MEMORANDUM OPINION
Nos. 04-08-00238-CR &
04-08-00239-CR
Heriberto Arias VALTIERRA,
Appellant
v.
The STATE of Texas,
Appellee
From the 216th Judicial District Court, Kendall County, Texas
Trial Court Nos. 4612 & 4613
Honorable Stephen B. Ables, Judge Presiding
Opinion by: Marialyn Barnard, Justice
Sitting: Sandee Bryan Marion, Justice
Phylis J. Speedlin, Justice
Marialyn Barnard, Justice
Delivered and Filed: November 17, 2010
AFFIRMED
After the trial court denied his motion to suppress, appellant Heriberto Arias Valtierra
pled guilty to the offense of possession of a controlled substance. We affirm the trial court’s
judgments.
BACKGROUND
Police officers Pedro Moncada and John Rutledge learned from a third officer that a
thirteen-year-old runaway was living in an apartment in Boerne, Texas. Valtierra v. State, 293
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S.W.3d 697, 699 (Tex. App.—San Antonio 2009), rev’d, 310 S.W.3d 442 (Tex. Crim. App.
2010). The officers decided to conduct a “knock and talk” at the apartment. Id. The officers
entered the apartment and, after asking questions about the runaway, Officer Moncada walked
down a hallway toward a bathroom where the girl was taking a shower. Id. at 700. As Officer
Moncada walked down the hallway toward the bathroom, he saw two men in a bedroom
throwing items under a bed. Id. Upon seeing the men, Officer Moncada called Officer Rutledge
and, after the men were directed out of the room and into the living room, Officer Rutledge
entered the bedroom where he saw drug paraphernalia on a television stand. Id. This
observation led officers to obtain a search warrant, which resulted in the discovery of cocaine,
drug paraphernalia, and a stolen firearm. Id.
Valtierra was charged with possession of cocaine with intent to deliver. Id. He initially
pled not guilty, but after his motion to suppress was denied by the trial court, Valtierra entered
into a plea agreement whereby he pled guilty to possession of cocaine. Id. He was sentenced to
five years in the Texas Department of Criminal Justice–Institutional Division. On original
appeal to this court, Valtierra contended the trial court erred in denying his motion to suppress
because: (1) police officers did not have consent to enter the apartment, proceed down the
hallway toward the bathroom, or search the apartment; (2) there were neither exigent
circumstances nor evidence to justify a protective sweep; (3) the evidence seized was not in plain
view; and (4) the subsequent search warrant was not supported by probable cause. Id. In a
published opinion, this court reversed the trial court’s judgments and remanded the matter to the
trial court for further proceedings. Id. at 699.
In reversing, we held that although police officers had consent to enter the apartment,
neither had consent to proceed down the hallway. Id. at 702-03. We further held there were no
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exigent circumstances or evidence to support a protective sweep in order to justify the officers’
procession down the hallway. Id. at 703-05. Given the absence of valid consent, evidence of
exigent circumstances, or evidence to support a protective sweep, we held Officer Moncada had
no right to proceed down the hallway where he saw the men throwing items under a bed, which
ultimately led to the discovery of contraband. Id. at 706. Accordingly, we held the trial court
erred in denying Valtierra’s motion to suppress. Id. However, on the State’s petition for
discretionary review, the court of criminal appeals held it was objectively reasonable for the
officers to conclude that Valtierra’s “general consent to come inside the apartment . . . included
consent to walk down the open hallway to knock on the bathroom door.” Valtierra, 310 S.W.3d
at 451-52. The court of criminal appeals therefore reversed this court’s judgments, and
remanded the matter back to this court to determine whether Officer Rutledge’s actions, i.e., his
entry into, and “protective sweep” of, the bedroom, after Officer Moncada’s observations during
his valid “walk down the hallway” were reasonable under the Fourth Amendment. We hold they
were, and now affirm the trial court’s judgment.
ANALYSIS
Because of our original disposition on the consent issue, Valtierra’s first issue on appeal,
we did not reach his second through fourth issues. Given the decision of the court of criminal
appeals, we now review those remaining issues.
Protective Sweep and Exigent Circumstances
In his second issue in his original brief and in his supplemental brief on remand, Valtierra
contends the trial court erred in denying his motion to suppress because neither exigent
circumstances nor a protective sweep justified Officer Rutledge’s entry into the bedroom.
Officer Rutledge, at Officer Moncada’s request, entered the bedroom after Officer Moncada
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observed the two men throwing things under the bed and the men were ordered into the living
room. Valtierra argues the “furtive gestures” observed by Officer Moncada were insufficient to
justify entry into the bedroom under the Fourth Amendment, and therefore he was subjected to
an illegal search. Valtierra claims that because the officers admitted they did not feel they were
in danger or their safety was in jeopardy, and the apartment occupants were in the living room
unarmed and cooperating, the search was unlawful under the Fourth Amendment. Because we
find the evidence supports Officer Rutledge’s entry into the bedroom as a protective sweep, we
need not address whether it was also justified based on the existence of exigent circumstances.
As noted in our original opinion, a trial court’s ruling on a motion to suppress is reviewed
under a bifurcated standard of review. Valtierra, 293 S.W.3d at 700 (citing Ford v. State, 158
S.W.3d 488, 493 (Tex. Crim. App. 2005); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App.
1997)). In this type of review, we give almost total deference to a trial court’s determination of
historical facts, especially those that are based on an evaluation of credibility and demeanor.
Guzman, 955 S.W.2d at 89. If a trial court makes express findings of fact, as it did here, we view
the evidence in the light most favorable to the trial court’s ruling, and determine whether the
evidence supports the factual findings. See State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim.
App. 2006). We review a trial court’s application of the law to the facts de novo, as long as such
questions do not turn on credibility and demeanor. Guzman, 955 S.W.2d at 89. As to the trial
court’s application of the law of search and seizure to the specific facts of a particular case, we
use the de novo standard of review. See Wiede v. State, 214 S.W.3d 17, 25 (Tex. Crim. App.
2007). We will sustain a trial court’s ruling on a motion to suppress if it is “reasonably
supported by the record and is correct on any theory of law applicable to the case.” State v.
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Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006). The court’s ruling will be reversed only if
it is outside the zone of reasonable disagreement. Id.
A protective sweep is a quick and limited search of premises conducted to protect the
safety of police officers or others. Maryland v. Buie, 494 U.S. 325, 327 (1994); Reasor v. State,
12 S.W.3d 813, 815 (Tex. Crim. App. 2000). It is generally conducted incident to an arrest, but
the absence of an arrest does not preclude a protective sweep, even one within a defendant’s
home. United States v. Gould, 364 F.3d 578, 584-86 (5th Cir. 2004). For a protective sweep to
be valid, the police must not have entered or remained in the home illegally, and their presence
in the home must be for valid law enforcement purposes. Id. at 587. A legitimate protective
sweep must be supported “‘by a reasonable, articulable suspicion . . . that the area to be swept
harbors an individual posing a danger to’” those on the scene, and may be no more than a
“cursory inspection of those spaces where a person may be found.” Id. (quoting Buie, 494 U.S.
at 1099-1100); see Reasor, 12 S.W.3d at 816-17. A protective sweep may last only long enough
to dispel the reasonable suspicion of danger, and no longer than officers are justified in
remaining in the home. Gould, 364 F.3d at 587 (citing Buie, 494 U.S. at 1099-1100); Reasor, 12
S.W.3d at 816. However, we must keep in mind that the Fourth Amendment bars only
unreasonable searches and seizures. Buie, 494 U.S. at 331. Whether a search is unreasonable
requires a balancing of an individual’s privacy interest against the promotion of legitimate
government interests. Id. Even without a warrant, a search may be permitted when a strong
public interest exists for the search. Id.
At the hearing on the motion to suppress, and as found by the trial court, after the officers
entered the apartment, a male individual walked out of one of the bedrooms at the back of the
apartment. This individual was instructed to come to the living room and sit on the couch, which
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he did. When Officer Moncada walked down the hallway to the bathroom, and to where the
initial individual had exited, he saw two more individuals in a bedroom, sitting on the ground
next to a bed. According to the officer, when these individuals saw him, they looked extremely
nervous and engaged in “furtive movements,” throwing unknown objects underneath the bed.
Officer Moncada stated this was suspicious behavior, and further stated he could not tell what
items were thrown under the bed. It was then that he asked Officer Rutledge to come down the
hallway. The individuals were “pulled . . . out of the bedroom” and asked to sit in the living
room, which they did. Officer Moncada said he called for Officer Rutledge because he did not
know what the individuals had thrown under the bed, but it “could have been a weapon.”
After removing the two individuals from the bedroom, Officer Moncada called for the
alleged runaway, who finally came out of the bathroom, and she was placed in the living room as
well. At that point, Officer Rutledge entered the bedroom. When Officer Rutledge entered the
bedroom, Officer Moncada returned to the living room to watch the individuals seated on the
couch; none of them were handcuffed at that time. Officer Moncada admitted that “at the
beginning” he was not concerned that either he or Officer Rutledge would be attacked by the
occupants of the apartment and did not fear for their safety, but when asked why Officer
Rutledge entered the bedroom, he stated it was to “find out what they threw out and mak[e] sure
there’s no weapons, nobody else in the room.” He also testified that at the time he entered the
apartment, he thought there were only two people inside, and did not believe anyone else was in
the apartment. This belief was obviously dispelled by the discovery of three additional male
individuals. Officer Moncada expressed concern that he and Officer Rutledge were “out
numbered” and he “didn’t want to take any chances.” He stated he wanted Officer Rutledge to
enter the bedroom to check for weapons and other individuals. After Officer Rutledge entered
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the bedroom, he ultimately came out and told Officer Moncada he found drug paraphernalia in
plain view.
Officer Rutledge testified he went into the bedroom to “check for a weapon, see if
anybody else [was] possibly in the room, because now we’re outnumbered.” The officer
admitted there were no apparent safety issues when they entered the apartment; however, once
they moved to the back of the apartment they “need[ed] to make sure that there is nobody else in
that house. Somebody throw’s [sic] something under the bed. It’s now officer safety time.” The
officer stated he walked into the bedroom and first checked the closet, which was open. Finding
no one in the closet, he walked over toward the bed and as he is walking, he sees a television
stand and on top of the stand are two “1-by-1 Ziplock [sic] baggies containing what appeared . . .
to be a controlled substance.” One of the baggies contained “a large amount of powder,” and
“[t]he other one had some small just granules or say like leftovers.” Officer Rutledge also saw a
scale. He stated he did not have to move anything to see the baggies, and that he did not touch
anything.
Officer Rutledge said he then went over to the bed and “retrieved what was thrown under
the bed.” He described it as a light bulb with the metal base broken off, wrapped in a napkin,
with a straw and lighter next to it. Officer Rutledge stated that in his experience as a police
officer, such items are used “to smoke a controlled substance.” He further stated the light bulb
appeared to have burned residue on it. After seeing the plastic baggies and retrieving the light
bulb, Officer Rutledge walked into the living room and told Officer Moncada what he had seen,
and that he intended to contact a supervisor. After failing to get a written consent to search,
Officer Rutledge called an investigator and had him type up a search warrant. Later, the search
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warrant arrived and officers searched the apartment, finding narcotics, drug paraphernalia, and a
stolen firearm. See Valtierra, 293 S.W.3d at 700.
Viewing the evidence in the light most favorable to the trial court’s denial of Valtierra’s
motion to suppress, we find the evidence supports the trial court’s factual findings, and hold the
trial court did not abuse its discretion in denying the motion. See Kelly, 204 S.W.3d at 818. The
officers legally entered the apartment and Officer Moncada had consent to proceed down the
hallway. See Valtierra, 210 S.W.3d at 451-52; see also Gould, 364 F.3d at 587. The officers’
presence in the apartment was for a valid law enforcement purpose, i.e., trying to determine if an
underage runaway was in the apartment. See Gould, 364 F.3d at 587. The protective sweep
conducted by Officer Rutledge was supported by a reasonable, articulable suspicion that the
bedroom might harbor another individual, and perhaps weapons, and was, according to his
testimony, nothing more than a cursory inspection of those spaces where a person or weapon
might be found. See id.; Reasor, 12 S.W.3d at 816-17. As Officer Rutledge stated, there might
have been someone else in the apartment, and a weapon might have been thrown under the bed.
Moreover, when the intrusion of the cursory sweep is balanced against the officers’
safety, a strong public interest, the sweep was neither unreasonable nor illegal. See Buie, 494
U.S. at 331. The officers had a strong interest in assuring themselves there were no other
individuals in the house, individuals who might pose a danger and could unexpectedly launch an
attack. See id. at 333. After all, when they first entered the apartment, Officer Moncada
believed there were only two individuals inside. However, subsequent to their initial entry, the
officers observed no less than three male individuals exiting and acting suspiciously in the
bedrooms of the apartment. And, both officers feared being outnumbered.
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Accordingly, we hold the protective sweep was justified by the evidence, and the trial
court did not err in concluding a protective sweep was necessary for officer safety, and denying
the motion to suppress based on Valtierra’s challenge to the protective sweep. We therefore
overrule Valtierra’s second issue.
Plain View
Valtierra next contends his motion to suppress was erroneously denied because the
evidence seized was not located in plain view. More specifically, Valtierra asserts the baggies
observed by Officer Rutledge on the television stand were not apparent contraband, and with
regard to the light bulb, straw, and lighter, those items were only in the officer’s view after he
took certain affirmative action to view the items.
A warrantless search is per se illegal unless it falls within an exception to the warrant
requirement. Katz v. United States, 389 U.S. 347, 357 (1967); Walter v. State, 28 S.W.3d 538,
541 (Tex. Crim. App. 2000). The plain view doctrine is an exception to the warrant requirement,
and allows an officer to seize evidence found in plain view. Coolidge v. New Hampshire, 403
U.S. 443, 465 (1971). To satisfy the exception to the warrant requirement based on the plain
view doctrine, two elements must be established: (1) an officer must lawfully be on the premises,
and (2) it must be immediately apparent to the officer that the items constitute evidence, meaning
there is probable cause to associate the item with criminal activity. Walter, 28 S.W.3d at 541.
Based on the first prong of the test, items in plain view may be seized when an officer is lawfully
within an apartment and conducts a legal protective sweep. See id.
We hold the first prong of the plain view doctrine was satisfied because the officers were
lawfully on the premises based on Valtierra’s consent, see Valtierra, 310 S.W.3d at 451-51, and
because we have determined Officer Rutledge observed the items while conducting a lawful
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protective sweep. See Walter, 28 S.W.3d at 541. Officers Moncada and Rutledge were given
consent to enter the apartment and walk down the hallway towards the bathroom. As discussed
in Valtierra’s second issue, Officer Rutledge was authorized to conduct a protective sweep of the
bedroom. Accordingly, Officer Rutledge was lawfully in the bedroom when he observed the
baggies and other items. See Cardenas, 115 S.W.3d at 62; Reasor, 12 S.W.3d at 817.
With regard to the seizure of the plastic baggies on top of the television stand, we hold it
was immediately apparent to Officer Rutledge that these items constituted evidence of an illegal
act. Valtierra relies heavily on Sullivan v. State for the assertion that plastic bags are not objects
that are inherently dangerous, contraband, or stolen goods. See 626 S.W.2d 58, 60 (Tex. Crim.
App. 1983). In Sullivan, the Texas Court of Criminal Appeals held a trial court erred in
admitting two clear plastic bags containing methamphetamine seized by an officer under the
plain view doctrine because the officer’s testimony suggesting the items “may possibly be some
kind of narcotic” was no more than a mere conclusion and fell short of the State’s burden to
satisfy the immediately apparent prong of the plain view doctrine. Id.
Here, Officer Rutledge testified that based on his training and prior experience as a peace
officer, one-by-one inch plastic baggies are highly likely to be evidence of a controlled
substance, especially when they contain powdery substances or residue. Officer Rutledge
testified one of the baggies on top of the television stand had a large amount of white powder in
it, and smaller bag contained small granules, possibly “leftovers.” In addition, Officer Moncada
testified the two men in the bedroom made furtive movements when he looked in the bedroom.
See id. at 60 (indicating that furtive movements by defendant can lead officer to believe plastic
baggies contain evidence of crime). Accordingly, the testimony before the trial court provided
sufficient evidence for the court to conclude Officer Rutledge provided more than mere
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conclusions, and possessed sufficient experience and knowledge to determine the plastic baggies
likely contained a controlled substance, satisfying the immediately apparent prong. See id. at 59-
60. Therefore, with regard to the plastic bags, the evidence supports the trial court’s express fact
finding that Officer Rutledge seized items in plain view. See Kelly, 204 S.W.3d at 818-19.
There is also sufficient evidence to support the trial court’s finding that the other items
seized by Officer Rutledge during the protective sweep were in plain view. As previously
described, the other items included a broken light bulb, as well as a cut straw and lighter, which
were under the bed. After checking the closet in the bedroom for other individuals, Officer
Rutledge testified that based on Officer Moncada’s statements regarding items thrown under the
bed, he looked around the bed to determine if a weapon had been thrown under the bed. Officer
Rutledge stated the bed was very low to the ground, and knowing that a person could not be
hiding under the bed, he did not bend down to conduct a protective sweep under the bed.
However, he testified that without taking any action, he could see a broken light bulb and napkin
near the back corner of the bed because the bed did not have a bed skirt or duvet cover. He also
specifically stated that he “didn’t search under the bed. It was in plain – you could see – what
was thrown underneath the bed in plain view.” Admittedly, at one point, Officer Rutledge
testified he had to open the napkin to see the broken light bulb as well as the straw and lighter,
but this conflicted with his other statements that he could see the items without any affirmative
action. As the sole trier of fact and judge of the credibility of the witnesses and weight given to
their testimony, the trial court was entitled to believe the portion of Officer Rutledge’s testimony
indicating he saw the light bulb, napkin, straw, and lighter under the bed without bending down
or taking affirmative action to open the napkin. See Ross, 32 S.W.3d at 855. Accordingly, we
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hold Officer Rutledge’s testimony is sufficient to support the seizure of the broken light bulb and
the accompanying items. We therefore overrule Valtierra’s third issue.
Search Warrant
Finally, Valtierra contends the trial court erred in denying his motion to suppress the
search warrant and arrest warrant. 1 Valtierra argues the information in the affidavit supporting
the search warrant was based on a warrantless entry of a residence and illegal protective sweep
conducted by Officer Rutledge. He also asserts the affidavit contains contradictory testimony
from Officer Moncada regarding whether he had permission to enter and walk through the
premises. Finally, because the affidavit contains no information as to the reliability and
credibility of the affiant, Valtierra contends the affidavit contains conclusory statements and fails
to establish probable cause to search the residence.
It is well-settled that a search warrant must be based on probable cause. Cassias v. State,
719 S.W.2d 585, 587 (Tex. Crim. App. 1986). Probable cause to support the issuance of a search
warrant exists when the facts submitted to the magistrate are sufficient to justify a conclusion
that the object of the search is probably on the premises at the time the warrant is issued. Arrick
v. State, 107 S.W.3d 710, 715 (Tex. App.—Austin 2003, pet. ref’d). We determine the
sufficiency of a search warrant affidavit by examining the totality of the circumstances, and we
review only facts found within the four corners of the affidavit, and will not go behind the
affidavit to impeach the facts therein. See id. at 715-16; see also Hankins v. State, 132 S.W.3d
380, 388 (Tex. Crim. App. 2004), superseded on other grounds by, TEX. CODE CRIM. PROC. art.
37.071 § 2(e)(2)(B) (West Supp. 2010). Accordingly, we give great deference to the issuing
1
Although Valtierra’s summary of his argument contests the validity of both the search and arrest warrants, his
analysis focuses exclusively on the search warrant. In response, the State also addresses the validity of only the
search warrant. Therefore, given Valtierra’s absence of argument with regard to the arrest warrant, our review is
limited to the validity of the search warrant.
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magistrate’s probable cause determination, and will sustain the determination “so long as the
magistrate had a substantial basis for concluding that a search would uncover evidence of
wrongdoing.” Arrick, 107 S.W.3d at 716.
Here, the issuance of the search warrant is based largely upon information provided by
Officers Moncada and Rutledge to the affiant, Detective Tom Smith. “Where facts and
circumstances within the knowledge of a police officer, arising from a reasonably trustworthy
source, would warrant a person of reasonable caution in the belief that items of contraband or
evidence of a crime may presently be found in a specified place, there is probable cause to issue
a warrant to search that place.” Davis v. State, 27 S.W.3d 664, 668 (Tex. App.—Waco 2003, pet
ref’d). In this case, the affidavit provides the following facts: (1) a number of plastic bags
commonly used for the transport and sale of narcotics were found in the home; (2) some of the
bags contained a white powdery residue; (3) drug paraphernalia, specifically a light bulb, straw,
and scale were found in the home; and (4) the officers were investigating a report of an underage
female runaway staying at the apartment. In addition, the search warrant was issued less than
twenty-four hours after Officers Moncada and Rutledge arrived on the premises. Given the
information in the supporting affidavit, we hold the magistrate had a substantial basis for
concluding that probable cause existed for the issuance of a search warrant. See Arrick, 107
S.W.3d at 716. Accordingly, Valtierra’s fourth issue is without merit, and is overruled.
CONCLUSION
Based upon the decision of the court of criminal appeals, and our subsequent review of
Valtierra’s remaining issues on remand, we hold the trial court did not err in denying the motion
to suppress, and we affirm the trial court’s judgment.
Marialyn Barnard, Justice
Do Not Publish
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