{1} Dеfendant appeals the denial of his motion to suppress evidence seized during a protective frisk. The question on appeal is whether the retrieval of a vial from Defendant’s pocket violated his constitutional rights, when only the vial, and no drugs, were in plain view. We hold thаt Defendant’s constitutional rights were not violated, and affirm the trial court’s denial of the motion to suppress and the Court of Appeals opinion to the same effect.
BACKGROUND
{2} Defendant was charged with possession of a controlled substance and entered a conditional plea, reserving for appeal the denial of his motion to suppress. At the suppression hearing, a police officer testified that he and another officer responded to a report of a break-in. The caller identified Defendant as the perpetrator. The caller also indicated that he had dealt with Defendant in the past and feared for his safety. When the officers arrived on the scene, they observed Defendant standing next to a van, and they saw him hand something to a person in the driver’s seat. The officer testified that he was concerned because he knew that earlier in the week Defendant had been pulled over at a border patrol checkpoint and found to be carrying weapons and a small amount of marijuana. The officer then undertook a protective pat dоwn of Defendant.
{3} The" officer testified that as he was patting down Defendant’s legs, he observed a glass vial in the coin pocket of Defendant’s pants. The officer described Defendant’s pants as quite baggy, allowing the pockets to hang open and permitting the officer to see the vial. The officer then testified that he removed the vial and asked Defendant what it was. Defendant answered, “That’s my shit.” The vial was clear glass and contained a white powdery substance, later determined to be methamphetamine. The officer also testified that he was familiar with vials of the type seized from Defendant, and that in his experience they are either empty or contain drugs. The Court of Appeals characterized the officer’s testimony, unchallenged on certiorari, as follows: “[the officer] knew that vials such as the one sticking out of Defendant’s pocket often contained drugs.”
{4} The district court denied the motion to suppress the vial and its contents. The court found that the officer was legally conducting a protective frisk when he observed the vial in plain view, and that the officer’s general еxperience identifying drugs and drug paraphernalia, and specific knowledge of Defendant’s past involvement with drugs, sanctioned the seizure of the vial. The Court of Appeals affirmed in a memorandum opinion, stating that the vial was in plain view and its incriminating nature gave the officеr probable cause to seize it.
STANDARD OF REVIEW
{5} In reviewing the trial court’s denial of the motion to suppress, we view the evidence in the light most favorable to the State. State v. Arredondo,
DISCUSSION
{6} This is a case of first impression for this Court. Defendant argues that the act of extracting thе vial from his pocket constituted a seizure of the vial in violation of his rights under both the Fourth Amendment to the United States Constitution, and Article II, Section 10 of the New Mexico Constitution. Defendant does not argue that the New Mexico Constitution should be interpreted differently from the United States Cоnstitution in the context of this appeal. Thus, we assume without deciding that both constitutions afford equal protection to individuals against unreasonable seizures in this context, and we analyze the constitutionality of the seizure under one uniform standard. State v. Gomez,
{8} Defendant argues that in seizing the vial, an item that could not have been mistaken for a weapon, the officer excеeded the scope of a permissible protective frisk. State v. Barragan,
PLAIN VIEW
{9} Under the plain view exception to the warrant requirement, items may be seized without a warrant if the police officer was lawfully positioned when the evidence was observed, and the incriminating nature of the evidence wаs immediately apparent, such that the officer had probable cause to believe that the article seized was evidence of a crime. Arredondo,
{10} As noted above, the parties agree that the officer was lawfully conducting a pat down when he observed the vial. The parties apparently agree that the vial, or a portion of it, was observed in plain view during the ordinary course of the pat down. However, the partiеs do not agree whether the incriminating nature of the vial was reasonably apparent to the officer when he first observed it in plain view. The contents of the vial, a white powdery substance, were not visible before the officer extracted the vial from Defendant’s pоcket.
{11} Defendant argues that a vial, partially in plain view but without any observable contents, cannot itself be incriminating, and cannot give rise to probable cause for its seizure when no drugs are visible. Defendant relies upon an out-of-state case, Hoey v. State,
{12} Responding tо Hoey, the State emphasizes the officer’s testimony in the present case that he was familiar with the use of glass vials as drug vessels and knew of Defendant’s recent involvement with drugs. Considered as a whole, the State argues that
{13} In our view, the present case more closely resembles the holding in Miles. Objects commonly associated with particular criminal activities can rеasonably give rise to inferences that are distinct from objects ordinarily used for benign, non-criminal purposes. An officer’s experience and training, considered within the context of the incident, may permit the officer to identify drug paraphernalia or drug packaging with a rеasonable level of probability, sufficient for probable cause. See Steinzig,
{14} In drawing parallels between the instant case and Miles, we nonetheless concur with Defendant’s primary point that, in the main, an officer’s mere suspicion about an ordinary object, which has common, noncriminal uses, will not support probable cause for its seizure. See State v. Vasquez,
{15} We are рersuaded, however, that the instant case is sufficiently distinct on its facts to give rise to probable cause. We are equally persuaded about factual differences between our case and Hoey, where the Arkansas court focused on the officer’s testimony “that he saw only plastic protruding from Hoey’s pocket, with no indication that it contained a white substance or anything else.”
{16} In addition to disputing probable cause based on what the officer saw, Defendant also argues for a higher standard than probable cause to justify seizing the vial. Defendant argues that an officer must be virtually certain of a container’s illicit contents, beyond mere probable cause, before
{17} Miles clearly stands for the proposition that only probable cause to believe that a container holds contraband or evidence of a crime is required for an officer to seize the container without a warrant. Id. at 558,
{18} However, unlike Miles, after seizing the vial, the оfficer did not proceed immediately to a warrantless search of its contents, or try to justify the search based on the revealing characteristics of the container. Instead, the officer properly continued his investigation, asking Defendant to identify the contents, and whеn Defendant did so, he incriminated himself. Accordingly, the views stated in Miles about inferences to be drawn from a container’s packaging, sufficient to justify a warrantless search of the container, simply do not apply to the present case.
CONCLUSION
{19} We affirm the denial of Defendant’s motion to suppress the vial and its contents.
{20} IT IS SO ORDERED.