Warrantless search of vehicle was legal

Where officers partially corroborated an anonymous tip of suspected drug activity, and one of the officers then concluded that a glass stem pipe in plain view was contraband, the district court did not err in upholding the warrantless search of the vehicle.

Background

Ricky Runner pleaded guilty to one charge of being a felon in unlawful possession of a firearm, but reserved his right to appeal the district court’s denial of his motion to suppress evidence seized during a warrantless search of his vehicle after officers visually observed a glass stem pipe in the console of his car.

Analysis

For the plain view exception to apply, the government must show that: “(1) the officer [was] lawfully in a place from which the object [could] be plainly viewed; (2) the officer ha[d] a lawful right of access to the object itself; and (3) the object’s incriminating character [wa]s immediately apparent.” There is no question that the first two prongs are satisfied. So the sole question in this case is whether the incriminating character of the visible glass stem pipe was immediately apparent to Robert Shilling, a trained drug recognition law enforcement expert.

Runner argues that the presence of a glass pipe, which could be drug paraphernalia, in plain view alone and without more, does not give rise to a finding of probable cause. This court has not addressed that question. And this case does not directly present it.

Here, officers were called to the scene by an anonymous tip reporting intravenous drug use. One of those officers believed, based on his experience and training as a drug recognition expert, that the glass pipe in question was contraband. On its face, that evaluation meets the admittedly low standard: that the facts available warrant that items may be contraband or stolen property.

Resting on the notion that the pipe alone justified the search, Runner points to two cases in which the Sixth Circuit defined “immediately apparent,” arguing the intrinsic nature of the pipe did not provide probable cause because the pipe could be used to smoke legal hemp and CBD oil. But those cases differ on their facts, in that the evidence in question consisted of objects the courts determined to be intrinsically innocent.

The items that the Sixth Circuit found did not provide a basis for probable cause in these two decisions were everyday objects that could be put to illegal ends. A stem pipe is not such an object. Rather, as confirmed by Shilling’s experience as a drug recognition expert, the predominate purpose of stem pipes has been—and continues to be—to smoke illegal substances. Despite the increased use of glass pipes to ingest legal substances such as CBD oil, it is still reasonable that a police officer would reach the belief that a glass pipe was evidence of a crime supporting probable cause.

It is important to reiterate that cases from this circuit upholding plain view searches based on pipes and paraphernalia have involved the presence of additional evidence or indicators that contributed to a finding of probable cause. This case similarly involves something more than a mere pipe. A pipe alone would not necessarily trigger the plain view exception.

However, this case still presents a close question. In this instance, the officers were responding to an anonymous tip. Admittedly, that tip reported a method of ingesting illegal drugs different from intake via a pipe. Neither Garloch nor Runner appeared under the influence, and Garloch had no new track marks on her arms. Shilling could not tell immediately whether the glass pipe had been used or, if so, what had been smoked in it. 

Nevertheless, the anonymous tip that initiated the officers’ investigation was corroborated to the extent that they found a woman exiting a “blue Volkswagen with Ohio tags,” in an otherwise “pretty empty” Wal-Mart parking lot. That initial corroboration of the anonymous tip, alongside Shilling’s drug recognition expertise, is sufficient.

Thus, even though a glass stem pipe may be put to innocent uses — uses that continue to expand and should be taken into consideration — here, viewing the evidence in the light most favorable to the government and in its totality, the plain view exception applies, and the search of the vehicle was lawful.

Affirmed.

United States v. Runner, Case No. 21-4085, Aug. 8, 2022. 4th Cir. (Floyd), from NDWVA at Wheeling (Bailey). Robert G. McCoid for Appellant. Lynette Danae DeMasi-Lemon for Appellee. VLW 022-2-198. 12 pp.