Nichols v. State , 886 S.W.2d 324 ( 1995 )

OPINION

COHEN, Justice.

Appellant was charged with possessing less than two ounces of marijuana. After the trial judge denied his motion to suppress, appellant pled no contest for agreed punishment of deferred adjudication of guilt for a period of six months and a $200 fine. We affirm.

At 3:30 a.m. on July 18, 1993, Deputy Tunches stopped appellant for running a stop sign. Upon inspecting appellant’s driver’s license, he saw that appellant was 19 years old, below the legal drinking age. Further, Tunches smelled alcohol coming from the car, and saw in plain view an empty beer can on the back seat. Appellant was alone in the car.

Tunches also saw in plain view a metal pipe sticking up between the driver’s seat and the console. He examined the pipe, smelled marijuana on it, and saw marijuana residue in it. Tunches then arrested appellant for possession of drug paraphernalia. Tunches then opened the console and found marijuana there. The marijuana in the console was the subject of this prosecution and of the motion to suppress.

In point of error one, appellant contends the officer had no probable cause to seize the pipe because mere possession of a pipe is not illegal; thus, no contraband was seen in plain view.

The standard of review on a trial court’s ruling on a motion to suppress is whether the court clearly abused its discretion. Maddox v. State, 682 S.W.2d 563, 564 (Tex.Crim.App.1985). For the plain view exception to the warrant requirement to attach, two requirements must be met: (1) the officer must be in a proper position to view the crime or lawfully be on the premises; and (2) the fact that the officer has discovered evidence must be immediately apparent. Joseph v. State, 807 S.W.2d 303, 308 (Tex.Crim.App.1991) (citing Horton v. California, 496 U.S. 128, 140-42, 110 S.Ct. 2301, 2310, 110 L.Ed.2d 112 (1990)). This second prong does not require the officer to “know” that certain items are evidence of a crime. Id. (citing Texas v. Brown, 460 U.S. 730, 741, 103 S.Ct. 1535, 1543, 75 L.Ed.2d 502 (1983)). There must be probable cause to believe the property is associated with some criminal activity. Id. (citing Arizona v. Hicks, 480 U.S. 321, 326, 107 S.Ct. 1149, 1153, 94 L.Ed.2d 347 (1987)). An officer may rely on his training and experience to draw inferences and make deductions that might well elude an untrained person. Brown, 460 U.S. at 746, 103 S.Ct. at 1545.

A metal pipe is drug paraphernalia when it is intended for use or is used to contain, ingest, or inhale a controlled substance. TexHealth & Safety Code Ann. § 481.002(17)(L)(i) (Vernon 1992). The term “drug paraphernalia” includes by specific statutory designation “an object used ... in ... inhaling marijuana, ... including a metal ... pipe with ... a screen_” Id. A person commits the offense of possession of drug paraphernalia if the person knowingly uses or possesses with intent to use drug paraphernalia to contain a controlled substance or to inhale into the human body a controlled substance. TexHealth & Safety Code Ann. § 481.125(a) (Vernon 1992).

Deputy Tunches testified he saw an aluminum pipe with a bowl covered by metal mesh. He stated that, in his experience, this kind of pipe was normally used for smoking marijuana. Thus, the pipe met the definition of drug paraphernalia, and Tunches was entitled to seize it and arrest appellant for that offense, as well as for running a stop sign. Tex.Code Crim.PROC.Ann. art. 14.01(b) (Vernon 1989); Tex.Rev.Civ.StatAnn. art. 6701d, § 153 (Vernon 1989). Moreover, Deputy Tunches was not required to know that the pipe was contraband before seizing it; his reasonable belief that it was contraband was sufficient. Texas v. Brown, 460 U.S. 730, 740-42, 103 S.Ct. 1535, 1542-43 (1983); Joseph v. State, 807 S.W.2d 303, 308 (Tex.Crim.App.1991), Vercher v. State, 861 S.W.2d 68, 70-71 (Tex.App.—Houston [1st Dist.] 1993, pet. ref'd). Thus, the officer had probable cause to seize the pipe.

We overrule point of error one.

In point of error, two, appellant contends that the search of the console was an illegal inventory search. We disagree.

The search was justified as a valid search incident to arrest. Carter v. State, 775 S.W.2d 780, 782 (Tex.App.—Houston [1st Dist.] 1989, no pet.) (officer saw beer can in plain view in truck driven and solely occupied by an 18-year-old driver, which established probable cause to arrest for possession of alcoholic beverage by minor and justified search of vehicle). Moreover, the inventory search was reasonable. Deputy Tunches testified he conducted the search pursuant to guidelines established in his police training. This met the State’s burden of establishing standard procedures for inventory searches. Moberg v. State, 810 S.W.2d 190, 195 (Tex.Crim.App.1991). Tunches also testified that appellant was alone, was under arrest, that no one was readily available to take possession of the car, and that the car was illegally parked because appellant had stopped right next to a stop sign. An inventory search was allowed under similar circumstances in Mayberry v. State, 830 S.W.2d 176, 180 (Tex.App.—Dallas 1992, no pet.).

Point of error two is overruled.

The judgment is affirmed.