Criminal Defense
Since 1993
Since 1993
If It Looks Like a Pipe, Is It Always Illegal? (The “Plain View” Trap)
By: John Guidry
I can’t stress this enough: If you’re going to have cops around, please hide anything that even looks like it could be trouble.
Otherwise, you are going to be in trouble. Of course, not everyone follows the advice of criminal defense attorneys, as evidenced by the case of M.L. v. State, 47 So. 3d 911 (Fla. 3d DCA 2010).
Arrested because an officer saw something “suspicious” near you?
Just because they saw it doesn’t mean they could legally take it. Call John today at (407) 423-1117.
The Case: The Sleeping Teen and the Red Bag
In this case, a juvenile named M.L. was sleeping next to his red bag while police were in the area on an unrelated matter.
- The Item: Next to M.L.’s bag was a multi-colored pipe. It was sticking out of the bag, within arm’s reach.
- The Admission: When the officer picked up the pipe, M.L. woke up and exclaimed, “It’s my pipe.” (As we’ve discussed before, this type of honesty usually leads to handcuffs).
M.L. was arrested for Possession of Drug Paraphernalia and eventually convicted.
The Legal Battle: The “Plain View” Doctrine
The burning question was: What right did the officer have to pick up that pipe and examine it?
The State relied on the “Plain View” Doctrine. For police to seize something without a warrant, three conditions must be met:
- The officer must be in a place where he has a legal right to be.
- The officer must inadvertently come upon the object.
- It must be immediately apparent that the object is evidence of a crime.
The Victory: Why the Conviction Was Overturned
Good news: The appellate court overturned M.L.’s conviction.
Why? Because the State failed to prove the third element: It was not “immediately apparent” that the pipe was illegal.
The Court held:
“The mere observation of a portion of a pipe, without more, cannot constitute probable cause because it could be a tobacco pipe or other lawful object.”
Citing Walker v. State, the court reaffirmed that pipes are not contraband per se. Because people smoke tobacco (or other legal substances) in pipes, simply seeing a pipe does not give the police the right to assume it is for drugs.
The Lesson: Unless the officer sees drug residue or smells marijuana before he picks it up, he cannot touch it.
John’s 2026 Update: The “Hemp Defense” Changes Everything
Note: In 2010, the argument was “Tobacco.” In 2026, the argument is “Hemp” and “Medicine.”
Today, the “immediately apparent” defense is stronger than ever.
- Medical Marijuana: In Florida, patients are allowed to smoke whole-flower cannabis. Therefore, owning a pipe is perfectly legal for a patient.
- Hemp Flower: Federally legal hemp looks and smells exactly like marijuana. A pipe used for hemp is legal.
How this helps you: If an officer sees a pipe in your car today, he cannot legally assume it is “paraphernalia.” It could be a medical delivery device, or a tobacco pipe, or a hemp pipe.
- The Challenge: Police will often claim they saw “residue” to justify the arrest. We fight this by demanding lab testing. If they didn’t test the residue, they can’t prove it wasn’t legal hemp.
Don’t Let Them Guess Your Guilt
If you were arrested because an officer “assumed” an item was illegal, we need to hold them to the M.L. standard. They aren’t allowed to guess.
Call me at (407) 423-1117. Let’s challenge the seizure.
About John Guidry II
John Guidry II is a seasoned criminal defense attorney and founder of the Law Firm of John P. Guidry II, P.A., located in downtown Orlando next to the Orange County Courthouse, where he has practiced for over 30 years. With more than three decades of experience defending clients throughout Central Florida since 1993, Guidry has successfully defended thousands of cases in Orange, Seminole, Osceola, Brevard, Lake, and Volusia counties. He has built a reputation for his strategic approach to criminal defense, focusing on pretrial motions and case dismissals rather than jury trials.
Guidry earned both his Juris Doctorate and Master of Business Administration from St. Louis University in 1993. He is a member of the Florida Bar and the Florida Association of Criminal Defense Lawyers. His practice encompasses the full spectrum of Florida state criminal charges, with a particular emphasis on achieving favorable outcomes through thorough pretrial preparation and motion practice.
Beyond the courtroom, Guidry is a prolific legal educator who has authored over 400 articles on criminal defense topics. He shares his legal expertise through his popular YouTube channel, Instagram, and TikTok accounts, where he has built a substantial following of people eager to learn about the law. His educational content breaks down complex legal concepts into accessible information for the general public.
When not practicing law, Guidry enjoys tennis and pickleball, and loves to travel. Drawing from his background as a former recording studio owner and music video producer in the Orlando area, he brings a creative perspective to his legal practice and continues to apply his passion for video production to his educational content.