                                  IN THE

    SUPREME COURT OF THE STATE OF ARIZONA
                            STATE OF ARIZONA,
                                Appellee,

                                     v.

                          ALICIA LEAH GILSTRAP,
                                 Appellant.

                            No. CR-13-0379-PR
                           Filed August 20, 2014

            Appeal from the Superior Court in Mohave County
           The Honorable Derek C. Carlisle, Judge Pro Tempore
                           No. CR201000770
                              AFFIRMED

             Memorandum Decision of the Court of Appeals,
                          Division One
                        1 CA-CR 12-0448
                           VACATED

COUNSEL:

Thomas C. Horne, Arizona Attorney General, Robert L. Ellman, Solicitor
General, Joseph T. Maziarz, Section Chief Counsel, Criminal Appeals
Section, Alice Jones (argued), Assistant Attorney General, Phoenix, for State
of Arizona

Barbara Cook-Hamp, Legal Advocate Attorney, Jill L. Evans (argued),
Deputy Legal Advocate Attorney, Kingman, for Alicia Leah Gilstrap


JUSTICE BRUTINEL authored the opinion of the Court, in which CHIEF
JUSTICE BALES, VICE CHIEF JUSTICE PELANDER, JUSTICE BERCH, and
JUSTICE TIMMER joined.

JUSTICE BRUTINEL, opinion of the Court:




                                     1
                               STATE V. GILSTRAP
                               Opinion of the Court

¶1           We are asked to decide whether a warrant authorizing the
search of a home also authorizes police to search a purse found there but
belonging to a person not named in the warrant. Under the facts of this
case, we conclude that it does.

                          I.       BACKGROUND

¶2            Police obtained a warrant to search a Kingman residence for
drugs and drug paraphernalia. The warrant also identified two individuals
believed to be present. While executing the warrant, police found Alicia
Leah Gilstrap, who was not named in the warrant, taking a shower. They
escorted Gilstrap to another room. An officer removed a purse from the
bathroom and placed it in an adjoining bedroom.

¶3           While searching that bedroom, another officer searched the
purse. Inside it he found Gilstrap’s driver’s license, baggies containing
marijuana, methamphetamine and methamphetamine residue, packages of
red and blue baggies, and a scale. Gilstrap was charged with possession of
methamphetamine for sale, possession of marijuana, and possession of
drug paraphernalia.

¶4            Before trial, Gilstrap moved to suppress the evidence found
in her purse, arguing that “law enforcement officers could not lawfully
search her purse because she was only on the premises ‘incidentally’ and
was not named in the warrant.” Acknowledging a split of authority “on
how to handle the property of a person who is on the premises to be
searched but not named in the warrant,” the trial court referred to a
possession test and a relationship test. The court explained that neither test
had been adopted in Arizona, but determined that “under either test, police
were permitted to search the purse.” The court of appeals affirmed,
applying the same reasoning. State v. Gilstrap, 1 CA-CR 12-0448, at *1, *3,
¶¶ 4, 11 (Ariz. App. Sept. 19, 2013) (mem. decision).

¶5             We granted review to identify the test for Arizona, a legal
issue of statewide importance. We have jurisdiction under Article 6, Section
5(3) of the Arizona Constitution and A.R.S. § 12-120.24.

                           II.       DISCUSSION



                                        2
                            STATE V. GILSTRAP
                            Opinion of the Court

¶6           We review for abuse of discretion the trial court's factual
findings on the motion to suppress, but review de novo the trial court's
ultimate legal determination that the search complied with the Fourth
Amendment. State v. Davolt, 207 Ariz. 191, 202 ¶ 21, 84 P.3d 456, 467 (2004).

¶7             The Fourth Amendment guarantees that persons shall be free
from unreasonable searches and seizures. U.S. Const. amend. IV. Search
warrants must “particularly describ[e] the place to be searched, and the
persons or things to be seized.” Id. The Supreme Court has explained that
a valid search warrant authorizes the search of any container found on the
premises that might contain the object of the search. United States v. Ross,
456 U.S. 798, 820 (1982). Notwithstanding this general principle, a premises
warrant does not authorize the search of a person who is not named therein.
See Ybarra v. Illinois, 444 U.S. 85, 92–93 (1979).

¶8             “[S]pecial concerns arise when the items to be searched
belong to visitors, and not occupants, of the premises” because these
“searches may become personal searches outside the scope of the premises
search warrant.” United States v. Giwa, 831 F.2d 538, 544 (5th Cir. 1987).
That is, the search may be subject to Ybarra’s rule that police cannot search
the “person” of individuals found on the premises who are not named in
the warrant. 444 U.S. at 92–93. Courts determining whether a premises
search warrant permits the search of a visitor’s belongings have usually
adopted one of three approaches: the possession test, the relationship test,
or the actual-notice test.

¶9            Under the possession test, officers may search personal items,
such as purses or clothing, that are not in their owners’ possession when
police find them in executing a premises search warrant. This test was first
applied in United States v. Teller, 397 F.2d 494 (7th Cir. 1968), which involved
a premises warrant that did not name the defendant. Id. at 496. While
officers were executing the warrant, the defendant came home, entered her
bedroom, and left her purse on the bed. Id. Officers searched her purse and
found drugs. Id. The court upheld the search of the purse, reasoning that
once the defendant put the purse on the bed, it was no longer “an extension
of her person.” Id. at 497. Under the possession test, the search of a personal
item like a purse is not regarded as a search of the person when the item is
not in the person’s possession. See id. at 497–98.



                                       3
                             STATE V. GILSTRAP
                             Opinion of the Court

¶10            Several jurisdictions have adopted the possession test. See
United States v. Branch, 545 F.2d 177, 181–82 (D.C. Cir. 1976) (search of a
shoulder bag that was being worn was improper); United States v. Johnson,
475 F.2d 977, 979 (D.C. Cir. 1973) (search of purse resting separately from
its owner, was not “worn” and therefore the search was proper); State v.
Reid, 77 P.3d 1134, 1143 (Or. Ct. App. 2003) (search of defendant’s jacket that
was near him, but not in his possession was proper); State v. Jackson, 873
P.2d 1166, 1169 (Utah Ct. App. 1994) (search of purse not in possession of
visitor was proper).

¶11             Other jurisdictions have rejected the possession test, finding
that it “suffers from being at once too broad and too narrow.” United States
v. Micheli, 487 F.2d 429, 431 (1st Cir. 1973). The court in Micheli chose instead
“to examine the relationship between the person and the place.” Id. The
court concluded that a search warrant for an office authorized the search of
a briefcase belonging to the business’s co-owner because the defendant
“was not in the position of a mere visitor or passerby who suddenly found
his belongings vulnerable to a search of the premises.” Id. at 432. Rather,
because “[h]e had a special relation to the place” the determination of
probable cause supporting the issuance of the warrant included personal
articles, like a briefcase, that might also be found inside the office. Id.

¶12            The relationship test has also found support in other cases.
See United States v. Young, 909 F.2d 442 (11th Cir. 1990) (concluding that the
relationship test was “more reasonable” than the possession test and
holding that officers acted within scope of a premises warrant by searching
purse of a person who lived at the premises but fled as officers arrived);
United States v. McLaughlin, 851 F.2d 283 (9th Cir. 1988) (finding that the co-
owner of business searched with valid warrant had a sufficient relationship
to the premises to allow police to search briefcase); Giwa, 831 F.2d at 545
(concluding that the search of defendant’s bag was appropriate because he
was sleeping at the residence when police knocked and he opened the door
clad in a bathrobe and slacks, factors tending to show he was more “than
just a temporary presence in the apartment”).

¶13            A few jurisdictions have adopted a third approach, the actual-
notice test. See State v. Nabarro, 525 P.2d 573 (Haw. 1974). This test derives
from the relationship test, but instead of focusing on the relationship
between the visitor and the premises, it focuses on the notice given to police
regarding an item’s ownership before it is searched. Id. at 576–77. This test

                                       4
                            STATE V. GILSTRAP
                            Opinion of the Court

allows police to search an item that may contain the object of a premises
warrant unless they are put on notice that the item belongs to a non-
resident. Id. at 577.

¶14           This test has also found support in several jurisdictions. See
Waters v. State, 924 P.2d 437, 439 (Alaska Ct. App. 1996) (finding search of
defendant’s coin purse proper because no “circumstances provid[ed] clear
notice that the purse actually belonged to [defendant]”); People v.
McCabe, 192 Cal. Rptr. 635, 637 (Cal. Ct. App. 1983) (finding search of purse
was proper because police had no facts that “would have put them on
notice that the purse belonged to a non-resident”); State v. Lambert, 710
P.2d 693, 697–98 (Kan. 1985) (finding search of purse improper because
officers had no reason to believe that the purse belonged to the person
named in the warrant); State v. Thomas, 818 S.W.2d 350, 360 (Tenn. Crim.
App. 1991) (finding search improper because officers “knew or should have
known” that the purse belonged to a non-resident).

¶15            After considering each test, we conclude that the possession
test provides the best approach. It aligns with the Supreme Court’s
decisions in Ybarra and Wyoming v. Houghton, 526 U.S. 295 (1999). Ybarra
limits the principle that a premises warrant authorizes police to search any
item that might contain the object of the search by holding that the warrant
does not authorize the search of a person it does not name. 444 U.S. at 92–
93. This reflects that searches of a person involve a higher degree of
intrusiveness and require justification in addition to that provided by the
probable cause that supports a premises warrant. Even though the search
of certain personal items, such as a purse, can in some circumstances
amount to the search of a person, Houghton recognizes that they are not such
a search when the item is not in the owner’s actual possession. Houghton,
526 U.S. at 305–06. Although Houghton is not dispositive because it
concerned a vehicle search, “the thrust and tone of the Court's analysis
leaves little doubt that, if faced with the question, the Court would endorse
a ‘physical possession’ test for searches of premises.” Reid, 77 P.3d at 1141.

¶16            Additionally, the possession test’s simplicity, precision, and
the guidance it offers to police and courts make it superior to the
relationship and actual-notice tests. See Micheli, 487 F.2d at 431 (1st Cir.
1973) (noting that “[The possession test] has the virtue of precision”); State
v. Leiper, 761 A.2d 458, 462 (N.H. 2000) (finding that the possession test
minimizes “the potential for fraud and gamesmanship during the execution

                                      5
                            STATE V. GILSTRAP
                            Opinion of the Court

of search warrants when parties not named in the warrant are present at
the location of a search”); Reid, 77 P.3d at 1140 (observing that courts that
have adopted the possession test “have emphasized its simplicity and
clarity”). Searches often occur in harried, dangerous circumstances and
officers may not be readily able to identify the relationships between
persons and the premises or to assess whether items might belong to
someone not named in the warrant.

¶17           The relationship and actual-notice tests are more difficult for
police to navigate and for courts to administer. See Leiper, 761 A.2d at 462
(concluding that “the relationship/notice test is so nebulous it provides
little guidance to police officers or trial courts”); Commonwealth v. Reese, 549
A.2d 909, 911 (Pa. 1988) (explaining that the relationship test would make
it “impossible for police to effectively search a premises where visitors are
present because they would not know which items, clothing and containers
could be searched and which could not be searched”); Jackson, 873 P.2d at
1168 (explaining that the relationship test would require officers “to
ascertain the ownership of each item or container in the premises . . . [then]
determine whether the owner of the item or container was merely a
‘transient visitor’ or whether there was some greater connection to the
premises”).

¶18           Gilstrap argues that she constructively possessed the purse in
the bathroom even though she did not physically possess it. She relies on
the California Court of Appeals’ decision in Reyes, which concluded that
clothing removed by a defendant and placed nearby while he showered was
“an extension of [his] person rather than simply an article of personal
property on the premises.” 273 Cal. Rptr. 61, 65 (Cal. Ct. App. 1990).

¶19           We find Reyes unpersuasive and decline to follow it. The
possession test provides a bright-line rule that is clearly and easily applied.
Adding a “constructive” element to the possession test would thwart this
goal by requiring law enforcement officers to guess whether items in
proximity to a person not identified in the warrant would soon be used by
that person. Indeed, Gilstrap identifies no other case adopting Reyes.
Compare Johnson, 475 F.2d at 979 (finding warrant authorized search of
purse on coffee table beside the couch where the defendant was sitting),
Reid, 77 P.3d at 1143 (finding warrant authorized the search of defendant’s
jacket that was not in his “actual physical possession”), and Jackson, 873 P.2d
at 1169 (finding warrant authorized search of a purse “not in defendant’s

                                       6
                           STATE V. GILSTRAP
                           Opinion of the Court

physical possession when it was searched”), with Reyes, 273 Cal. Rptr. at 65
(finding a warrant did not authorize the search of clothing placed in the
bathroom while defendant was showering because it was “an extension of
defendant’s person”).

¶20          Applying the possession test here, we hold that because
Gilstrap did not physically possess her purse when the officers found it,
they were authorized to search it for the items listed in the warrant.

                          III.   CONCLUSION

¶21           We vacate the court of appeals’ decision, affirm the trial
court’s denial of Gilstrap’s motion to suppress, and affirm her convictions
and sentences.




                                     7
