Opinion issued August 16, 2018




                                     In The

                              Court of Appeals
                                    For The

                         First District of Texas
                          ————————————
                             NO. 01-17-00039-CR
                           ———————————
                        DURWIN YOUNG, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 230th District Court
                           Harris County, Texas
                       Trial Court Case No. 1516207



                                    OPINION

      The question before us is whether, on this record, a police officer violated

Durwin Young’s constitutional rights by removing a pill bottle from Young’s pant

pocket, when Young was neither under arrest nor the subject of a search warrant.

The State contends that the officer’s actions pose no Fourth Amendment problem
because it was immediately apparent to the officer based on “plain feel” that the pill

bottle was contraband. We disagree and reverse.

                                     Background

      Young moved to suppress evidence obtained from a pill bottle because,

according to Young, Officer D. Duval unlawfully seized the bottle, removing it from

Young’s pant pocket without probable cause. The court heard arguments on that

motion.

      At the hearing, Officer Duval testified that on the evening of July 6, 2016, he

and his partner were patrolling an area known for crime and narcotics activity. The

officers pulled over a car because it did not make a complete stop at a stop sign.

Young was the passenger in the car.

      The car’s two occupants, Young and the driver, exited the car. Officer Duval

and his partner instructed them to get back in the car, and they complied. Officer

Duval noticed Young make furtive movements toward the car’s center console. No

evidence suggests that drugs or drug paraphernalia were visible in the car.

      Officer Duval asked to see Young’s driver’s license, but Young (the car’s

passenger) did not have it. Officer Duval then asked Young to get out of the car,

which he did. According to Officer Duval, Young appeared nervous.

      Officer Duval patted down Young to make sure he did not “feel the bulge of

a gun, bulge of a knife . . . anything like that.” Officer Duval felt a bulge in Young’s


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left pocket that, he testified, he initially thought may have been a weapon. Officer

Duval “grabbed it, shook it real quick, and it felt exactly like a pill bottle”―not a

weapon.1 Officer Duval asked Young what the object was. Young did not answer.

      Officer Duval testified that based on his experience, a pill bottle “absolutely”

may contain narcotics. Officer Duval also stated that he “believe[d] that it was

narcotics within that bottle” in light of “the circumstances, the high-crime area, the

time of night, [and] the defendant’s actions.”

      Officer Duval removed the bottle from Young’s pocket. Officer Duval then

saw an “orange prescription pill bottle” with an “extremely worn” label that did not

identify a patient’s name. Officer Duval’s experience taught him that the bottle’s

condition was “consistent with someone hiding narcotics.” Officer Duval opened the

bottle and found ten grams of ecstasy (methamphetamine).

      At the close of the hearing, the trial court denied Young’s motion to suppress

without making written findings of fact and conclusions of law.2


1
      Officer Duval further testified:

      Q.    Okay. So, now what resulted from you shaking the bottle? What did you learn
      from shaking the bottle? . . .

      A.    —I mean, obviously it didn’t feel like a gun, but by that point I made that
      determination. It felt like a bottle, a faint rattle, exactly like a pill bottle.
2
      In conducting our review, we also consider the trial testimony. See Rachal v. State,
      917 S.W.2d 799, 809 (Tex. Crim. App. 1996). The trial evidence on this issue was
      largely duplicative of that presented at the suppression hearing. A consideration of
      the trial testimony does not change our analysis.
                                           3
       The jury found Young guilty of possession of methamphetamine. Young

pleaded true to two enhancement paragraphs and the trial court sentenced him to 45

years in prison. Young appealed.

                                     Discussion

       Young contends that the trial court erred by denying his motion to suppress.

Young does not challenge the traffic stop or the reasonableness of Officer Duval’s

frisk for weapons. The only question is whether Officer Duval was constitutionally

permitted to remove the pill bottle from Young’s pant pocket. On this record, he was

not.

A.     Standard of Review

       In reviewing a trial court’s ruling on a motion to suppress evidence, we apply

a bifurcated standard of review. Carmouche v. State, 10 S.W.3d 323, 327 (Tex.

Crim. App. 2000); Blake v. State, 125 S.W.3d 717, 722 (Tex. App.—Houston [1st

Dist.] 2003, no pet.). We review questions of law de novo. Carmouche, 10 S.W.3d

at 327. But we give almost total deference to the trial court’s determination of facts

that depend on credibility. Id. And where, as here, the trial court made no written

findings of fact (and findings were not requested below), we “presume that the trial

court found facts consistent with its ruling as long as the implied findings are

supported by the record.” Nelson v. State, 463 S.W.3d 123, 126 (Tex. App.—

Houston [1st Dist.] 2015, pet. ref’d).


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B.    Legal Principles

      The United States and Texas Constitutions both prohibit unreasonable

searches and seizures. U.S. CONST. amend. IV; TEX. CONST. art. I, § 9. In its plain

terms, the Fourth Amendment to the United States Constitution protects “the right

of the people to be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures.” U.S. CONST. amend. IV; accord TEX. CONST.

art. I, § 9.3 “When the Government obtains information by physically intruding on

persons, houses, papers, or effects, a search within the original meaning of the Fourth

Amendment has undoubtedly occurred.” Florida v. Jardines, 569 U.S. 1, 5, 133 S.

Ct. 1409, 1414 (2013) (citation and internal quotation marks omitted).

      “[S]earches conducted outside the judicial process, without prior approval by

judge or magistrate, are per se unreasonable under the Fourth Amendment—subject

only to a few specifically established and well-delineated exceptions.” Arizona v.

Gant, 556 U.S. 332, 338, 129 S. Ct. 1710, 1716 (2009) (citation omitted). For one,

an officer with reasonable suspicion that an individual is involved in criminal

activity may conduct a brief investigative detention without first obtaining a warrant.



3
      Young’s argument focuses on the Fourth Amendment to the United States
      Constitution. Because he does not separately brief an argument under the Texas
      Constitution, we focus our analysis on the United States Constitution’s Fourth
      Amendment. See TEX. R. APP. P. 38.1(i); Heitman v. State, 815 S.W. 2d 681, 690–
      91 n.23 (Tex. Crim. App. 1991); Giles v. State, No. 01-08-00410-CR, 2010 WL
      2133893, at *6 (Tex. App.—Houston [1st Dist.] May 27, 2010, pet ref’d) (mem.
      op., not designated for publication).
                                          5
Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880 (1968); Carmouche, 10 S.W.3d

at 329. An accompanying pat-down is justified if the officer reasonably concludes

that the suspect might possess a weapon. Carmouche, 10 S.W.3d at 329; see Terry,

392 U.S. at 27, 88 S. Ct. at 1883; see also Strickland v. State, 923 S.W.2d 617, 620

(Tex. App.—Houston [1st Dist.]1995, no pet.) (“A pat-down search during a

detention is permissible when the police officer reasonably suspects he is dealing

with an armed and dangerous individual.”).

      The parties here dispute whether the officer (while conducting a Terry frisk

that Young does not challenge) was permitted to remove a pill bottle from Young’s

pant pocket and then open it. This implicates the plain feel doctrine.

      The plain feel doctrine holds that, if an officer conducting a lawful pat-down

search for weapons feels a non-weapon object “whose contour or mass makes its

identity immediately apparent” as contraband, the officer may seize that object

without a warrant. Minnesota v. Dickerson, 508 U.S. 366, 375–76, 113 S. Ct. 2130,

2137 (1993). This is because if an officer is legitimately conducting a Terry frisk,

no additional Fourth Amendment interest “is implicated by the seizure of an item

whose identity is already plainly known through the officer’s sense of touch.”

Carmouche, 10 S.W.3d at 330 (citing Dickerson, 508 U.S. at 377, 113 S. Ct. at

2138). If contraband is left in open view or feel and is observed by a police officer

from a lawful vantage point, there has been “no ‘search’ within the meaning of the


                                          6
Fourth Amendment―or at least no search independent of the initial intrusion that

gave the officers their vantage point.” Dickerson, 508 U.S. at 375, 113 S. Ct. at 2137;

see also Kentucky v. King, 563 U.S. 452, 453, 131 S. Ct. 1849, 1852 (2011)

(“[O]fficers may seize evidence in plain view if they have not violated the Fourth

Amendment in arriving at the spot from which the observation of the evidence is

made.”).

      The incriminating character of the object must be immediately apparent. See

Dickerson, 508 U.S. at 375–76, 113 S. Ct. at 2137. This means that, once the officer

has ruled out the presence of a weapon, he cannot conduct an additional search or

investigation to determine that the object is contraband. See id. (search was

unconstitutional when officer, after concluding that object was not a weapon,

manipulated object before determining that it was contraband); State v. Dobbs, 323

S.W.3d 184, 189 (Tex. Crim. App. 2010) (immediately apparent means “without the

necessity of any further search”).

      The “immediately apparent” requirement does not require actual knowledge

of the contraband. Williams v. State, 668 S.W.2d 692, 700 n.12 (Tex. Crim. App.

1983) (quoting Texas v. Brown, 460 U.S. 730, 741, 103 S. Ct. 1535, 1543 (1983)

(plurality op.)); see also Joseph v. State, 807 S.W.2d 303, 308 (Tex. Crim. App.

1991) (“[P]lain view analysis does not require actual knowledge of incriminating

evidence.”). But it requires “that the viewing officers . . . have probable cause to


                                          7
believe an item in plain view [or feel] is contraband before seizing it.” Dobbs, 323

S.W.3d at 189.

      Probable cause exists where the facts and circumstances known to law

enforcement officers are “sufficient in themselves to warrant a man of reasonable

caution in the belief that an offense has been or is being committed.” Marcopoulos

v. State, 538 S.W.3d 596, 602 (Tex. Crim. App. 2017) (citation omitted). To

determine whether an officer has probable cause, we consider the totality of the

circumstances. See Wiede v. State, 214 S.W.3d 17, 25 (Tex. Crim. App. 2007).

Probable cause is viewed objectively. See id. at 27. “An officer may rely on his

training and experience to draw inferences and make deductions that might well

elude an untrained person.” Nichols v. State, 886 S.W.2d 324, 326 (Tex. App.—

Houston [1st Dist.] 1994, pet. ref’d) (citing Brown, 460 U.S. at 746, 103 S. Ct. at

1545); Wiede, 214 S.W.3d at 25 (“[T]he training, knowledge, and experience of law

enforcement officials is taken into consideration.”).

C.    Analysis

      The plain feel doctrine did not justify the officer’s removal of the pill bottle.

And without the plain feel doctrine or other probable cause, the removal of the bottle

from Young’s pant pocket―on his person―contravened the Fourth Amendment.

Carmouche, 10 S.W.3d at 330 (“[I]f the protective search goes beyond what is

necessary to determine if the suspect is armed, it is no longer valid under Terry and


                                          8
its fruits will be suppressed.”) (quoting Dickerson, 508 U.S. at 373, 113 S. Ct. at

2136).

      As explained above, the plain feel doctrine permits an officer who is

legitimately conducting a Terry frisk to seize an item “whose identity is already

plainly known through the officer’s sense of touch.” Carmouche, 10 S.W.3d at 330

(citing Dickerson, 508 U.S. at 377, 113 S. Ct. at 2138). Central to the plain feel

doctrine’s application is that, through touch, the officer “plainly know[s]” (i.e. has

probable cause that) the object is contraband.

      Deferring to the trial court’s implied findings of fact, as we must, we conclude

the officer knew immediately based upon feel that the object in Young’s pant pocket

was a pill bottle. Yet that does not end the inquiry. The officer must also have a

reasonable belief that the pill bottle was (or contained) contraband.

      But an officer could not have had a reasonable belief based on feel alone (i.e.

touch through a pant pocket, with no visual image) that a pill bottle—an inflexible

container that by its nature prevents one from feeling its contents—was contraband.

See, e.g.¸ Sullivan v. State, 626 S.W.2d 58, 60 (Tex. Crim. App. [Panel Op.] 1981)

(“[T]his Court has held that the viewing of an unopened, translucent pill bottle

cannot, without more, justify a subsequent seizure.”); Howard v. State, 599 S.W.2d

597, 602 (Tex. Crim. App. 1979) (in plain view case, it was not immediately




                                          9
apparent that pill bottle contained contraband). A pill bottle, of course, has plenty of

legitimate uses.

      As the Court of Criminal Appeals has instructed, we credit the officer’s

training and experience. See, e.g., Wiede, 214 S.W.3d at 26–27. An officer’s training

and experience may well teach him that a particular person uses a certain type of

container to carry narcotics. See Griffin v. State, 215 S.W.3d 403, 410 (Tex. Crim.

App. 2006) (“The record supports a finding that [the officer] immediately recognized

the tubes in appellant’s pocket as contraband based on his knowledge that appellant

used these types of containers to carry illegal narcotics.”). Training and experience

could potentially teach an officer that a plastic bag with white powder may not have

much use (outside of a kitchen) besides carrying narcotics. See, e.g., Miller v. State,

667 S.W.2d 773, 777 (Tex. Crim. App. 1984) (officer had “probable cause to believe

that the plastic baggie in appellant’s pocket contained illicit substance”; sticking out

of appellant’s pocket was a bag containing white powder that officer suspected was

some type of narcotic); see also Wiede, 214 S.W.3d at 26–27. And an officer’s

training and experience might help him identify, based on plain feel, certain objects

like a crack pipe or a cocaine rock. See, e.g., Strickland, 923 S.W.2d at 621–22 (It

became immediately apparent that suspect had crack pipe when, in one motion,

officer felt “small, hard, tubular object, heard it clank against the lighter, felt both




                                          10
ends of the tube with his fingertips and immediately recognized the object to be a

crack pipe.”).

      But we cannot conclude that an officer’s training and experience would supply

a reasonable belief, based solely on touch, that a pill bottle—a common and typically

benign object—is contraband. See Gonzales v. State, 666 S.W.2d 496, 499 (Tex.

App.—Houston [14th Dist.] 1983, pet. ref’d) (“We do not believe that even an

experienced officer can look at an orange substance inside a plastic bottle and make

an immediate rational determination that the substance therein is methadone.”); State

v. Davis, 988 S.W.2d 466, 467 (Tex. App.—Houston [1st Dist.] 1999, no pet.) (“If

the pipe could have been a tobacco pipe, the ‘plain feel’ doctrine would not have

applied, because unlawful possession of the pipe would not have been immediately

apparent.”); see also Ex parte Warren, 783 So. 2d 86, 94 (Ala. 2000) (“After

considering both lines of cases that have reviewed the difficult issue presented in

this case, we conclude that the better-reasoned view is that espoused by those courts

holding that if the object detected by the officer’s touch during a Terry search is a

hard-shell, closed container, then the incriminating nature of any contents of that

container cannot be immediately apparent to the officer until he seizes it and opens

it.”) (emphasis omitted); Commonwealth v. Guillespie, 745 A.2d 654, 657–59 (Pa.

Super. 2000) (seizure of pill bottle from defendant’s pocket was unlawful because

bottle was not in a suspicious location on defendant’s person and did not reveal an


                                         11
incriminating consistency through officer’s tactile sense); State v. Abrams, 471

S.E.2d 716, 717–18 (S.C. App. 1996) (evidence obtained by seizure of Tylenol bottle

suppressed because incriminating character of the object was not immediately

apparent during pat-down).

      We turn—as the Court of Criminal Appeals has instructed us—to the totality

of the circumstances and ask whether all of the circumstances (including the pill

bottle), taken together, created probable cause that the pill bottle contained

contraband. See Wiede, 214 S.W.3d at 27. They did not. The circumstances would

not have justified a reasonable belief that what the officer felt was contraband.

      Young was a passenger in a car. He was not suspected of any crime, and he

committed no alleged infraction. No evidence suggests that drugs or drug

paraphernalia were visible in the car. Cf. Lipscomb v. State, 526 S.W.3d 646, 656–

57 (Tex. App.—Houston [1st Dist.] 2017, pet. ref’d) (contraband was immediately

apparent to police officer when officer found a plastic bag of pills inside an open

“hide-a-can,” officer knew that hide-a-cans used “false lid[s]” to “hide stuff” like

“dope,” there was a scale on kitchen counter next to contraband, and apartment had

trappings of “narcotics house”). Yes it was around 10:00 p.m. in a high crime area.

And yes the officer testified that Young appeared nervous, exited the vehicle (then

promptly followed instructions to reenter and exit), and made furtive gestures toward

the center console—notably, not toward his pocket containing the pill bottle.


                                          12
      But “there remains . . . a discernible gap” between any suspicion created by

the area and time, on the one hand, and the proof necessary to establish probable

cause, on the other. See Marcopoulos, 538 S.W.3d at 602 (“There remains, then, a

discernible gap between the reasonable suspicion aroused by Marcopoulos’s brief

presence at [a known narcotics establishment] and the proof necessary to establish

probable cause.”); see also Carpenter v. United States, 138 S. Ct. 2206, 2221 (2018)

(“The Court usually requires ‘some quantum of individualized suspicion’ before a

search or seizure may take place.”) (quotation omitted). And Young’s actions do not

bridge the gap. See Marcopoulos, 538 S.W.3d at 601–03. To support probable cause,

“furtive gestures must be supported by evidence that directly, not just ‘vague[ly],’

connects the suspect to criminal activity.” Id. (citations omitted). Young’s gestures

to the center console “were not connected to a known or suspected instrumentality

of crime,” and the totality of the circumstances did not supply probable cause that

the pill bottle contained contraband. See id. (officers lacked probable cause that

contraband was present in vehicle; although defendant briefly appeared at known

narcotics establishment and made furtive movements, officers did not know what

happened inside the establishment, and defendant’s furtive movements were not

connected to known or suspected instrumentality of crime).

      An officer conducting a valid investigative detention must have probable

cause to conduct a search for non-weapon contraband or other evidence. Baldwin v.


                                         13
State, 278 S.W.3d 367, 371–72 (Tex. Crim. App. 2009). Without probable cause,

“the officer’s conduct of reaching into appellant’s pocket—even under a valid

investigative detention—was an illegal search unless there existed some exception

to the usual probable cause requirement.” Id. at 372. There was no valid exception

here. The officer’s removal of the pill bottle was unconstitutional, and the trial court

erred in denying Young’s motion to suppress. See Carmouche, 10 S.W.3d at 330–

31.

      Other than the improperly admitted contents of the pill bottle, the record

contains no evidence of possession of methamphetamine. Thus, we cannot say

beyond a reasonable doubt that the trial court’s error in denying the motion to

suppress did not contribute to Young’s conviction. See TEX. R. APP. P. 44.2(a).




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                                    Conclusion

      We reverse the trial court’s judgment, and we remand the case to the trial court

for further proceedings.




                                              Jennifer Caughey
                                              Justice

Panel consists of Justices Bland, Lloyd, and Caughey.

Publish. TEX. R. APP. P. 47.2(b).




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