dissenting.
I respectfully dissent.
In point of error one, appellant argues that the trial court erred in overruling his motion to suppress. He contends the officer had no probable cause to seize the pipe because ownership of a pipe is not illegal; therefore there was nothing in “plain view.”
A metal pipe is drug paraphernalia when it is intended for use or is used to ingest a controlled substance. TexHealth & Safety Code Ann. § 481.002(17)(L)(i) (Vernon 1992). A person commits the offense of possession of drug paraphernalia “if the person knowingly or intentionally uses or possesses with intent to use drug paraphernalia to ... inhale ... into the human body a controlled substance ...” TexHealth & Safety Code Ann. § 481.125(a) (Vernon 1992).
*327Appellant cites Arizona v. Hicks, 480 U.S. 321, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987), in support of Ms argument that there was no probable cause. In Hicks, officers were inside an apartment after a bullet had come through the floor and injured the occupant when one of them noticed some expensive stereo equipment wMch seemed out of place in the “squalid and otherwise ill-appointed four room apartment.” Id. at 323, 107 S.Ct. at 1151-52. Since he was suspicious that they were stolen, he moved some of the equipment in order to record the serial numbers. Id. He phoned the information in to headquarters, found that the equipment was stolen, and seized it. Id.
The Supreme Court first noted that moving the equipment was a search. Id. at 324—325, 107 S.Ct. at 1152. In discussing whether the search was reasonable, the court determined that the plain-view exception to the warrant requirement included the element of probable cause. Id. at 326, 107 S.Ct. at 1153. Therefore, the court held that the plain view doctrine did not sustain a seizure of the equipment in the ease because the officer did not have probable cause to believe the equipment was stolen before he moved it. Id. at 325-329, 107 S.Ct. at 1153-55.
Appellant argues that the analysis is the same in tMs case; Tunches did not have probable cause to believe that the pipe was unlawfully possessed. Under the statute, possession of the pipe is not illegal unless it is “used or intended for use in ingesting, inhaling, or otherwise introducing marijuana ... into the human body....” TexUealth & Safety Code Ann. § 481.002(17)(L)(i) (Vernon 1992). The majority omits this requirement. To merely possess such a pipe is not illegal. Appellant contends there was no probable cause to believe the pipe was used or to be used as drug paraphernalia until after he had seized it and examined it. I agree.
In tMs case, the officer testified that the pipe was small and made of aluminum with a bowl on one end covered by metal mesh. He stated that in his experience tMs Mnd of pipe was normally associated with smoking marijuana. TMs is not enough evidence to give the officer probable cause to believe that a legally owned pipe was “used or intended for use in ... inhaling” a controlled substance. The officer conceded that he did not see or smell marijuana before he saw the pipe. It could not be “immediately apparant” that the pipe was paraphernalia as there was no reason to believe that the pipe was used or intended to be used in an illegal manner.
In Vercher v. State, 861 S.W.2d 68, 70-71 (Tex.App.—Houston [1st Dist.] 1993, pet. ref'd), this Court held that the second prong of the plain view analysis was satisfied when an officer picked up a crack pipe from a car. In that case, appellant argued that the officer could not have distinguished the pipe from any other tool when he saw it on the floorboard at the edge of the seat, therefore, the officer did not have probable cause to believe it was contraband. Id. This Court found probable cause because of the officer’s training and experience, the fact that appellant reached down toward the floorboard before getting out of the car, the officer’s knowledge that the car pulled into the driveway of a house where drugs are sold. Id. at 71.
Vercher is distinguishable. Here, there were no furtive gestures and no testimony that the neighborhood was one where drugs were commonly found. The fact the officer’s experience told him that these types of pipes are associated with smoking marijuana did not give him probable cause to believe that a pipe, wMch appeared to be legally possessed before he picked it up to examine it, was drug paraphernalia.
I would sustain point of error one.
I would reverse the trial court’s denial of appellant’s motion to suppress.