State v. Gibson

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

TERRY MICHAEL GIBSON, Appellant.

No. 1 CA-CR 23-0091
FILED 11-16-2023

Appeal from the Superior Court in Yavapai County
No. P1300CR202000379
The Honorable Krista M. Carman, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Jana Zinman
Counsel for Appellee

Law Office of Carlos L. Estrada, Phoenix
By Carlos L. Estrada
Counsel for Appellant
 STATE v. GIBSON
Decision of the Court

MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge David D. Weinzweig and Judge Michael S. Catlett joined.

C R U Z, Judge:

¶1 Terry Michael Gibson appeals his conviction for one count of
sale or transportation of dangerous drugs and one count of possession of
paraphernalia. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL HISTORY

¶2 In January 2020, Partners Against Narcotics Trafficking
(“PANT”) detectives obtained an anticipatory search warrant to place a
GPS tracking device on a vehicle suspected of transporting narcotics. A
confidential reliable informant (“CRI”) told PANT detectives that an older
male, nicknamed “Uncle,” who drove a metallic hot-rod style truck, would
be delivering narcotics to a certain street address in Chino Valley on
January 17, 2020. Because the suspect’s identity and vehicle details were
limited, the warrant was conditioned on: PANT detectives conducting live
surveillance at the Chino Valley residence, arrival of a vehicle matching the
description, and the CRI confirming drugs were delivered to the address
during the time the described vehicle was at the address.

¶3 After obtaining the anticipatory search warrant, PANT
detectives conducted live surveillance at the Chino Valley residence. A
man fitting the description of an older male arrived driving a metallic hot-
rod style truck, and the CRI confirmed drugs were delivered to the address
upon the older male’s arrival. By searching records related to the vehicle’s
license plate number, PANT detectives identified the older male as Gibson
and determined he was the registered owner of the vehicle. PANT
detectives continued to conduct surveillance on Gibson’s vehicle after it left
Chino Valley and traveled to Phoenix. While the vehicle was parked at a
commercial lot in Phoenix, PANT detectives attached a GPS tracking device
to it. After the tracking device was installed, the PANT team amended the
warrant, to document the specific license plate and identify the subject of
the warrant by his legal name.

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 STATE v. GIBSON
Decision of the Court

¶4 Gibson moved to suppress the evidence obtained as a result
of the GPS search warrant. Gibson argued that, because it did not identify
Gibson or his vehicle, the search warrant was not supported by probable
cause. After an evidentiary hearing, the superior court denied the motion.
The superior court reasoned the search warrant was valid because all
conditions in the anticipatory search warrant were met prior to attachment
of the GPS device and the search warrant was subsequently updated with
Gibson’s identity.

¶5 After a two-day trial, a jury found Gibson guilty. Gibson
timely appealed. We have jurisdiction pursuant to Arizona Revised
Statutes sections 12-120.21(A), 13-4031, and 13-4033(A)(1).

DISCUSSION

¶6 Gibson argues the superior court erred when it denied his
motion to suppress because the search warrant was not sufficiently
particular and failed to establish probable cause.

¶7 We review the denial of a motion to suppress for an abuse of
discretion, State v. Spears, 184 Ariz. 277, 284 (1996), “but we review de novo
mixed questions of law and fact and the trial court’s ultimate legal
conclusions” as to whether a search was lawful, State v. Teagle, 217 Ariz. 17,
22, ¶ 19 (App. 2007). We consider “only the evidence presented at the
suppression hearing and [view] the facts in the light most favorable to
sustaining the ruling.” State v. Manuel, 229 Ariz. 1, 4, ¶ 11 (2011). “Where
matters are not included in the record on appeal, the missing portions of
the record will be presumed to support the action of the trial court.” State
v. Zuck, 134 Ariz. 509, 513 (1982).

¶8 The Fourth Amendment to the U.S. Constitution requires that
search warrants particularly describe the places to be searched, and the
persons or things to be seized. U.S. Const. amend. IV. Sufficient
particularity is determined by whether “the place to be searched is
described with enough particularity to enable the executing officer to locate
and identify the premises with reasonable effort, and whether there is any
reasonable probability that another premise might be mistakenly
searched.” State v. Coats, 165 Ariz. 154, 159-60 (App. 1990). Probable cause
is established when “there is a fair probability that contraband or evidence
of a crime will be found in a particular place.” Illinois v. Gates, 462 U.S. 213,
238 (1983).

¶9 The GPS search warrant is not a part of the record on appeal.
But it is undisputed that the search warrant contained neither Gibson’s

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Decision of the Court

name nor vehicle license plate number, because that information was
unknown at the time the warrant was obtained. At the evidentiary hearing,
PANT detectives testified the search warrant described an older male who
drove a metallic truck. PANT detectives also testified that all conditions
listed in the warrant were met prior to placing the GPS on Gibson’s vehicle.

¶10 Based on all the evidence presented at the evidentiary
hearing, the vehicle and Gibson were described with sufficient particularity
to allow detectives to identify the vehicle and its driver and not mistakenly
search elsewhere or seize someone else. Further, the information obtained
from the CRI and the fulfillment of the warrant’s triggering conditions
show there was a fair probability that evidence of a crime would be found
in the vehicle. Therefore, the GPS search warrant was sufficiently particular
and supported by probable cause. The superior court did not abuse its
discretion when it denied Gibson’s motion to suppress the GPS search
warrant.

CONCLUSION

¶11 We affirm.

AMY M. WOOD • Clerk of the Court
FILED: AA

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