                                 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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