Valtierra v. State

• Decision Date: 05 May 2010
• Docket Number: PD-0907-09,PD-0908-09,PD-0909-09.,No. PD-0906-09,PD-0906-09
• Citation: 310 SW 3d 442
• Parties: Eduardo VALTIERRA & Heriberto Valtierra, Appellants, v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

310 SW 3d 442

Eduardo VALTIERRA & Heriberto Valtierra, Appellants, v.The STATE of Texas.

Nos. PD-0906-09, PD-0907-09, PD-0908-09, PD-0909-09.

Court of Criminal Appeals of Texas.

May 5, 2010.

M. Patrick Maguire, Kerrville, for Appellant.

E. Bruce Curry, D.A., Kerrville, Jeffrey L. VanHorn, State's Atty., Austin, for State.

OPINION

COCHRAN, J., delivered the opinion of the unanimous Court.

This appeal concerns the scope of a consent to search under the Fourth Amendment.Both the trial court and the court of appeals agreed that Heriberto Valtierra consented to have police officers enter his apartment to talk to Erica, a 13-year-old runaway.The question before us is whether, viewed in the light most favorable to the trial court's ruling, the evidence is sufficient to show that the scope of 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.The trial court upheld the officer's actions, but on the basis of a "protective sweep" or "exigent circumstances."The Fourth Court of Appeals found that the officer did not have consent to walk down the hallway, nor were there exigent circumstances warranting a protective sweep.¹Because the record supports implied, if not explicit, consent to walk some twenty feet to the bathroom door, we conclude that the officer's actions were reasonable and within the scope of the original consent to enter and investigate Erica's whereabouts.We therefore reverse the court of appeals's judgment and remand these cases for further proceedings.

I.

Appellants, brothers Eduardo and Heriberto Valtierra, were each charged with possession of methamphetamine and cocaine.They filed a motion to suppress, and the trial judge conducted a hearing, at which the following evidence was offered.

Boerne Police Officers Moncada and Rutledge received information about a possible female runaway at an apartment on South Plant Street in Boerne.Officer Moncada recognized the address because he had been sent there the week before on a domestic violence call and had spoken to a man and a young girl named Erica.The two officers went to the apartment and knocked on the door.

Heriberto Valtierra answered the door, and he and Officer Moncada talked in Spanish.Officer Moncada's body microphone recorded the exchange, although several portions of the recording are inaudible.According to the transcript of the recording, Moncada asked if he could come in, and Heriberto said, "Of course, but I was just heating tortillas."Both officers came into the apartment, and Moncada told him their purpose: "It's because we are looking for Erica.Where's Erica."Heriberto replied, "Over there.She's over there, inside," and he waved toward the bathroom.²Heriberto yelled out to her, "Erica, they're calling you."Moncada then asked if he could talk to her, and Heriberto said, "Yes, she'll come out in a minute."

At this point, a second man came out of a bedroom and walked into the living room where Officers Moncada and Rutledge were talking to Heriberto.The officers were surprised because they had thought that only Heriberto and Erica were in the apartment.That man said, "Let me close the door," but was told to sit on the couch.Moncada asked the second man where Erica was, and he also said, "She's inside, in the bathroom."While they were waiting, Moncada asked Heriberto how he knew Erica, and Heriberto said that she was his niece.Moncada expressed skepticism and said, "I am, I am thinking Erica is not, did not give me her real name.And you know it."

At this point, portions of the recording became inaudible.At the suppression hearing, Moncada testified that, when the girl did not come out of the bathroom, he asked Heriberto again where she was.Heriberto told him that Erica was taking a shower.Moncada was suspicious because he didn't hear running water, so he asked Heriberto if he could go talk with her.Moncada testified that Heriberto said, "Yes," and, as he began walking toward the bathroom—a distance of approximately 20 feet, he saw two more men inside another bedroom.Moncada testified that when the men saw him, they immediately threw or "stuffed" something under the bed.Moncada called to Rutledge, and the two officers moved the men out of the bedroom and into the living room.One of those men was Eduardo Valtierra.

Moncada knocked several times on the bathroom door, and Erica finally came out.Meanwhile, Officer Rutledge conducted a protective sweep of the bedroom.Rutledge testified that, after noticing drug paraphernalia in plain view during the protective sweep, he called a sergeant. When Eduardo, the lessee of the apartment, declined to sign a consent-to-search form, Officers Moncada and Rutledge contacted an investigator to apply for a search warrant.When the warrant arrived, the officers found cocaine, methamphetamine, a stolen weapon, cash, and various drug paraphernalia.

Heriberto's testimony differed from Officer Moncada's in two respects.³First, Heriberto testified that Officer Moncada himself opened the front door and was already inside the apartment when he asked for permission to come in.⁴Second, Heriberto testified that Moncada did not specifically ask him if he could go down the hall, but asked him, "Can I go over there?"Heriberto "did not answer because he was warming up the tortillas."According to Heriberto, Moncada "just kept on talking to me and kept on walking towards the inside."

The trial judge denied the motion to suppress and made written findings of facts and conclusions of law supporting the officers' version of the events.Presumably as a result of his concern over the inaudible portions of the recording, the judge avoided the issue of consent to walk down the hall⁵ and denied appellants' motion on an alternative basis: the officers legally discovered the contraband during a protective sweep.⁶After their motion to suppress was denied, Eduardo and Heriberto pled guilty to both possession of methamphetamine and possession of cocaine with intent to deliver.Both appealed the trial judge's suppression ruling.

The Fourth Court of Appeals reversed appellants' convictions, finding that the officers had consent to enter the apartment, but that the record did not support consent to go down the hallway.⁷In Heriberto's case, the court of appeals declined to grant deference to any implied factual finding that Moncada had permission to proceed down the hallway.Citing this Court's opinion in Carmouche v. State,⁸ it reasoned that the tape recording did not support such a finding.⁹In both cases, the court of appeals further found that neither a protective sweep nor exigent circumstances supported Officer Moncada's action, because the protective sweep was not conducted until after he had already walked down the hallway and seen the two men making furtive gestures.¹⁰We granted review on four separate grounds, but we need address only the first two.¹¹Therefore, we dismiss grounds three and four.

II.

A.Standard of Review

We review a trial court's ruling on a motion to suppress under a bifurcated standard of review.¹²First, we afford almost total deference to a trial judge's determination of historical facts.¹³The trial judge is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony.¹⁴He is entitled to believe or disbelieve all or part of the witness's testimony—even if that testimony is uncontroverted—because he has the opportunity to observe the witness's demeanor and appearance.¹⁵

If the trial judge makes express findings of fact, we view the evidence in the light most favorable to his ruling and determine whether the evidence supports these factual findings.¹⁶When findings of fact are not entered, we"must view the evidence `in the light most favorable to the trial court's ruling' and `assume the trial court made implicit findings of fact that support its ruling as long as those findings are supported by the record.'"¹⁷

Second, we review a trial court's application of the law of search and seizure to the facts de novo.¹⁸We will sustain the trial court's ruling if that ruling is "reasonably supported by the record and is correct on any theory of law applicable to the case."¹⁹

B.The Scope of Consent Under the Fourth Amendment

The Fourth Amendment protects individuals against unreasonable searches and seizures.²⁰"The touchstone of the Fourth Amendment is reasonableness."²¹We presume that a warrantless police entry into a person's home is unreasonable unless the entry falls within an exception to the warrant requirement.²²Voluntary consent is one such exception.²³Although consent must be positive, it may be given orally or by action, or shown by circumstantial evidence.²⁴The validity of an alleged consent to search is a question of fact to be determined from the totality of the circumstances.²⁵Under Texas law, the State must prove voluntary consent by clear and convincing evidence.²⁶

The entry into a residence by police officers is a "search" for purposes of the Fourth Amendment, but an owner's or occupant's voluntary consent makes that entry constitutionally "reasonable."²⁷Consent to enter a residence does not, without more, provide consent for a police officer to search the entire residence or objects therein.²⁸As the court of appeals aptly noted, "Once permitted into a residence, a police officer may take action only in accordance with the purpose for which he was invited or allowed into the residence."²⁹The Supreme Court has explained, and we have held, that "the standard for measuring the scope of consent under the Fourth Amendment is that of `objective' reasonableness—what would the typical reasonable person have understood by the exchange between the officer and the suspect?"³⁰Of course, a person is free to limit the scope of the consent that he gives,³¹ but a person's silence in the...