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State v. Gilstrap

Court of Appeals of Arizona, First Division, Department B

September 19, 2013

STATE OF ARIZONA, Appellee,
v.
ALICIA LEAH GILSTRAP, Appellant

Not for Publication – Rule 111, Rules of the Arizona Supreme Court.

Appeal from the Superior Court in Mohave County Cause No. S8015CR201000770 The Honorable Derek C. Carlise, Judge Pro Tem.

Thomas C. Horne, Attorney General Phoenix by Joseph T. Maziarz, Chief Counsel Criminal Appeals/Capital Litigation Section and Alice Jones, Assistant Attorney General Attorneys for Appellee.

Jill L. Evans, Mohave County Appellate Defender Kingman Attorney for Appellant.

MEMORANDUM DECISION

THUMMA, Judge.

¶1 Alicia Leah Gilstrap appeals her convictions for possession of dangerous drugs for sale, possession of marijuana and two counts of possession of drug paraphernalia and resulting sentences. Gilstrap argues the superior court erred by denying her motion to suppress evidence seized during a search; failing to find prosecutorial misconduct and denying her motion to preclude evidence as not timely disclosed. Finding no error, Gilstrap's convictions and sentences are affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 When executing a warrant to search a house in Mohave County for methamphetamine and related paraphernalia, law enforcement officers found Gilstrap taking a shower in a bathroom connected to a bedroom. The search warrant did not identify Gilstrap and she did not own the house. An officer found and searched a purse in the house, later identified as Gilstrap's purse. The search of that purse revealed Gilstrap's identification as well as 3.5 grams of methamphetamine; 6.12 grams of marijuana; plastic baggies containing drug residue; new plastic baggies and a scale commonly used by sellers of drugs; a glass pipe containing drug residue and what appeared to be a ledger identifying drug sales.

¶3 The State charged Gilstrap with, and a jury convicted her of, possession of methamphetamine for sale, possession of marijuana and two counts of possession of drug paraphernalia. The superior court sentenced Gilstrap to presumptive, concurrent prison terms, the longest of which was for 15.75 years in prison. From Gilstrap's timely appeal, this court has jurisdiction pursuant to Arizona Constitution, Article 6, Section 9, and Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(2013), 13-4031 and 13-4033.[1]

DISCUSSION

I. Denial Of The Motion To Suppress.

¶4 Gilstrap first argues the superior court erred in denying her motion to suppress evidence seized from her purse. Gilstrap argues law enforcement officers could not lawfully search her purse because she was only on the premises "incidentally" and was not named in the warrant. A superior court's ruling on a motion to suppress will not be disturbed "absent clear and manifest error." State v. Hyde, 186 Ariz. 252, 265, 921 P.2d 655, 668 (1996) . The legal question of whether the search violated Gilstrap's constitutional rights, however, is reviewed de novo. State v. Adams, 197 Ariz. 569, 572, 16, 5 P.3d 903, 906 (App. 2000).

A. Background[2]

¶5 Law enforcement officers obtained a warrant to search a house for methamphetamine and related paraphernalia. During the search, officers found Gilstrap taking a shower. Although not named in the warrant and not an owner of the residence, Gilstrap had spent the previous night at the house. Gilstrap testified she "was staying there at the time, helping them out, " had full access to all of the house and planned to pay rent for staying in the house when she could.

¶6 There was conflicting testimony about the location of the purse when law enforcement officers arrived at the house. Gilstrap testified her purse was in the bathroom while she was taking a shower and that police moved her purse to an adjacent bedroom. An officer who entered the bathroom and found Gilstrap in the shower testified he did not recall seeing the purse in the bathroom, but acknowledged someone could have moved the purse. He did, however, see the purse in the adjacent bedroom and felt "certain" it was not in the bathroom when he found Gilstrap in the shower.

¶7 A different officer, who searched the purse, testified he found the purse in the bedroom on the floor by the bed and did not know whether it had been moved. He searched the purse because, in his experience, items identified in the search warrant could be found in a purse. The superior court found the testimony of the officers more credible, found the purse was in the bedroom, found the search was valid and denied Gilstrap's motion to suppress.

B. Discussion

¶8 A lawful search pursuant to a search warrant generally extends to the entire area in which the object of the search may be found and includes all containers in the area that could contain the object of the search. United States v. Ross, 456 U.S. 798, 820-21 (1982). "[S]pecial concerns, " however, "arise when the items to be searched belong to visitors, and not occupants, of the premises." United States v. Giwa, 831 F.2d 538, 544 (5th Cir. 1987) . "Such searches may become personal ...


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