TX1: Pill bottle in pocket wasn’t presumed to contain contraband; plain feel not valid

Defendant admits that he was validly stopped and patted down. The only question is whether the pill bottle removed from his pocket was subject to plain feel, and the court concludes it was not. It was obviously not a weapon, and case law shows that pill bottles don’t per se contain contraband. Young v. State, 2018 Tex. App. LEXIS 6424 (Tex. App. – Houston (1st Dist.) Aug. 16, 2018):

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

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