Mark Ball v. United States
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Notice: This opinion is subject to formal revision before publicatio n in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made b efore the bound volumes go to press. DISTRICT OF COLUMBIA COURT OF APPEALS No. 98-CF-787 M ARK B ALL, A PPELLANT, v. U NITED S TATES OF A MERICA, A PPELLEE. Appeal from the Superior Court of the District of C olumbia (F-8935-97) (Hon. Judith Bartnoff, Trial Judge) (Submitted June 8, 2000 Decided July 25, 2002) Sara E. Kopecki was on th e brief for a ppellant. Wilma A. Lew is, United States Attorney at the time the brief was filed, and John R. Fisher, Mary-Patrice Brown, Adam L. Rosman and Susan A. Nellor, Assistant United States Attorneys, were on the brief for appellee. Before F ARRELL , R UIZ and G LICKMAN, Associate Judges. R UIZ, Associate Judge: Mark Ball appeals from his conviction of unlawful possession with intent to distribute a controlled substance in violation of D.C. Code ยง 33-541 (a)(1) (1993), on the gro und that the trial court shou ld have gra nted his motion to suppress physical evidence drugs and $953 in cash found during a search following his arrest. Ball pled guilty, reserving the right to appeal the denial of his motion to suppress evidence for lack of 2 probable cause. We con clude that the officer s plain fee l of a large medicine bottle, enhanced by the officer s observations of appellant s conduct and experience with the practice of dru g traffic kers, ga ve the o fficer p robabl e cause to searc h, and a ffirm. FACTUAL SUMMARY At the suppression hearing , the only witness was Of ficer Richard Harger, a three and one-half year veteran o f the Me tropolitan Police Department. He testified that at approxim ately one o clock on the morning of November 12, 1997, he and his partner, Officer Howard Howland, were traveling north on North Capitol Street when Officer Howland observed an automobile, a Lincoln Continental, without a front license plate. The officers turned around to follow the Lincoln, and made a traffic stop after they observed that it had a homem ade license plate made of cardboard in the rear window. Officer Harger approached the stopped car from the passenger side and, when the officer illuminated the back passenger area with his flas hlight, he saw appellant se ated in the back seat. Officer Harger then spoke with the front sea t passenge r, who claim ed to be the owner of the vehicle. Although it was a cool night, the front seat passenger started to perspire from his forehead and was starting to get excited ; the situation s tart[ed] to ge t slightly more inten se the longe r [the officer] was standing there. The officer obtained the front-seat passenger s consent to search the automobile, and frisked him. As Officer Harger was frisking the front seat passenger, he 3 observed appellant start[] to move his left hand and he was trying to cover his abdomen area with a newspaper which w as seated on the seat nex t to him, wh ereupon he had ap pellant exit the vehicle, concerned that he might have a gun or other w eapon on his person. As he exited the vehicle, a ppellant im mediately put his hands in his jacket pocket. The jacket was a sweatshirt type coat t hat had pocke ts on the front w here you enter ha nds fro m the sid e. Officer Harger ordered appellant to remove his hands from the jacket pockets and place them on top of the vehicle. As appellant did so, he once again attempted to place his right hand in his right front jacket pocket, at which point the officer pushed him against the car and asked for his name and identification. Appellant responded that the identif ication wa s in his left rear pants p ocket. As a ppellant reached for the identification w ith his left hand, [a]t the same time he w as trying to go to his right front jacket pocke t with his right hand for a third time. Officer Harger grabbed appellant s right hand and proceeded to perform a protecti ve fris k of his outer g armen t, particu larly the rig ht fron t pocke t of his ja cket. As the officer frisked appellant, he felt a large cylinder container which [he] thought to be a large medicine bottle, and immediately thought that it was some kind of contraband or narcotics be cause [ap pellant] made several attempts to go into his pocket and remov e it. Officer Harger removed the medicine bottle from appellant s pocket, opened it, and saw a 4 large number of ziplock bags containing a white rock-like substance.1 Appellant then snatched the bottle fro m Off icer Harge r s hand, thre w it a short distance, striking the officer in the face with the throwing motion, and began to flee. Appellant was caught and arrested, and in a search following his arrest, $953 in cash was found on his person. The officer testified that he had been invo lved in mo re than one hundred drug-related arrests, that he is familiar with the ways that drugs are packaged and hidden, and that he has arrested numerous people who have hidden narcotics in medicine bottles. The trial court credited Officer Harger s testimony and found that appellant s actions in calling attention to the front right pocket of his jacket provided a reasonab le basis for the officers to believe th at he may be a rmed and justified a pro tective frisk. T he trial court further credited that the object in appellant s pocket was immediately apparent to Officer Harger as a medicine bottle and ruled that the combination of feeling the bottle, knowing it was a bottle, the size of a bottle,2 the experience of the officer w ith regard to the packaging of narcotics in this kind of container and the defendant s actions constituted probable cause and jus tified the search . 1 2 The medicine bottle was received into evidence at the suppression hearing. The trial court stated that [t]his is not a small bottle that just contains a couple of pills, this is a fairly larg e bottle. 5 ANAL YSIS Appellant contends that the police unlawfully seized the medicine bottle during the Terry frisk.3 Specifically, he argues that Officer Harger s tactile detection of the closed medicine bottle, even when viewed in conjunction with other circumstances such as the officer s narcotics experience and appellant s continued attempts to access the jacket pocket failed to establish probable cause for the offic er to believe that the bottle contained contraband. When reviewing the den ial of a motion to suppre ss, this court defers to the trial court s findings of fact, unless they are clearly erroneous or not supported by the rec ord. See Pow ell v. United States, 649 A .2d 108 2, 1084 (D.C. 1 994). All facts and reasonable inferences are to be viewe d in the light m ost favora ble to the go vernmen t. See Nixon v. United States, 402 A.2d 816, 819 (D.C . 1979). Howe ver, we independ ently review the trial court s legal conclusion on pro bable c ause. See Green v. United States, 662 A.2d 1388, 1389 ( D.C . 1995) . [P]roba ble cause is a flexible, common-sense standard that does not demand any 3 Ball does not appeal the trial court s ruling that the protective frisk was proper pursuant to Terry v. O hio, 392 U.S. 1 (1968 ). 6 showing that [the officer s belief that he has witnessed c riminal behavior] be correc t or more likely true than false. Coles v. U nited States, 682 A.2d 167, 168 (D.C. 1996) (quoting Texas v. Brown, 460 U.S. 730, 742 (1983) (plurality opinion)). [T]he test for judging the existence of probable cause is whether a reasonably prudent police officer, considering the total circumstances confronting him and drawing from his experience, would be warranted in the belief that an offense has been or is being committed. Peterkin v. United States, 281 A.2d 567, 568 (D.C. 1971) (internal quotation o mitted). Thu s, we are req uired to eva luate the reasonableness and strength of the inferences that could be drawn from the facts that confro nted the office r who frisked appella nt in this c ase. I. The Plain Feel Doctrine The Suprem e Court ha s recognize d the existen ce of a p lain feel exception to the Fourth Amendment s warrant requirement, analogous to the plain view exception, that permits warrantless seizures of obvious contraband discovered during the course of a lawfully conducted frisk or searc h. See Minnesota v. Dickerson, 508 U.S. 366, 374-76 (1993). If a police officer lawfully pats down a suspect s outer clothing and feels an object whos e contour o r mass ma kes its identity immed iately apparent, there has been no invasion of the suspect s privacy beyond that already authorized by the officer s search for weapons; if the object is contraband, its warrantless seizure would be justified by the same practical considerations 7 that inhere in th e plain-view context. Id. at 375-76 (emphasis added). This court recognized the plain feel exception in (Kenneth) Dickerson v. United States, 677 A.2d 509 (D.C. 1996). For a seizure of contraband under the plain feel exception to the warra nt requirem ent, 1) the pat-down must be p ermissible under Terry, 2) the contraband must be detected in the course of the Terry search, and 3) the incriminating nature of the object perceived to be contraband must be immediately apparent to the off icer. See Minnesota v. Dickerson, 508 U.S. at 375-76; State v. Bridges, 963 S.W.2d 487, 494 (T enn. 19 97). Immed iately apparent for purpo ses of plain feel analysis does not mean that an officer must know for certain that the item felt is c ontraband , only that there is probable cause to associa te the item with cr iminal a ctivity. See Texas v. Brown, 460 U.S. at 741 ( [T]he use of the phrase immediately apparen t was very likely an unhappy choice of words, since it can be take n to imply that an unduly high degree of certainty as to the incriminatory character of evidence is necessary for an application of the plain view doctrine. ); State v. Wonders, 952 P.2d 1351, 1362 (Kan. 1998) ( [T]he same construction of the imme diately apparen t requireme nt in plain view situations should be applied to those involving plain feel. ); People v. Champion, 549 N.W.2d 849, 855 (Mich. 1996) ( [I]mmed iately apparent means that without further search the officers have probable cause to believe the items are seizable. (quoting Texas v. Brown, 460 U.S. at 741-42 )). Thus, as we noted in (Kenneth) Dickerson, [A]n of ficer must p ossess prob able cause that the item is contraband or eviden ce of a crime to seize the object la wfully. 677 A.2d at 513 8 n.5. See also Christmas v. United States, 314 A.2d 473 , 479 (D.C. 1974 ) (finding seizure illegal absent p robable ca use to believe medicine vial contained contraband or endangered office r s safe ty at the tim e of the initial intru sion). II. Plain Feel of In nocent Ob jects In (Kenneth) Dickerson, we explained that although the contour or mass of some items may ma ke their i dentity as c ontrab and im media tely appar ent, [o]ther shapes, sizes, and weights, of course, are likely to be more ambiguous consistent, for example, with drug packages but also with cigarette, candy, and other sma ll packages. 677 A.2d at 512. We further noted that, absent probable cause, the officer s touch of the object cannot go beyond the bounds circum scribed under Terry and thus cannot amount to the sort of evidentiary search that Terry expressly refused to authorize . . . such as squeezing, sliding, and otherwise manipulating the contents of the suspect s clothing. Id. (quoting Minnes ota v. Dickerson, 508 U.S. at 378). We cautioned that [t]rial courts must be careful to assu re that a police of ficer s imm ediately apparent recognition of a concealed drug package, for example, is not too casually claimed or accepted. Id. There is no claim here that Officer Harger exceeded the bounds of a frisk, and manipulated the medicine bottle befo re deciding that it likely con tained c ontrab and. T he precise question befor e the court in this case is whether Officer Harger s tactile perception of the medicine bottle while patting the outer 9 surface of appellant s jacket, combined with the attendant circumstances known to the officer at the time, prov ided prob able cause for his belief that the bottle contained contraba nd before he reache d into appe llant s pocke t to retrieve it. We have not directly addressed this issue in the context of the plain feel doctrine. Other courts hav e split on w hether, und er the plain feel doctrine, an officer may seize a container that is not in itself contraband and does not conform to the shape of contraband (such as a medicine bottle or match book) , yet is known to be routinely used to package or contain drugs. The difference between the approach of the courts which have found probable cause when considering the officer s tactile perception of an object that ha s both legitimate and illicit uses,4 and those which have concluded that the officer s touch of a legal 4 In State v. Rushing, 935 S.W.2d 30 (M o. 1996), the Suprem e Court of M issouri affirmed the seizure of cocaine found in a plastic medicine bottle pursuant to a pat-down search conducted after the defendant had been observed as a participant in what appeared to be a drug transaction in an area known for drug trafficking and gang activity. Id. at 31. In Rushing s front poc ket the off icer felt wh at he imm ediately thought was a tubular plastic Life Saver Hole candy con tainer, whic h is a comm on contain er used by cra ck dealers to carry their crack cocaine in. Id. at 31. Notin g that the im mediately app arent requirement equates with the probable cause standard, the Missouri Supreme Court held there to be sufficient evidence to support a finding of probable cause even though [the officer] felt the container rather than the cocaine itself. Id. at 33. Given the officer s training and experience, [t]he distinctive character of the contain er itself reveale d its probable c ontents to the trained officer. Id. A dissent in Rushing reasoned that the eff ect of the m ajority opinion is to reduce the probable cause standard to one of reasonable suspicion. Id. at 34 (Covington, J., dissenting). Likewise, in People v. Champion, 549 N.W.2d 849 (Mich. 1996), the Michigan (contin ued...) 10 4 (...continued) Supreme Court considered the degree of certainty required tha t an object fe lt during a pa tdown search is contraband before a police officer may remove that object from the person being searched, id. at 851, and concluded that upon feeling the p ill bottle, under a totality of the circumstances, the officer had probable c ause to belie ve that the p ill bottle contained contrab and. Id. at 858. In concluding that the officer had probable cause to believe the pill bottle, which was felt in the suspect s groin area, contained dru gs, the court sp ecifically relied on the facts that 1) Champion had exited his vehicle and walked away on seeing the police, 2) one of the officers recognized Champion and was aware of his previous drug and weapons convictions, 3) the officers were in a high drug area, 4) Champion had his hands tucked inside the front of his sweatpa nts while w alking aw ay and refuse d to remov e his hands when re peatedly aske d to do so, and 5) the twenty-year veteran officer who performed the pat-down was aw are that con traband is o ften carried in the type of p ill bottle detected on the defen dant s p erson. See id. at 859. Th e court cou ld not ima gine that an y reasonable person in [the officer s] position, given all of the above circumstances, could have concluded that [the defendant] was carrying prescription medication, or any other legitimate item, in the pill bottle in his groin region. Id. The court rejected the v iew that Dickerson requires that the object felt be contrab and rather th an contain it, such a distin ction only servin g to encourage better packing of illicit drugs. Id. at 856 n.8. The cou rt cautioned, howev er, that if the pill bottle in Mr. Champion s possession had been found in his jacket pocket or if Mr. Champion had not had his hands inside his sweatpants and he had no pockets in which to carry a pill bottle, the result may have been different. Id. at 859. A v igorous diss ent in Champion argued that [t]here is nothing illegal about pos sessing [a p ill bottle], id. at 866 (Brickle y, J., dissenting), an d that in Dickerson the Supreme Court allowed an object felt during the course o f a lawfu l Terry search to be admitted into evidence only where that particular object s mass and contour make its incriminating character im mediately apparent. Id. at 865- 66 (em phasis in origina l). In State v. Traylor, 723 So. 2d 497 (La. Ct. App. 1998), a Louisiana intermediate appellate court conc luded that th e seizure of a pill bottle found in the sock of a suspect was proper based on the totality of the circumstances, emphasizing that [i]t was late at night on a campus where Traylor was not a student ; that [d]espite orders to cease, Traylor persisted in reaching for his leg, thus direct[ing] [the officer s] attention to this area of his clothing by his actions ; the officer found a Tylenol vial in which the officer knew that crack dealers often hide drugs ; and that the bottle was hidden in the defendant s sock, an unusual place for one to store his pain reliever. Id. at 500. (contin ued...) 11 item gives rise to only a reasonable suspicion that the item might contain contraband,5 is that 4 (...continued) Accord State v. Stevens, 672 So. 2d 986, 988 (La. C t. App. 1996) ( [I]n the pocket of a drug-selling suspect flagging down cars at night in an area known for illegal drug trafficking, a small matchbox can be immediately recognized, by feel, for what it almost surely is, a dep ository fo r crack c ocaine . ). See also S tate v. Lee, 709 N.E.2d 1217, 1219-20 (Ohio Ct. App . 1998) (contraband c ontained in pill bottle immediately apparen t). 5 In State v. Bridges, 963 S.W.2d 487 (Tenn. 1997), the Supreme Court of Tennessee suppressed evidence seized when, during the course of a pat-down to ensure that Bridges was not carrying wea pons, the o fficer felt in Bridges right jacket pocket an object in the shape of a pill bottle, which he recognized as the kind that a lot of other crack dealers will use to keep their crack in. Id. at 489. Th e officer h ad received informatio n from a r eliable informant that Bridges was selling cocaine and carrying cash and drugs on his person, had received prior tips regarding B ridges dea ling crack c ocaine in the same area, and w as aware that Bridges previously had been convicted of felony assault and had recently been in an armed altercatio n with p olice. See id. The Tennessee Supreme Court reasoned that it was not immediately apparent to [the officer] that the bottle contained contraband until it was removed from the defend ant s pocket[,] . . . the very type of further manipulation forbidden by Dickerson. Id. at 495. Although the officer immediately recognized the object as a pill bottle, the court stated that unless he was clairvoyant, he could not have discerned the contents from merely touching the container. Such a bottle, or one resembling it by touch, may enclose leg al medicatio n, candy, pins, film or any num ber of othe r small items. Id. The court distinguished Champion by noting that noticeably lacking from the officer s testimony in Bridges was the objective basis upon which he relied for identification of the container itself or its possible contents as contrab and. The record contains little evidence of [the officer s] experience in drug cases and no evidence as to how he connected the container with the possession of cocaine. Id. A dissenti ng justice would have held that given the facts and circum stances of the search, th e officer h ad proba ble cause to believe the p ill bottle contain ed con traband . See id. at 497 (Drow ota, J., dissenting). In Commonwealth v. Stevenson, 744 A.2d 1261 (Pa. 2000), the Supreme Court of Pennsylvan ia held there was no p robable ca use in a case where a s uspect be gan to fidget and move [his] hands around inside the vehicle, and after he was ordered out of the car, appeared very nervous, and co ntinued to mov e his hands ab out and around his jack et. Id. at 1264. Based on these nervous and suspicious movements, the trooper patted the suspect down, feeling w hat appea red to be a cigarette or cigar and something similar to a pill bottle in the liner of [the suspect s] jacket. Id. Remov ing the items, the officer discovered that (contin ued...) 12 5 (...continued) the pill bottle contain ed crac k coca ine and the hollo wed o ut cigar c ontaine d mariju ana. See id. Despite the officer s testim ony that in his e xperience as a police off icer, he had previously seen crack cocaine packaged within pill bottles, the court noted that although [the office r] felt w hat he d escribe d as . . . a pill bottle during his frisk of [ the suspec t], he did not plainly feel, as Dickerson requires, objects that were immediately apparent to him as contraband. Id. at 1265 (em phasis in orig inal). Noting that [t]here is no dispute that pill bottles and cigars are legal items with legal purposes, the court held th at the imm ediately apparent requirement of the plain feel doctrine is not met when an officer conducting a Terry frisk merely feels and recognize s by touch an object that co uld be use d to hold either legal or illegal substances, even when the officer has previously seen others use that object to carry or ingest drugs. Id. at 1266. Analogizing to a p lain view case, the court commented that if the suspect had been walking down the street visibly displaying a pill bottle and a cigar, with nothing inc riminating a bout the co ntainers in sight, an off icer wou ld be unauthorized in seizing those items under the plain view exception to the warrant requirement. Id. at 1267 n.4. Citing Dickerson s stricture on manipulating the object before the nature of the object is apparent, the court reasoned that because the incriminating contents of the objects were detected only after [the officer] seized and inspected the cigar and pill bottle by sight, . . . the immediate ly apparent requirement of the plain feel doctrine has not been satisfied. Id. at 1267. The dissent in Stevenson faulted the majority for fail[ing] to examine the totality of the circumstances and d iscount[ing] the [officer s] experience, id. at 1271, and instead announcing an interpreta tion of the immedia tely apparent requirement that would require certainty on the part o f the office r, requiring him to identify an item as contraband to the exclusion of any other possibility. Id. at 1272 (Castille, J., dissenting). Accord United States v. Ross, 827 F. Supp. 711, 718 (S.D. Ala. 1993) (matchbo x in groin area not immediately apparent as contraband); Jackson v. State, 669 N.E.2d 744, 750 (Ind. Ct. App. 1996) (suspicious m ovements and b ehavior leading to discov ery of partially transparent prescription medic ine bottle no t sufficient to r ender its con tents imme diately apparent as contraban d); State v. Parker, 622 So.2d 791, 795 (La. Ct. App. 1993) ( A matchbox in and of itse lf is not contrab and. . . . In order to determine if the match box held drugs, it was necessary for the officer to remove it from inside the defendant s pocket and open it. This is the type of further manipulation outlawed by Dickerson. ). See also E x parte Warren, 783 So. 2 d 86, 94 (A la. 2000) (pla in feel of p lastic candy container not sufficient to establish probable cause and opening the container was improper further m anipulation); Howard v. State, 645 So. 2d 156, 158-59 (Fla. Ct . App. 1994) (pla in feel alone of film canister does not establish probable cause and fact that officer shook the canister was (contin ued...) 13 the latter courts focus on the tactile perception of the felt object to the exclusion of other attendant circumstances which may inform the officer s belief of what he is touching. Although we have no case directly on point, our Fourth Amendment jurisprudence leads us to apply a contex tual ana lysis in plain feel cas es. First, and most notably, in (Kenneth) Dickerson we recog nized that the tactile perception of an object may be informed by the officer s training and experience and other attendant circum stances . See 677 A.2d at 512. Although that case did not involve an object that has innoc ent uses, it is instructive in that it analyzes the plain feel doctrine consistent with ou r plain v iew jur isprude nce. W e do the same h ere. In Christmas v. United States, 314 A.2d 473 (D.C. 1974), a plain view case, we considered whether the seizure o f a prescriptio n pill bottle and the exam ination of its contents, which the officer could not see, was reasonable. We held that the seizure was not justified under the plain v iew doctrin e because the police o fficer wa s without p robable cause to believe that such contents were subject to seizure as contraband. Id. at 478. In Christmas, officers observed the passenger bend over several times reaching under the seat 5 (...continued) improper further manipulation); State v. Oborne, 651 N.E.2d 453 (Ohio Ct. App. 1994) (after determining film canister was not weapon, no probable cause that it containe d contraband); State v. Abrams, 471 S.E.2d 716, 717-18 (S.C. Ct. A pp. 1996 ) (per curiam ) (medicine bottle wrapp ed in bla ck tape not imm ediately ap parent) . 14 of the auto . See id. at 474. Observing this, the officers decided to spot check the car and pulled it over. Id. An officer picked up a plastic vial tha t was on th e seat, noticing as he did so that the vial contained two pills and had a worn prescription label atta ched. See id. at 475. After each occupant denied ownership of the vial, the officer opened the bottle, removed the pills, and pla ced the occup ants un der arre st. See id. Holding that the officer did not have probable cause prior to seizing the pill bottle, the court thought it significant that the officer, unlike in the case at bar, had no special training or experience in the area of narcotics, and there was no testimony of the officer s knowledge, based on experience, that such medicine vials with prescription labels attached were used to transport narcotic drugs. Id. at 476-77. This comment implies that, had there been such testim ony, Christmas may very well have upheld the seizure.6 That additional eviden ce wa s presen ted in an other p lain view case, Hicks v. United States, 705 A.2d 63 6 (D.C. 1997), w here the court contrasted the lack of testimony regarding the officer s narcotics experience in Christm as, stating that the officer s testimony that he had been assigned to vice for five years, that he was familiar with the area as one in which marijuana was sold and that he recognized the blunts as cigars used to smoke marijuana and 6 Christmas is also distinguishable in that the passenger s several movements which the officer had observed did not add to the p robable ca use determ ination bec ause the bo ttle was seized from where it lay on the front seat and not from under the seat, where the passenger was seen reaching. Christmas movements merely gave rise to the officers suspicio ns that so methin g was amiss a nd pro mpted their dec ision to s top the v ehicle. 15 the vanilla extract bottle as used to carry PCP . . . based on h is own ex perience, s ufficed to support the trial court s factual finding that the officer r ecognize d the objec ts as probab le items of contraband. Id. at 641 n.10.7 In In re J.D.R., 637 A.2d 849 (D.C . 1994), w e conclud ed there w as probab le cause based on the officer s plain view observatio n of an item routinely used in drug trafficking, in that case a ziploc k bag. In J.D.R., officers pulled over a veh icle in the early morning hours which was driving without headlights in an area known for high drug tra ffickin g. See id. at 850. J.D.R . sat in the fron t passenge r seat, with a cast on his le ft arm. See id. The officer approaching the passenger side noticed the corner of a small ziplock bag sticking out from inside [J.D.R. s] cast. Id. When the officer shin ed his flashlight on J.D.R. s hand, J.D.R. curled up his fingers so that the ziplock bag co uld not be seen . See id. Based on the o fficer s knowledge that ziplock bags are commonly used as containers for illicit drugs, the officer ordered J.D.R. to exit th e vehic le and to open h is hand . See id. When J .D.R. said h e could not open his hand, the officer pried open his fingers and again saw the corner of a ziplock bag. See id. The officer seized the bag, which was found to contain crack c ocaine . See id. A further search of the cast yielded another ziplock bag containing crack cocaine. See id. We rejected J.D .R. s argum ent that the officer saw so little of the bag sticking out from 7 In Hicks the court did not order suppression of the seized items because the officer had no lawful basis for being in a p osition to see th e items in pla in view. 705 A.2d at 640. 16 under the cast that he could not reasonably have concluded that [J.D.R.] was in possession of any drugs. Id. Rather, w e held that the officer sa w enou gh of the p lastic object . . . to recognize it as a ziplock bag and [p]utting that fact together with his knowledge, based on personal experience, that such bags were commonly used as drug containers, the officer [rea sona bly] concluded that appellant was concealing an illicit drug inside his cast. Id. See also United Sta tes v. Prand y-Binett, 302 U.S. App. D.C. 1, 995 F.2d 106 9 (1993) (p robable cause to arrest upon officer s view of a rectangular package, bound in silver duct tape, that the suspect, w ho had m ade incon sistent respon ses to police q uestions, had described as a gift); Price v. United States, 429 A.2d 514 (D.C. 1981) (probable ca use based on of ficer s sighting of a small manila envelope which he recognized as a commonly used container for illicit drug s). These cases, in which probable cause was found based on the officer s plain view, recognizing distinctive packaging used in the drug trade for smaller quantities, coupled with evidenc e describing the arresting officer s experience with the p articular packaging, J.D.R., 637 A.2d at 850 (quoting Prandy -Binett, 302 U.S. App . D.C. at 5, 995 F.2d at 10 73), and other circumstances suggesting criminal activity, persuade us to adopt a similar approach in plain feel situations.8 This appr oach is con sistent with the Suprem e Court s re asoning in 8 United Sta tes v. Adell, 676 A.2d 446 (D.C. 1996), is not to the contrary. In Adell, officers pulled over the appellant because the car he was driving lacked a front licens e plate (contin ued...) 17 Dickerson that seizure under these circumstances does not increase inva sion of the suspect s privacy beyond that already authorized, for a limited search of the suspect s person. 508 U.S. at 375. To require more certainty from the feel of the object alone would be to expect more from the immediately apparent requirement than the probable cause required by the Fourth Ame ndme nt. See Texas v. Brown, 460 U.S. at 743 (plurality of the Su preme Cou rt dismissed as all but irrelevant the officer s inability to see through the opaque fabric of a seized balloon believed to contain cocaine). The further intrusion into the suspect s possession is justified once the officer has probable cause to believe that it contains contraband. See Ho rton v. Califo rnia, 496 U.S. 128, 141-42 & n.11 (1 990). We turn to apply these principles to the facts of the present case. 8 (...continued) and inspec tion stick er. See id. As the officers were abo ut to start a consensu al frisk, Ade ll attempted to reach into his f ront lef t pocke t. See id. After being ordered to place both hands on his car, Adell again reached f or the same pock et, whereupon the o fficer pulled Adell s hand out of the p ocket and stuck his own ha nd into Adell s pocket to see what it contained. See id. at 446-47. Feeling a plastic bag which contained a rock-like substance, the officer removed the bag and with further manipulation of its contents found it to contain cocaine. See id. at 447. Relying on the Supreme Court s Dickerson decision and Terry, we held that once the offic er realized th at [the plastic b ag] was n ot a weap on and d id not conta in a weap on, the continued exploration of the pocket constituted an illegal search and seizure. See id. at 448. Adell is not instructive in the present case because, as we noted in (Kenneth) Dickerson, [i]n Adell, the govern ment did n ot argue tha t the officer h ad proba ble cause to seize the plastic bag, nor did the officer articulate any suspicion that the bag contained contraband, much less sho w . . . immediate recognition of the bag s contents. 677 A.2d at 514 n.10. 18 III. Immediately Apparent /Probable Cause Determination A medicine bottle is an object with obvious legitimate use for prescription medication or as a contain er for sma ll objects, but which can also, to the mind of a trained officer, be put to illicit uses . See (Bertrand) Dicke rson v. United States, 650 A.2d 680, 682 (D.C. 1994) (pill bottle contain ing crack c ocaine); United States v. Bellamy, 619 A.2d 515, 517 (D.C. 1993) (illegal amm unition in pill b ottle); Offutt v. United States, 534 A.2d 936, 937 (D.C. 1987) (plastic vitamin pill bottle containing tinfoils of marijuana-laced PCP). An o fficer s tactile identification of a pill bottle, standing alone, doe s not give rise to probab le cause to seize the bottle or open it to reveal its conte nts. See Christmas, 314 A.2d at 479 ( Standing alone, the plain view of a simply suspicious-looking or unusual object which itself is not contraband, does not ju stify its seizure without a warrant. (quoting Thomas v. Superior Court, 99 Cal. Rptr. 647, 650 (Ct. App. 1972) (internal quotation om itted)); cf. Speight v. United States, 671 A.2d 442, 449 (D.C. 1996) (officer had no reason to believe the keys he felt in [appellant s] pocket were contraban d or a we apon ). A s we exp ressly noted in (Kenneth) Dickerson, it is only when an officer is presented with an ambiguous object that an officer s training and experience, including knowledge that the environment where the pat down takes place is a high crime area, can inform the officer s perception. 677 A.2d at 512. Likewise, when presented with a read ily recogniza ble object tha t has innoce nt as well as illicit uses, such as the medicine bottle in this case, the officer s training and experience 19 and other attendant circumstances can similarly inform his or her perception. See Christmas, 314 A.2d at 477 n.8. ( In determin ing the existe nce of pro bable cau se in warrantless search and seizure cases, the expertise of the officer in narcotics is generally regarded as an important consideration. ) Officer Harger testified, and the trial court credited, that he had been involved in numero us narcotics arrests and was familiar with the packaging of narcotics in this type of container, having arrested numerous people who have hidden narcotics in medicine bottles. See In re J.D.R., 637 A.2d at 850 (plain view of tip of ziplock bag together with [the officer s] knowledge, based on personal experience, that such bags were comm only used as drug contain ers sup ports pr obable cause) . Although there was no evidence presented that the traffic stop and subsequent patdown of appellant took place in a high crime area, as is often the situation in the cases cited, more than the mere tactile id entification o f a pill bottle inf ormed O fficer Ha rger s prob able cause determina tion. Altho ugh a fu rtive gesture is not sufficient standing alone to provide probable cause to believe a crime is being or has just been committed, Price, 429 A.2d at 517, appe llant s actions w ere significa nt as they related to the medicine bottle in his jacket pocket. First, appellant moved a newspaper to cover his abdomen as if attempting to conceal something. On observing this action the officer asked appellant to exit the vehicle to better control the situation, whereupon he immediately put his hands in his jacket pockets as he stepped out of the vehicle. Af ter complying with the office r s order to remove his hands 20 from the pockets and place them on the vehicle, appellant then tried to place his right hand in his right front pocket and was told again to keep his hands out of his pockets. Nevertheless, appellant once again tried to reach into his right front pocket. This conduct was not only simultaneous with appellant s encounter with the police, but on two occasions was in derogation of the officer s specific orders to keep his hand out of the p ocket. As the trial court n oted, the officers fe[lt] this medicine bottle in exactly the place that the defendant kept going to so that w as there w as extra susp icions that the y reasonably held that there could be contraband or something in that pocket based on the defen dant's ac tions. See Price, 429 A.2d at 517 (as a r esult of appellant s m ovemen ts, the officer was reaso nably justified in suspecting that appellant was attempting to conceal contraband or the instrumentality of a crime (quoting McGee v. United States, 270 A.2d 348 (D.C. 1970))). We recognize that there are fewer circ umstance s attendant to the officer s tactile identification of the medic ine bottle in this case than in some of the cited cases which concluded there w as prob able ca use. Those cases generally have had multiple atten dant facts in addition to the tactile identification of an object that is not contraband and the officer s knowledge that the o bject m ight be u sed to tra nsport a nd con ceal co ntraban d. See, e.g., Rushing, 935 S.W.2d at 31-32 (prior observation of appellant in illicit activity, high crime area, and officer s experienc e); Champion, 549 N.W.2d at 859 (object being detected in an unusual location, officer recognized appellant and aware of prior drug convictions, high drug 21 area, appellant s attempt to evade police, a nd off icer s ex perienc e). Such attendant facts are necessary to meet the caution we expressed in (Kenneth) Dickerson that [t]rial courts must be careful to assure that a police officer s immediately apparent recognition of a concealed drug package . . . is not too casually claimed or accepted, 677 A.2d at 512, as the p lain feel of objects legitimate in themselves traverses a fine line between reasonable suspicion and probab le cause . Nevertheless, although neither the off icer s recognition of the object in ap pellant s pocket as a medicine bottle that could be used to conceal drugs nor appellant s conduct independ ently establish pro bable cau se in this case, th e combin ation of the officer s pla in feel of the medicine bo ttle, the fact that the bottle was a large plastic containe r, the officer s experience with the pa ckaging o f narcotics in this kind of container and, most important, the defendant s numerous attempts to access the pocket where th e medicin e bottle was detected despite the off icer s m ultiple o rders to t he con trary, cf. Christmas, supra note 6, satisfy us that the officer could reasonably infer that the medicine bottle contained contraband and was thus authorized to s eize the me dicine bottle f rom app ellant s jacket p ursuant to th e plain feel exception to the warrant requirement. It is particularly telling that, even after appellant was being frisked by the officer, he continued to reach for the medicine bottle in his jacket pocket. Althoug h probab le cause im poses a stricte r requireme nt than reaso nable suspicion, it is not so demanding a standard as to have required more than became available to the 22 officer as he fr isked a ppellan t. Viewed against the officer s experience, appellant s conduct added enough information to cross the threshold from reasonable suspicion that appellant might have a weapon in his jacket pocket to probable cause that he had drugs in the medicine bottle felt in the pocket. We reject the argument that it was imp roper for th e officer to o pen the m edicine bo ttle after remov ing it fro m app ellant s p ocket. As the of ficer had p robable cause to believe that the medicine bottle contained contraband before he removed the bottle from app ellant s jacket, it follows tha t in the absence of additional information gained after he retrieved the bottle to dissuade him from that belief he had probable cause to arrest based on the belief that appellant p ossessed d rugs, perha ps (from th e size of the container) w ith the intent to distribute. That probable cause also justified the officer in opening the container as a search incident to a valid arrest. See Horton, 496 U.S. at 141 & n.11 (explaining that reliance on privacy concerns is misplaced when an exception to the search warrant requirement authorizes an officer with a lawful right of access to seize an item without a warrant, even if the item is a container); New York v. Belton, 453 U .S. 454, 460-61 (1981) (the search incident to lawful arrest exception to the warrant requirement justifies the infringement of any privacy interest the arrestee may have in a container found within the scope of the search authorized by the excep tion, even if the container is c losed); Rawlings v. Kentucky, 448 U.S. 98, 111 (1980) (once probable cause to arrest is established, it is not particularly important 23 that the search preceded the arrest rather than vice versa if the arrest followed quickly on the heels of the cha llenged sea rch ); cf. Knowles v. Iowa, 525 U.S. 113 (1998) (where officer chose not to arrest, but instead issued a citation for a traffic violation, there was no officer safety justification for search incident to arrest, nor was there concern about securing eviden ce of c rime). Affirmed.
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