               NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                      MOTION AND, IF FILED, DETERMINED

                                             IN THE DISTRICT COURT OF APPEAL

                                             OF FLORIDA

                                             SECOND DISTRICT

JOSEPH WINFRED CONYERS,                      )
                                             )
              Appellant,                     )
                                             )
v.                                           )       Case No. 2D14-751
                                             )
STATE OF FLORIDA,                            )
                                             )
              Appellee.                      )
                                             )

Opinion filed May 6, 2015.

Appeal from the Circuit Court for Pinellas
County; Thane B. Covert, Judge.

Howard L. Dimmig, II, Public Defender,
and Matthew J. Salvia, Assistant Public
Defender, Bartow, for Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Wendy Buffington,
Assistant Attorney General, Tampa, for
Appellee.


ALTENBERND, Judge.

              Joseph Winfred Conyers appeals his judgments and sentences for

possession of cocaine and possession of drug paraphernalia. He pleaded guilty to both

counts after the trial court denied his dispositive motion to suppress the drug

paraphernalia, a glass tube crack pipe. A police officer had seized the paraphernalia

during a consensual patdown search of Mr. Conyers. The issue in this case is whether
an experienced narcotics officer can establish probable cause to remove a glass tube

from a pocket during a consensual search to confirm the officer's suspicion that it is

drug paraphernalia under the plain feel doctrine. In this case, we conclude that the trial

court correctly determined that the officer had probable cause to remove the glass tube

as suspected contraband. Accordingly, we affirm the judgments and sentences.

              At approximately 11:00 p.m. on April 2, 2013, a Clearwater police officer

on patrol stopped Mr. Conyers for riding his bicycle without lights. The officer ran Mr.

Conyers' name through a dispatch operator, who relayed to the officer that although

there were no warrants for Mr. Conyers' arrest, he was listed as a "Division M"

individual. Mr. Conyers, who was standing next to the officer, heard this and became

upset. He explained to the officer that Division M is for violent offenders, which he had

never been. The officer told Mr. Conyers he was not going to issue him a citation but

asked if he could search him for weapons. Mr. Conyers politely told the officer he would

not consent to a search for weapons, although he would submit to a patdown.

              When the officer touched Mr. Conyers' right pants pocket with his open

palm, he felt a hard, cylindrical object that he "immediately recognized to be a crack

pipe." The officer retrieved the object and confirmed his suspicions that it was a crack

pipe—a cylindrical, glass tube with steel wool in one end and white residue inside. The

officer then conducted a search incident to the arrest for possession of drug

paraphernalia and found crack cocaine in a sweatband underneath Mr. Conyers' hat.

              Mr. Conyers moved to suppress the evidence, arguing that the officer did

not have probable cause to seize the crack pipe based on plain feel. He did not

challenge the legality of the patdown. The officer was the only witness at the




                                           -2-
suppression hearing. He testified to his extensive experience as a narcotics officer and

specifically to his exposure to, and training regarding, crack pipes. He testified that he

has conducted hundreds of searches and encountered numerous crack pipes identical

to the one Mr. Conyers had. Regarding the patdown of Mr. Conyers, he testified:

                      At the second I touched it I knew it was—I said
              "That's a crack pipe." I told him, I said it's a crack pipe. I've
              touched so many of them and used them as far as
              investigations and everything throughout my entire career
              that it was just unmistakable. It's a very unique item. I've
              not found any items that are the same as that throughout
              almost fifteen years of law enforcement.

The officer further explained that he can immediately recognize a glass crack pipe in

someone's pocket without manipulating it because they are all hard, cylindrical objects

that measure approximately two and a half to three inches in length and are "not quite

as big around as a ChapStick tube" but wider than a pencil.

              In its oral ruling, the trial court agreed with the State that the officer had

probable cause to seize the crack pipe based on plain feel and ultimately to arrest Mr.

Conyers for possession of drug paraphernalia. The trial court found that when the

officer conducted the lawful patdown, he felt an object, which, based on his extensive

training and experience, he immediately recognized to be a crack pipe. The trial court

further concluded that to establish probable cause justifying the seizure, it was not

necessary for the officer to see or smell the crack pipe or to know that it contained

residue because probable cause is based on a reasonable belief that an item is

contraband and does not require an officer to have actual knowledge that it is. Mr.

Conyers challenges this legal conclusion on appeal.




                                             -3-
              Under the "plain feel" doctrine, the warrantless seizure of an item is

justified by probable cause when a police officer conducts a lawful patdown and it is

"immediately apparent" to the officer that the item is a weapon or contraband.

Minnesota v. Dickerson, 508 U.S. 366, 374-77 (1993); see also Rodriguez v. State, 807

So. 2d 130 (Fla. 2d DCA 2002) (citing Doctor v. State, 596 So. 2d 442 (Fla. 1992), and

Dickerson, 508 U.S. 366). Whether a police officer has sufficient probable cause to

believe that the item is contraband depends on the totality of the circumstances at the

time of the seizure. Doctor, 596 So. 2d at 445. "Relevant to this inquiry is the officer's

specific experience with respect to the particular narcotic in question." Id. An officer's

"feeling" based on "experience" that the object he felt was contraband is inadequate to

establish probable cause. Rodriguez, 807 So. 2d at 131 (quoting Doctor, 596 So. 2d at

445). But an officer does not need to "know" that an item is contraband, "and a finding

of probable cause does not require absolute certitude." Santiago v. State, 84 So. 3d

455, 459 (Fla. 4th DCA 2012) (alteration in original omitted) (citations omitted). Rather,

probable cause exists when the totality of the circumstances would allow a reasonable

person in the officer's position "to believe that, more likely than not, a crime has been

committed." Id. (quoting League v. State, 778 So. 2d 1086, 1087 (Fla. 4th DCA 2001));

see also Bellamy v. State, 696 So. 2d 1218, 1220 (Fla. 2d DCA 1997).

              Without any extensive discussion and as an alternative holding, this court

has previously held that the plain feel of a crack pipe during a lawful patdown can

provide probable cause to arrest. State v. M.J., 685 So. 2d 1350 (Fla. 2d DCA 1996);

see also Cole v. State, 727 So. 2d 280, 281 (Fla. 2d DCA 1999) (concluding that officer

did not have probable cause to seize crack pipe based on plain feel where officer "did




                                            -4-
not testify that it was immediately apparent to him that the object in [the defendant's]

pocket was contraband"). But Mr. Conyers suggests that a closer examination would

cause this court to conclude that probable cause to seize contraband based on plain

feel requires more than an officer's immediate recognition of a crack pipe because a

crack pipe is not per se contraband.

              Mr. Conyers relies on Walker v. State, 514 So. 2d 1149, 1151 (Fla. 2d

DCA 1987), in which this court held that seeing the "stem" of a pipe in plain view did not

provide probable cause to arrest for possession of drug paraphernalia. In that case we

reasoned that "pipes are used to smoke materials other than drugs" and are therefore

"not contraband per se." Id. Because "[t]here was no testimony that the officers noticed

any odor or residue that suggested the pipe was used to smoke drugs," we concluded

that there was no probable cause to arrest for possession of drug paraphernalia. Id.;

see also M.L. v. State, 47 So. 3d 911, 913 (Fla. 3d DCA 2010) (relying on Walker and

concluding that the "mere observation of a portion of a pipe . . . cannot constitute

probable cause because it could be a tobacco pipe or other lawful object"). Similarly, in

T.W.C. v. State, 666 So. 2d 217 (Fla. 2d DCA 1995), we concluded that an officer who

felt a wooden tobacco pipe in the defendant's pocket did not have probable cause to

believe that the defendant possessed drug paraphernalia until he seized it and

discovered marijuana residue. We explained that the tobacco pipe had other, legal,

uses and was not necessarily contraband.

              These cases are distinguishable because the "pipe" that the officer seized

from Mr. Conyers is not similar to a traditional tobacco pipe. The paraphernalia in this

case is a short glass tube of a variety that, over the last thirty years, has become known




                                            -5-
as a "pipe" because it is used to heat illegal drugs. The defendant suggests no

common explanation for carrying such a glass tube in a pocket except for its role as a

drug delivery system, and this court has not discovered any alternative common

explanation. Thus, we hold that an experienced officer who identifies such a glass tube

by plain feel can conclude, based on his or her prior experience and the totality of the

circumstances at the time and place of the search, that it is more likely than not that the

hard, cylindrical object is drug paraphernalia. See § 893.145(12)(a), Fla. Stat. (2012)

(defining a glass pipe, with or without a screen, as drug paraphernalia, which is

"deemed to be contraband").

              Because case law sometimes intermingles the concept of probable cause

to arrest with probable cause to search, it is worth emphasizing that this case deals

exclusively with probable cause to search for contraband on a person. The issue is not

whether the officer could arrest Mr. Conyers for possession of paraphernalia when he

first felt the object but whether the Fourth Amendment permitted the officer to conduct a

limited search, a removal of the object from Mr. Conyers' pocket. Once the object was

removed, the officer's visual inspection either would confirm that the object was a crack

pipe and establish probable cause to arrest or it would disclose that the item was some

uncommon innocent item not justifying his further detention. It is also worth

emphasizing that under Florida's statutory definition, a crack pipe may be contraband

even if it has never been used. The definition of "drug paraphernalia" as contraband

includes objects "intended for use" and those "designed for use" in inhaling cocaine.

§ 893.145(12). In this case, the glass tube containing steel wool would be an object

designed for use in inhaling cocaine even if it contained no residue. Thus, an officer




                                           -6-
does not need probable cause to believe the glass pipe has previously been used or

contains residue before he conducts the search. Cf. People v. Bostic, 810 N.E.2d 273

(Ill. App. Ct. 2004) (involving a glass pipe that was not paraphernalia under a different

statutory definition).

               We note that we are not alone in our holding. Our research indicates that

every state that has squarely addressed this issue has reached the same conclusion.

See, e.g., Jones v. State, 515 S.E.2d 841, 844-45 (Ga. Ct. App. 1999) (rejecting

defendant's argument that "crack pipe not shown to contain cocaine residue is not

contraband [under Georgia law] and therefore not subject to . . . plain feel" and

concluding that plain feel provided probable cause justifying seizure where officer knew

immediately that glass tube he felt in defendant's pocket was a crack pipe); State v.

Willis, 728 So. 2d 493, 498-99 (La. Ct. App. 1999) (concluding that plain feel provided

probable cause justifying seizure where officer felt two cylindrical objects approximately

three to four inches long, which, based on his prior experience, he recognized as crack

pipes); State v. Krenik, 774 N.W.2d 178, 184-85 (Minn. Ct. App. 2009) (explaining that

"immediately apparent" does not mean that an officer must be certain about an object's

identity and concluding that plain feel provided probable cause justifying seizure where

officer felt "a smoking glass tube" and recognized it as contraband from prior

experience, although she admitted it "could have been something else"); Garcia v.

State, 967 S.W.2d 902, 906-07 (Tex. Ct. App. 1998) (concluding that plain feel provided

probable cause justifying seizure where officer testified that he had "probably felt one

hundred crack pipes in [his] experience, and as soon as [he] felt the [defendant's] right

front pocket," he "knew it was a crack pipe").




                                           -7-
             The trial court correctly denied Mr. Conyers' motion to suppress, and we

affirm the judgments and sentences.

             Affirmed.




SILBERMAN and SLEET, JJ., Concur.




                                         -8-
