USCA4 Appeal: 21-4085 Doc: 43 Filed: 08/08/2022 Pg: 1 of 12

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 21-4085

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

RICKY D. RUNNER,

Defendant - Appellant.

Appeal from the United States District Court for the Northern District of West Virginia, at Wheeling. John Preston Bailey, District Judge. (5:19-cr-00024-JPB-JPM-1)

Argued: May 5, 2022 Decided: August 8, 2022

Before WILKINSON and AGEE, Circuit Judges, and FLOYD, Senior Circuit Judge.

Affirmed by published opinion. Senior Judge Floyd wrote the opinion in which Judge Wilkinson and Judge Agee joined.

ARGUED: Robert G. McCoid, MCCOID LAW OFFICES, P.L.L.C., Wheeling, West Virginia, for Appellant. Lynette Danae DeMasi-Lemon, OFFICE OF THE UNITED STATES ATTORNEY, Wheeling, West Virginia, for Appellee. ON BRIEF: Randolph J. Bernard, Acting United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Wheeling, West Virginia, for Appellee. USCA4 Appeal: 21-4085 Doc: 43 Filed: 08/08/2022 Pg: 2 of 12

FLOYD, Senior Circuit Judge:

Appellant Ricky Runner pleaded guilty to one charge of being a felon in unlawful

possession of a firearm, in violation of

(g)(1) and 924(a)(2), 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. Runner now makes that appeal, arguing the stem pipe was

insufficient to trigger the plain view exception to the Fourth Amendment’s protection from

unreasonable searches. Finding neither clear factual error nor an error of law in the district

court’s reasoning, we affirm.

I.

A.

On October 11, 2018, in Moundsville, West Virginia, city police officer Zachary

Mucheck responded to an anonymous tip received at approximately 1:45 a.m. The tipster

reported that a woman was “shooting up,” J.A. 21, in a “blue Volkswagen with Ohio tags”

parked in a Wal-Mart parking lot, J.A. 29. Upon arrival, Officer Mucheck observed a

woman exiting the passenger’s side of a blue Volkswagen with Ohio tags in what he

described as a “pretty empty” parking lot. J.A. 22. He stopped and confronted her,

notifying her of the received tip. The woman, identified as Stacy Garloch, adamantly

denied having injected narcotics. She was not evasive and answered Mucheck’s questions

in a straightforward and logical manner. She exhibited no symptoms of impairment, i.e.,

slurred speech, disorientation, or difficulty standing. Garloch offered to show Mucheck

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her arms. He observed no fresh track marks.

Shortly after Mucheck initiated this encounter, Officer Robert Shilling, a trained

drug recognition expert, arrived on the scene. He conducted his own investigation of

Garloch’s arms, identifying scars from prior intravenous drug use but noting no evidence

of fresh use. Garloch explained that she had been applying makeup in the car, and Mucheck

noted that Garloch was indeed wearing makeup. She reiterated that she no longer used

drugs and offered to allow the officers to check her feet for signs of recent injection as well.

She granted the officers’ request to search her purse. They found no contraband.

Mucheck conducted an initial visual inspection of the interior of the car through its

windows. He spotted several make-up bags in the passenger side door but nothing

suggesting illegal activity. Although Mucheck acknowledged that the information

provided by the anonymous caller was not fully corroborated in so much as the officers did

not find evidence of someone “shooting up,” he nevertheless asked for permission to search

the vehicle. J.A. 31–35. Garloch declined the request, stating that since it was not her

vehicle, she did not believe that she had authority to consent to the search. She advised the

officers that the driver, Ricky Runner, was in the store.

The officers conferred, and Mucheck proposed that they “might as well wait for

homeboy to come out [of Wal-Mart] and try to get consent.” J.A. Clip 1 at 0:07:15. Before

Runner had emerged from the store, however, Shilling conducted his own visual inspection

of the vehicle’s interior and identified a glass stem pipe in the center console of the vehicle.

According to Shilling’s testimony, he believed the pipe had a “frosted tint” to it, indicating

prior use. J.A. 70. But he could not discern with certainty, from his inspection outside the

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vehicle, whether the pipe had ever been used or, if used, what substance had been used in

it.

After obtaining a physical description of Runner from Garloch, Mucheck entered

Wal-Mart. As he entered, he disabled his body camera, as he claimed, to conserve the

battery. According to Mucheck’s testimony, once he identified Runner, he insisted Runner

come outside with him. Runner did not exhibit any signs of impairment. Mucheck

acknowledged that, at that point, Runner was not free to leave and that his Fourth

Amendment rights were triggered. By the time Runner and Mucheck exited the store, more

law enforcement officers had arrived.

Shilling asked Runner for permission to search the vehicle, but Runner declined.

Mucheck and Shilling then advised Runner that they did not need his permission to search

because the pipe furnished them with probable cause. Thus advised, Runner unlocked the

car. The resulting search of the car’s interior, which began at 2:14 a.m., yielded marijuana,

as well as suspected crystal methamphetamine and Xanax pills in Garloch’s make-up bag.

Neither Runner nor Garloch had active, valid driver’s licenses.

During a safety pat-down, Mucheck asked Runner if there were any firearms in the

car. Runner indicated he did not know but acknowledged it was possible because his

cousin, the owner of the vehicle, owned firearms. He also advised officers that he was a

convicted felon and could not “be around” any firearms. J.A. 25. Searching the trunk,

officers found ammunition, a magazine with ammunition, and a Hi-Point .40 caliber

firearm, as well as additional crystal methamphetamine and a needle. Garloch and Runner

were both arrested.

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B.

On June 4, 2019, a grand jury returned a one-count indictment against Runner,

charging him with being a felon in unlawful possession of a firearm, in violation of

(g)(1) and 924(a)(2).

On August 20, 2020, Runner filed a motion to suppress the evidence seized during

the vehicle search, arguing that the officers lacked probable cause for the plain view search

because the incriminating character of the stem pipe was not immediately apparent. A

magistrate judge held an evidentiary hearing on September 11, 2020, during which

Mucheck and Shilling testified, recounting their investigation and rationale for the search.

Mucheck identified the pipe as drug paraphernalia and stated that the search of the vehicle

was entirely predicated on the presence of the pipe. Shilling also characterized the pipe as

drug paraphernalia used to “either smoke like crystal meth, crack cocaine, stuff like that.”

J.A. 66. Both officers were questioned about their knowledge regarding the use of pipes

to smoke legal hemp and cannabidiol (CBD) oil. Mucheck noted that pipes are used to

smoke both legal hemp and illegal narcotics. Shilling agreed that individuals smoke legal

hemp but stated he was not aware of anyone doing so in a stem pipe.

Also during the hearing, William Schmitt—the owner of a shop selling CBD

products, pipes, and other related items—testified as a witness for Runner. Schmitt

identified himself as an activist in the area of promoting the use of legal hemp and CBD

products as an effective means to treat pain and other health issues. He testified that the

use of CBD products has expanded rapidly, recently becoming “quite a big thing.” J.A.

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81. Although he acknowledged that the most traditional way to ingest CBD oil is by oral

drops, he stated that stem pipes, which his store sells, are used by some to smoke hemp and

CBD oils.

The government filed supplemental briefing on September 17, 2020, to more fully

address the issue of whether drug paraphernalia is sufficient for probable cause. On

September 18, 2020, Runner filed supplemental briefing to argue that glass pipes no longer

signal unlawful contraband because of their expanded commercial use for smoking hemp

or CBD oil.

On September 28, 2020, the magistrate judge issued his report and recommendation

(R&R), advising that the motion to suppress be denied. The judge found, given the

circumstances surrounding the search and Shilling’s specialized drug detection training,

that it was reasonable for the officers to “believe that the pipe in the console of Defendant’s

vehicle was used to smoke illegal substances, and therefore, the criminal nature of the pipe

was immediately apparent.” United States v. Runner, No. 5:19CR24,

,

at *8 (N.D.W. Va. Sept. 28, 2020), adopted, No. 5:19-CR-24,

(N.D.W.

Va. Oct. 27, 2020). The magistrate judge believed that the officers’ conclusions were not

vitiated “simply because pipes of this nature can and apparently have been used more

recently to smoke legal substances . . . .”

. Runner filed objections to the magistrate

judge’s R&R on October 13, 2020.

On October 27, 2020, the district court entered its opinion and order adopting the

R&R, overruling Runner’s objections, and denying the motion to suppress. The district

court upheld the plain view search because “both officers were lawfully in a place from

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which the glass pipe was plainly viewed.” Runner,

, at *2. It further

held that the officers had probable cause to believe the glass pipe constituted contraband

or evidence of a crime because it was “immediately apparent” the stem pipe could facilitate

“criminal activity.”

Following the district court’s denial of his motion to suppress, Runner entered into

a plea agreement on November 2, 2020, reserving his right to appeal the denial of his

motion to suppress. On February 24, 2021, Runner was sentenced to 51 months’

incarceration and 3 years’ supervised release. This timely appeal of the denied motion to

suppress followed.

II.

When examining the denial of a motion to suppress, this Court “reviews the district

court’s legal determinations de novo and its factual conclusions for clear error.” United

States v. Shrader,

(4th Cir. 2012) (citation omitted). In conducting this

review, the Court evaluates the evidence “in the light most favorable to the government.”

United States v. Green,

(4th Cir. 2010) (citations omitted).

The Fourth Amendment’s protection against unreasonable searches is not

implicated when the plain view doctrine applies. This Court has held that “[v]iewing an

article that is already in plain view does not involve an invasion of privacy and,

consequently, does not constitute a search implicating the Fourth Amendment . . . .” United

States v. Jackson,

(4th Cir. 1997). However, “[n]ot everything in

plain view . . . may be seized—only those items that are perceived to be contraband, stolen

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property, or incriminating in character.”

So 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.”

(citations omitted). There is no

question that the first two prongs are satisfied, and they are not contested by Runner. So

the sole question in this case is whether the incriminating character of the visible glass stem

pipe was immediately apparent to Shilling.

The Supreme Court has indicated that “the use of the phrase ‘immediately apparent’

was very likely an unhappy choice of words, since it can be taken to imply that an unduly

high degree of certainty as to the incriminatory character of evidence is necessary for an

application of the ‘plain view’ doctrine.” Texas v. Brown,

(1983).

Relevant case law has elsewhere articulated that a search conducted under the plain view

doctrine “is presumptively reasonable, assuming that there is probable cause to associate

the property with criminal activity.”

at 738 (quoting Payton v. New York,

(1980)). Probable cause is a “flexible, common-sense standard” that “merely requires

that the facts available to the officer would ‘warrant a man of reasonable caution in the

belief’ . . . that certain items may be contraband or stolen property or useful as evidence of

a crime; it does not demand any showing that such a belief be correct or more likely true

than false.”

at 742 (quoting Carroll v. United States,

(1925)).

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.

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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. See Brown,

.

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. See United States v. Beal,

, 576–77 (6th Cir. 1987);

United States v. McLevain,

(6th Cir. 2002). But those cases differ on

their facts, in that the evidence in question consisted of objects the courts determined to be

intrinsically innocent.

In Beal, the government unsuccessfully appealed the district court’s order granting

the defendant’s suppression motion.

. Searching the defendant’s room

pursuant to a warrant for stolen furniture, officers came across two items that appeared to

be fountain pens, which the officers noted were “suspicious” because they were “extremely

heavy.”

at 575–76. The pens were seized and later determined to be able to expel .22

caliber projectiles.

. The defendant was charged with possession of an

unregistered firearm.

Affirming the district court, the Sixth Circuit reiterated factors

that help determine whether the incriminating nature of an object is immediately apparent,

including the “intrinsic nature” or “appearance” of the seized object.

at 576–77

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(citations omitted). The court concluded that the pens were “intrinsically innocent” objects

that could not immediately have been perceived as incriminating.

.

In McLevain, the Sixth Circuit reversed the district court’s denial of the defendant’s

motion to suppress evidence of a twist tie, cigarette filter, spoon with residue, and unlabeled

prescription bottle that were found in various locations, purportedly in plain view, during

a search of the defendant’s residence. 310 F.3d at 441–43. The Sixth Circuit recognized

that it was the officers’ experiences as law enforcement agents that led them to believe that

these everyday objects were drug paraphernalia but held that “[t]he connection between

these items and illegal activities . . . is not enough to render these items intrinsically

incriminating” or “to make their intrinsic nature such that their mere appearance gives rise

to an association with criminal activity.” Id. at 442.

The items that the Sixth Circuit found did not provide a basis for probable cause in

Beal and McLevain 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. See, e.g., United States v. Jones,

(4th Cir. 2012) (plain view observations of precursors to the

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manufacture of methamphetamine, coupled with the strong odor of chemicals associated

with methamphetamine production a pipe containing marijuana, and a pill crushed into

powder); United States v. Bullard,

, 243–45 (4th Cir. 2011) (plain view

of both cocaine residue and paraphernalia coupled with odor of narcotics); Jackson,

(plain view of scale, sifter, plastic bags, numerous gelatin capsules,

some white powder, and Isotol, an agent used to cut drugs); United States v. Turner,

(4th Cir. 1991) (cocaine along with drug paraphernalia in plain view between

the seats of the defendant’s vehicle); United States v. Halvorsen, No. 88-5805,

(4th Cir. June 6, 1988) (observation of a pipe coupled with information from

a local police officer that he had observed the defendant smoking and had detected the odor

of burnt marijuana); United States v. Chulengarian,

, 554–55 (4th Cir. 1976)

(plain view of pipe alongside two bags of marijuana and a marijuana cigarette). *

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

* For an out-of-circuit case addressing similar facts, see United States v. Van Zee,

, 343–44 (8th Cir. 2004), in which the Eighth Circuit declined to suppress a law enforcement officer’s search of a vehicle after the officer observed erratic driving, and then upon the stop, viewed one to one-and-one half inches of glass tubing, presumed to be a stem pipe, through an open car door, because the officer had past “experience as a narcotics investigator” and previously “had been told about [the subject’s] drug activities.” 11 USCA4 Appeal: 21-4085 Doc: 43 Filed: 08/08/2022 Pg: 12 of 12

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,” J.A. 29, in an otherwise “pretty empty” Wal-Mart

parking lot, J.A. 22.

That initial corroboration of the anonymous tip, alongside Shilling’s drug

recognition expertise, is sufficient. “Probable cause requires only a probability or

substantial chance of criminal activity, not an actual showing of such activity.” Illinois v.

Gates,

, 243 n.13 (1983). And the Supreme Court has noted that “innocent

behavior frequently will provide the basis for a showing of probable cause,” pushing back

against lower courts attempting to “impose a drastically more rigorous definition of

probable cause” or “a too rigid classification of the types of conduct that may be relied

upon in seeking to demonstrate probable cause.”

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.

For the foregoing reasons, the judgment of the district court is

AFFIRMED.

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