                                MEMORANDUM OPINION
                            Nos. 04-08-00236-CR and 04-08-00237-CR

                                      Eduardo VALTIERRA,
                                            Appellant

                                                  v.

                                       The STATE of Texas,
                                             Appellee

                    From the 216th Judicial District Court, Kendall County, Texas
                                   Trial Court No. 4610 and 4611
                           Honorable Stephen B. Ables, Judge Presiding

Opinion by:      Rebecca Simmons, Justice

Sitting:         Catherine Stone, Chief Justice
                 Karen Angelini, Justice
                 Rebecca Simmons, Justice

Delivered and Filed: November 17, 2010

AFFIRMED

           This case is on remand from the Court of Criminal Appeals. Valtierra v. State, 310

S.W.3d 442 (Tex. Crim. App. 2010). The issue on appeal is whether the trial court erred when it

failed to grant Appellant Eduardo Valtierra’s motion to suppress. Valtierra argues that the

motion should have been granted because: (1) the officers lacked consent to enter and search the

residence, and (2) the subsequent search warrant obtained by the officers was based on illegally

obtained evidence and, therefore, lacked probable cause. We affirm the order of the trial court.
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                                             FACTUAL BACKGROUND

         Boerne Police Officers Pedro Jose Moncada and John Rutledge were dispatched to the

Valtierra apartment to conduct a “knock and talk” in regard to a possible thirteen-year-old

runaway identified as “Erica.” Officer Moncada recalled speaking to a young female named

Erica, in an unrelated incident, at the same residence the previous week. After Officer Moncada

knocked on the door of the residence, Heriberto Valtierra (Appellant Eduardo Valtierra’s brother

and co-defendant) opened the door. Officer Moncada, speaking in Spanish to Heriberto, inquired

about Erica; and Heriberto informed him that she was in the shower. 1 Officer Moncada then

requested permission to enter the residence, and according to the officer, Heriberto gave oral

consent. After both officers entered the residence, and were standing just inside the front door,

Officer Moncada asked to speak to Erica. Heriberto replied, “Ah, yes. She’ll come out in a

minute.     Erica, they’re calling you.” To the officers’ surprise, a second adult male, later

identified as Alibino Ortiz, walked out of a bedroom and into the living room. Up to that point,

the officers were under the impression that only Heriberto and Erica were in the apartment.

         As Officer Moncada proceeded toward the bathroom, he looked into the bedroom on the

west side of the residence, and saw Appellant Eduardo Valtierra and a fourth adult male sitting

on the floor next to the bed. When the two individuals saw the officer, they quickly “stuffed”

something under the bed. The officers subsequently moved Eduardo and the fourth man to the

living room without incident. Officer Rutledge subsequently conducted a limited search of the

bedroom where he found evidence of drug paraphernalia.                             Based on Officer Rutledge’s




1
   Both officers wore recording devices and two audio recordings were played for the trial court. The entire
exchange, however, was conducted in Spanish and required an interpreter to file an English translation.
Additionally, a portion of the recording is unintelligible and is the focus of a significant portion of the hearing on the
motion to suppress.

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discovery, the officers obtained a search warrant ultimately resulting in the discovery of

narcotics, drug paraphernalia, and a stolen firearm.

       The trial court denied Eduardo’s pretrial motion to suppress, and filed findings of fact

and conclusions of law. Eduardo subsequently entered a plea of guilty and this appeal followed.

                                      STANDARD OF REVIEW

       An appellate court reviews a trial court’s ruling on a motion to suppress evidence under a

bifurcated standard of review. Ford v. State, 158 S.W.3d 488, 492–93 (Tex. Crim. App. 2005).

“[B]ecause it is the trial court that observes first hand the demeanor and appearance of a

witness,” rather than an appellate court that reviews an impersonal record, “the trial court is the

sole trier of fact and judge of the credibility of the witnesses and the weight to be given [to] their

testimony.” State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000).

       “In reviewing a trial court’s ruling on a motion to suppress, an appellate court must view

the evidence in the light most favorable to the trial court’s ruling.” State v. Kelly, 204 S.W.3d

808, 818 (Tex. Crim. App. 2006). When the trial court makes explicit fact findings, as it did

here, we determine whether the evidence, viewed in the light most favorable to the trial court’s

ruling, supports those fact findings. Id. We then review “the trial court’s legal ruling de novo

unless the trial court’s supported-by-the-record explicit fact findings are also dispositive of the

legal ruling.” Id.; see also Montanez v. State, 195 S.W.3d 101, 109 (Tex. Crim. App. 2006)

(opining on why appellate courts are to apply a deferential standard of review to a trial court’s

determination of historical facts when that determination is based on evidence admitted at a

suppression hearing). We uphold the trial court’s legal ruling if it is supported by the record and

“correct on any theory of law applicable to the case,” even if the trial court gave the wrong

reason for its ruling. See State v. Stevens, 235 S.W.3d 736, 740 (Tex. Crim. App. 2007).



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                                    SEARCH OF THE RESIDENCE

       Eduardo Valtierra contends that the search of the apartment violated the Fourth

Amendment to the U.S. Constitution as well as article I, section 9 of the Texas Constitution. The

Fourth Amendment protects individuals “against unreasonable searches and seizures.” U.S.

CONST. amend. IV. “A warrantless police entry into a person’s home is presumptively

unreasonable unless it falls within the scope of one of a few well-delineated exceptions.”

Johnson v. State, 226 S.W.3d 439, 443 (Tex. Crim. App. 2007) (citing Schneckloth v.

Bustamonte, 412 U.S. 218, 219 (1973)). In the present case, we examine the scope of the

consent the officers had to enter the residence.

A. Consent to Enter the Apartment

       The trial court found that “Officer Moncada received oral consent to enter the apartment

from Heriberto Valtierra.” There is evidence in the record that Heriberto gave Officer Moncada,

who was seeking information about a possible female runaway, consent to enter the residence.

The trial court, therefore, did not abuse its discretion in denying the motion to suppress based on

the initial consent to enter the apartment.

B. Basis to Proceed Further Into Apartment and Conduct a Protective Sweep

       Consent to enter a residence does not, however, provide consent for a police officer to

proceed further into a residence or extend consent to search the residence. See LeBlanc v. State,

424 S.W.2d 434, 436 (Tex. Crim. App. 1968). Once permitted into the residence, an officer may

only take action in accordance with the purpose for which he was invited or allowed into the

residence. Cf. id.; State v. Lofgren, 47 S.W.3d 167, 169 (Tex. App.—Austin 2001, no pet.).

Courts however may “look beyond the language of the consent itself, to the overall context,

which necessarily encompasses contemporaneous police statements and actions.” United States



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v. Turner, 169 F.3d 84, 87 (1st Cir. 1993). According to the Court of Criminal Appeals, it was

objectively reasonable for Officer Moncada to conclude that Heriberto’s consent to come inside

the apartment and talk to Erica included consent to walk down the hallway to knock on the

bathroom door. “Because the record supports implied, if not explicit, consent to walk some

twenty feet to the bathroom door, . . . the officer’s actions were reasonable and within the scope

of the original consent to enter and investigate Erica’s whereabouts.” Valtierra, 310 S.W.3d at

444. Because Officer Moncada was lawfully present in the hallway when he observed the two

men in the bedroom making furtive gestures and throwing items under the bed, we turn to the

protective sweep that led to the discovery of the contraband.

       The Fourth Amendment prohibits only unreasonable searches and seizures. Maryland v.

Buie, 494 U.S. 325, 331 (1990). Reasonableness is measured in terms of a balance between the

individual’s privacy interest and the promotion of a legitimate governmental interest. Id. A

defendant’s legitimate privacy interest in his residence must be weighed against the officers’

need to protect themselves from attack. Id. at 328, 333 (authorizing police officers to protect

themselves and others at the site: “A ‘protective sweep’ is a quick and limited search of

premises, incident to an arrest and conducted to protect the safety of police officers or others.”);

Reasor v. State, 12 S.W.3d 813, 816 (Tex. Crim. App. 2000). Accordingly, the Supreme Court

has held that “[t]he Fourth Amendment permits a properly limited protective sweep in

conjunction with an in-home arrest when the searching officer possesses a reasonable belief

based on specific and articulable facts that the area to be swept harbors an individual posing a

danger to those on the arrest scene.” Buie, 494 U.S. at 337. Importantly, however, officers may

not conduct a protective sweep as a matter of right. See id. at 336. To the contrary, a protective

sweep is permitted only when “justified by a reasonable, articulable suspicion that the house is



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harboring a person posing a danger to those on the arrest scene.” Id. We must keep in mind that

the Fourth Amendment bars only unreasonable searches and seizures. Id. at 331. Even without a

warrant, a search may be permitted when a strong public interest exists for the search. Id.

       The issue in this case is whether either Officer Moncada or Officer Rutledge articulated a

reasonable belief that another individual or weapons might be in the residence that could result in

harm to the officers. See Smith v. State, No. 05-08-00139-CR, 2009 WL 332261, at *5 (Tex.

App.—Dallas Feb. 12, 2009, no pet. h.) (mem. op.). The trial court specifically found:

       9.     An individual walked out of one of the bedrooms and was instructed by
       Officer Moncada to come to the living room and sit on the couch, which the
       individual did without incident.

The trial court then concluded:

       9.      Once the officers saw unknown individuals emerging from the general
       direction of the person whom the officers thought to be the runaway they were
       looking for, the officers were entitled to move across the living room and down
       the hallway to conduct a protective sweep and a weapon search for officer safety.

We therefore examine the record to determine if the facts support the trial court’s conclusion.

       Valtierra argues that 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.

       At the hearing on the motion to suppress, and as found by the trial court, a male

individual walked out of one of the bedrooms after the officers entered the apartment. The

individual came out of the living room and sat on the couch as he was instructed. When Officer

Moncada walked down the hallway to the bathroom, from where the initial individual had exited,

he saw two more individuals in a bedroom, sitting on the ground next to a bed. According to


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Officer Moncada, 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 testified that he was unable to determine what the items

were that were thrown under the bed. It was at that point he requested 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 requested Officer Rutledge’s assistance

because he did not know what was thrown under the bed, but it “could have been a weapon.”

       After removing the two individuals from the bedroom, Officer Moncada called for Erica,

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 whom were handcuffed. 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 the bedroom, he ultimately came out and

told Officer Moncada he found drug paraphernalia in plain view.




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       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.” He admitted that

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. As he was walking, he saw a television

stand, on top of which were 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

warrant arrived and officers searched the apartment, finding narcotics, drug paraphernalia, and a

stolen firearm. See Valtierra v. State, 293 S.W.3d 697, 700 (Tex. App.—San Antonio 2009),

rev’d, 310 S.W.3d 442 (Tex. Crim. App. 2010).



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       Viewing the evidence in the light most favorable to the trial court’s denial of Valtierra’s

motion to suppress, we hold that the evidence supports the trial court’s factual findings, and hold

that 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, 310 S.W.3d at 451–52; see also United States v. Gould, 364

F.3d 578, 587 (5th Cir. 2004). 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 that 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 out-numbered.

       Accordingly, we hold the protective sweep was justified by the evidence, and the trial

court erred neither in concluding that a protective sweep was necessary for officer safety, nor in



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denying the motion to suppress based on Valtierra’s challenge to the protective sweep. Because

we hold that 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.

                                      CONCLUSION

       A reasonable person would have concluded that Heriberto’s consent was sufficient to

proceed down the hallway to talk to Erica. As he walked down the hallway, Officer Moncada

viewed through an open doorway two individuals making furtive gestures.           This evidence

provided a reasonable basis for Officer Rutledge’s entry into the bedroom to conduct a protective

sweep. Accordingly, the order of the trial court is affirmed.


                                                  Rebecca Simmons, Justice

DO NOT PUBLISH




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