mr.

53

Weaver’s refusal of consent to search the van–that he had had enough. It would be

unreasonable for that typical person, having heard an unequivocal “No,” to think that he had

“positive and unequivocal” consent, not only to remain standing beside the van on the nonpublic premises, but also to retrieve yet another unwelcome intruder. There is certainly no

indication in the record that Mr. Weaver consented for the officers to bring the drug dog from

the patrol car to the van parked at his loading dock. From these facts, the trial judge could

have concluded that the consent to search for “Bear” was lawful at its inception, but that it

had been completed. The officers had completed their stated mission. Thus, when Mr.

Weaver unequivocally said “No” to any further search of his van, the officers violated the

Fourth Amendment by remaining on his private business premises and bringing in a drug dog

without legal authorization. Therefore, the trial judge could have justifiably concluded that

the “nonconsensual” use of the drug dog and the subsequent discovery of contraband were

the product of an unconstitutional search on private premises.

The record, viewed in the light most favorable to the trial judge’s ruling, supports an

 Accord Baldwin v. State, 278 S.W.3d 367, 372 (Tex. Crim. App. 2009) (“Deputy Smith

53

believed that appellant’s answer to a question regarding the location of his identification

constituted permission to retrieve that identification. We find this belief to be objectively

unreasonable. Appellant’s response was simply an answer to the officer’s question (after being

handcuffed) and not a consent for the officer to search his person.”) (emphasis added).
Weaver Page 18

implicit fact finding that the van was parked in a protected, non-public area of the business

premises rather than in a parking lot open to the public. And the record also supports the trial

judge’s legal conclusion that the officers had worn out their welcome and lingered beyond

the scope of Mr. Weaver’s consent before the initiation of the dog sniff. We recognize that

this case is a close call–but it is in the “close call” cases that the need for giving discretion

to the trial judge and deferring to his factual findings is greatest, especially when the State

must prove positive consent by clear and convincing evidence. We therefore affirm the court

of appeals’s judgment that upheld the trial judge’s ruling.

Delivered: September 28, 2011

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