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

O P I N I O N

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 
2

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 
3

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.
4

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).
5

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). 
6

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 
7

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 
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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 
9

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 
10

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 
11

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 
12

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. 
13

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. 
14

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).
15

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).