## I N T H E C O U R T O F C R I M I N A L A P P E A L S O F T E X A S

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. M E E K I N S , A p p e l l a n t

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T H E S T A T E O F T E X A S

O N S T A T E ’ S P E T I T I O N F O R D I S C R E T I O N A R Y R E V I E W F R O M T H E S E V E N T H C O U R T O F A P P E A L S

L U B B O C K C O U N T Y

K E L L E R , P
. J
. , f

i l e d a c o n c u r r i n g o p i n i o n .

T he issue addre ssed by the court of appea ls was “whe ther appellant consente d to the sear ch,” 1

not whether any consent he might have given was voluntary

. Whether or not someone’s words

actua lly constitute “conse nt” is not an issue that fits neatly into the cate g ories of case s that have been
addre ssed by the S upreme Court. The S upreme Court’s case law appe ars to addr ess three ty pes of

Mee kins v. State , 303 S.W .3d 25, 27 (Tex. App.–Amarillo 2009). 1MEEKINS CONCU RRENCE — 2

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

appar ent) to consent. Illinois v. Rodriguez , the case t hat addresses appare nt authority to consent, 4
seems to have the most bearing on the issue bef ore us.
I n Rodriguez , the Supreme Court held that a sea rc h p u rs u an t to consent was valid if the
office rs had a reasonable belief that the person who consented had authority to d o s o , ev en if that
belief turned out to be wrong
. I n arr iving at this holding, the Supreme Court explained at leng th that 5

rea sonablene ss, not corr ectne ss, was the g eneral s t andard under the Four th Amendment by which

to judge the fac tual deter

minations made by g overnme nt ag ents. T h e C o u rt found “no rea son to 6 depar t from this g ener al rule with respe ct to fac ts bear ing upon the authority to consent to sear ch.” 7

I ndeed, the opinion at one point ref ers to the appar ent authority to consent as simpl y “a p p ar en t
consent” and calls sear ches conducte d pursuant t o co n s ent g iven by someone with appar ent

8

See Sc hneck

loth v. Bustamonte , 412 U.S. 218 (1972). 2
See F lorida v. Jimeno , 500 U.S. 248 (1991). 3
See Georgia v. Randolph , 547 U.S. 103 (2006); Illinois v. Rodriguez , 497 U.S. 177 (1990). 4
497 U.S. at 189. 5
Id. at 183-88; see id. at 184 (re jecting the contention that g overnme nt office rs’ “ exercise 6 of judgme nt reg arding the fac ts” must be “not only responsible but corr ect.” ); id. at 185 (“I t would be superf luous to multipl y these examples. I t is appar ent that in order to satisfy the ‘re asonable ness’ require ment of the Four th Am en d m en t , what is g ener ally demande d of the many fac tual deter minations that must reg ularly be made by ag ents of t he g overnme nt – whether the mag istrate issui n g a warrant, the police officer executing a warrant, or the pol ice officer conducting a search
or seizure under one of the exceptions to the war rant require ment – is not that they alway s be corr ect, but that they

alway s be re asonable .”).
Id. at 186. 7
Id. at 187. 8MEEKINS CONCU RRENCE — 3

authority as “see mingly consente d sear ches.” Rodriguez ’s rationale would appea r to embra ce not 9 only situations in which an office r reasonably but incorre ctly beli eved that a person had authority

to consent, but also to a s i t u at i on in which an office r rea sonably but incorre ctly believed that a
person had

consente d.
The office r’s rea sonable belief being the inquiry , the standard for resolving that inquiry is “objec tive”: whether “the fac ts av ai l able to the office r at the moment” would “wa rra nt a man of

rea sonable caution i n t h e b el i ef” that the suspect had consente d. The subjective intent of the 1 0
suspect would not be the issue; rathe r, the issue would be wha t a rea sonable police office r would
have be lieved whe n confr onted with the suspect’ s responses. 1 1

I n this case , the trial court could have believed, based on the demea nor and tone of voice of appellant on the videotape and based on the demea nor and tone of voice of the office r on the witness stand (which w e ca

nnot observe) , that appellant’ s response of “y es” or “I g uess” would ha ve bee n taken by a re asonable office r to be c onsent.
I join the Court’s opinion.

Filed: May

4, 2011 Publis h

Id. at 186 n.*.

9
See id. at 188. 1 0
I t may never

theless be possible that a suspect’s actua l intent to consent would defeat a 1 1 Four th Amendment complaint even if it wer e deter mined that the office r did not act rea sonably

. This might occur if a suspect were to later c onfess that his earlier ambiguous response was intended as consent.