PEOPLE
v.
CHAMPION
Docket No. 132469.
Michigan Court of Appeals.
Submitted September 15, 1993, at Lansing. Decided June 20, 1994, at 9:00 A.M.Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Michael D. Thomas, Prosecuting Attorney, and Edwin R. Brown, Assistant Prosecuting Attorney, for the people.
*625 Daniel D. Bremer, for the defendant on appeal.
Before: McDONALD, P.J., and SAWYER and MARILYN KELLY, JJ.
MARILYN KELLY, J.
Defendant appeals as of right from his convictions for possession of less than twenty-five grams of cocaine and as a habitual fourth felony offender. MCL 333.7403(2)(a)(v); MSA 14.15(7403)(2)(a)(v); MCL 769.12; MSA 28.1084. The judge sentenced him to five to fifteen years in prison. His sentence was made consecutive to one he was then serving for a different offense. On appeal, defendant argues error in the denial of his motion to suppress cocaine which he claims was improperly seized. He also urges that his sentence was disproportionate under People v Milbourn, 435 Mich. 630; 461 NW2d 1 (1990). We reverse.
I
Two Saginaw police officers, driving through a high crime and drug area of the city, saw a man standing alone on a street corner. The officer driving the car was a twenty year veteran. His partner had been on the force for approximately six months. Upon spotting the squad car, the man turned and ran down a side block. One of the officers later testified he believed the man shouted a warning to someone. The officers chased the man. On turning the corner, they saw two men running in the opposite direction and a third, defendant, walking or running from a car parked mid-block. He held his hands in the inside front of his sweatpants.
The officers detained him. One of the officers recognized defendant from previous weapons and drug arrests and knew he had a prison record. Defendant did not remove his hands from his *626 pants despite repeated instructions to do so. Fearing that defendant had a weapon, the officers performed a pat-down. One of the officers found a pill bottle in his groin area. The officer removed the bottle and, examining it, saw that it contained cocaine.
The officers arrested defendant for possession and performed an inventory search of the car. There, they found cocaine in the false bottom of a can of Fix-a-Flat.
Defendant twice moved to suppress the physical evidence, claiming that it had been improperly seized. Each time, based on the totality of the circumstances, the court concluded that the stop and search had been valid and the challenged evidence was admissible. However, at the second suppression hearing, which occurred at mid-trial, the judge found, contrary to his original opinion, that the veteran officer's chronicle of the stop was not credible. Rather, he found credible the considerably different version given by the rookie officer. Based on the rookie officer's testimony, the judge ruled that defendant had been seized the moment the officers got out of their car. They had ordered defendant to stop and had begun running after him. A reasonable person would not have believed himself free to leave at that point.
A jury convicted defendant of possession of less than 25 grams of cocaine. He then pled guilty as a habitual fourth offender and was sentenced.
II
Two issues must be resolved by our Court. First, whether this was an investigative stop or an arrest. Second, whether the scope of the search was proper. It should be noted that admissibility of the *627 cocaine depends on whether the police exceeded their authority to search, given the circumstances.
The Fourth Amendment of the United States Constitution and its Michigan counterpart guarantee the right of people to be secure against unreasonable searches and seizures. The right is subject to a few specifically established and well defined exceptions. US Const, Am IV; Const 1963, art 1, § 11; Thompson v Louisiana, 469 U.S. 17, 19-20; 105 S. Ct. 409; 83 L. Ed. 2d 246 (1984). One arises when a police officer observes behavior which leads him to conclude that a party has engaged, or is about to engage, in criminal activity. Then, the officer is permitted to stop the party and make reasonable inquiries regarding his suspicion. Terry v Ohio, 392 U.S. 1; 88 S. Ct. 1868; 20 L. Ed. 2d 889 (1968).
A constitutionally proper investigative stop must satisfy a two part test. United States v Cortez, 449 U.S. 411; 101 S. Ct. 690; 66 L. Ed. 2d 621 (1981). The totality of the circumstances must yield a particularized suspicion that the individual being investigated has been, is or is about to be, engaged in criminal activity. The totality is that as understood by a law enforcement officer. Id., 418. The suspicion must be reasonable and articulable. Terry, 21.
While an investigative stop may be valid under many circumstances, the scope of the search of the suspect's person incident to a Terry stop is strictly limited. The limitation is "to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby." Terry, 26.
In contrast to an investigative stop which requires a reasonable articulable suspicion that criminal activity is afoot, an arrest may take place solely where there is probable cause:
*628 "This Court repeatedly has explained that `probable cause' to justify an arrest means facts and circumstances within the officer's knowledge that are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense." [People v Shabaz, 424 Mich. 42, 58; 378 NW2d 451 (1985), quoting Michigan v DeFillippo, 443 U.S. 31, 37; 99 S. Ct. 2627; 61 L. Ed. 2d 343 (1979).]
We are persuaded that an investigative Terry stop was reasonable under the totality of the circumstances here. Particularized suspicion arose as a result of the following factors: (1) the area was a known drug crime area, (2) a man, seeing a marked police car, ran from sight around a corner, (3) as officers turned the corner, two men got out of a car parked midblock, (4) the passenger and the man at the corner ran away, (5) the driver made some movement away from the car, (6) he was known by the police to have previous drug and weapons convictions, (7) he held his hands inside the front of his sweatpants and (8) he refused several police orders to remove his hands from his sweatpants.
Defendant's behavior created a reasonable, articulable suspicion to permit a police officer to stop and investigate. Consequently, a patdown search for weapons was also permitted. See also Minnesota v Dickerson, 508 US ___; 113 S. Ct. 2130; 124 L. Ed. 2d 334 (1993); People v Nelson, 443 Mich. 626, 639; 505 NW2d 266 (1993).
However, despite the prosecutor's arguments to the contrary, we are not persuaded that the police had probable cause to arrest defendant. We acknowledge that the arrest occurred in a known drug crime area and that the parties had fled from a parked car upon seeing police officers in a marked car. We recognize, as well, that the police *629 officers knew defendant. But we do not believe that defendant's conduct created probable cause to arrest.
Probable cause to arrest exists if the facts available to the officer at the moment of arrest would justify a fair-minded person of average intelligence to believe that the suspected person has committed a felony. [People v Thomas, 191 Mich. App. 576, 579; 478 NW2d 712 (1991), citing People v Oliver, 417 Mich. 366, 374; 338 NW2d 167 (1983).]
In Nelson the police had observed defendants spend four minutes in a known drug house and had witnessed a controlled drug buy there a short time earlier. They had heard a person from the house comment that a runner had been sent to get more drugs for distribution. Even so, they did no more than conduct a Terry stop of defendants' vehicle.
Here, the prosecution cannot persuasively argue that the officers had anything more than a similar reasonable and articulable suspicion. The occupants of the car were not at a known drug sales location. They were not under surveillance. There was no controlled drug buy or conversation with an informant. The men had been observed at most for several seconds rather than minutes before the police detained defendant.
III
Since the stop here was merely a valid Terry stop, the police were not entitled to engage in a search as sweeping as that permitted incident to a valid arrest. The scope and validity of the search the officers conducted must be measured against a valid Terry patdown.
The United States Supreme Court recently concluded *630 that police officers may seize nonthreatening contraband detected during a protective patdown permitted by Terry; however, the search must stay within the bounds permitted by Terry. Minnesota v Dickerson, 508 US ___, ___; 124 L. Ed. 2d 344. The Court clearly articulated what quickly became known as the "plain feel" exception to the warrant requirement, something analogous to the "plain view" exception. It is defined in Dickerson:
If a police officer lawfully pats down a suspect's outer clothing and feels an object whose contour or mass makes its identity immediately 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 that inhere in the plain view context. [Id., 508 US ___; 124 L. Ed. 2d 346.]
This is the first time our appellate Court has been requested to apply the "plain feel" exception to the warrant requirement. We conclude that, under the circumstances of this case, while an investigative stop was permissible, the officers exceeded the scope of a Terry patdown. The "plain feel" exception developed in Dickerson cannot save the drugs seized during the patdown.
In Dickerson, a police officer patted down a suspect and ascertained that he had no weapon. In the process, he touched a rocklike object inside the suspect's pocket and suspected it to be cocaine. In order to make a further determination about the object, the officer examined it with his fingers. As it slid, he felt it to be a lump of crack cocaine packaged in cellophane.
The U.S. Supreme Court acknowledged that immediately identifiable contraband may be seized under the "plain feel" exception. However, because *631 the officer had to manipulate the unseen object to conclude that it was cocaine, his search exceeded both the bounds of Terry and the "plain feel" exception. Dickerson, 508 US ___; 124 L. Ed. 2d 347.
Similarly, in this case, the officer who searched defendant testified that he felt a pill bottle in defendant's groin. He claimed that he recognized this as a method by which cocaine was transported. However, in order to make the determination that this particular pill bottle contained cocaine, he had to remove it from defendant's person and visually inspect it.
We are struck by a distinction the Dickerson Court drew in discussing the "plain view" exception which seems particularly relevant here:
Under that doctrine, if police are lawfully in a position from which they view an object, if its incriminating character is immediately apparent, and if the officers have a lawful right of access to the object, they may seize it without a warrant. See Horton v California, 496 U.S. 128, 136-137 [110 S. Ct. 2301; 110 L. Ed. 2d 112] (1990); Texas v Brown, 460 U.S. 730, 739 [103 S. Ct. 1535; 75 L. Ed. 2d 502] (1983) (plurality opinion). If, however, the police lack probable cause to believe that an object in plain view is contraband without conducting some further search of the object i.e., if "its incriminating character [is not] `immediately apparent,'" Horton, supra, at 136 [110 S. Ct. 2308; 110 L. Ed. 2d 123] the plain-view doctrine cannot justify its seizure. Arizona v Hicks, 480 U.S. 321 [107 S. Ct. 1149; 94 L. Ed. 2d 347] (1987). [Id., 508 US ___; 124 L. Ed. 2d 345.]
In this case, it is clear that the patdown was proper under Terry. However, we find it impossible to conclude that the incriminating nature of a pill bottle is immediately apparent. In fact, the police officer was unable to make this determination *632 until he withdrew it from defendant's pants and examined it visually so as to conclude that it contained cocaine. Merely from feeling the contours of a pill bottle, the officer was able to conclude that defendant carried a pill bottle, not that he carried contraband. The police officer claimed that people often carry drugs in pill vials and conceal them on their body. However, it was his visual inspection of the pill bottle, after removing it from defendant, rather than its "plain feel" that revealed the contents to be cocaine.
In Dickerson, the Supreme Court concluded that the police officer exceeded the "plain feel" exception when he manipulated the object with his fingers in order to decide what it was. Here, the officer could not make a determination of the contents of the bottle without removing it from defendant and visually inspecting it. Such visual inspection also exceeds the "plain feel" exception.
We note that a closed container may contain any number of innocent and legal items. A closed container generally requires visual inspection to determine its contents. We do not gainsay the considerable knowledge and experience officers possess in assessing situations and reasonably suspecting the need to stop, question and patdown citizens under Terry. However, their authority to engage in these actions does not justify a search of the scope involved here. The "plain feel" doctrine cannot be extended to permit police, during a Terry protective patdown, to rummage on a suspect's body exploring any container which, by feel, they deem suspicious.
The trial court erred in failing to suppress the cocaine found on defendant. It erred in admitting the drugs in the Fix-a-Flat can found in defendant's car. The police were not entitled to inventory the contents of defendant's car. While a brief *633 investigative stop was valid under Terry, the police lacked probable cause to arrest defendant until they discovered the contents of the pill bottle in his pants. Since we have concluded that the pill bottle was improperly seized and must be suppressed, the police lacked probable cause to arrest defendant. Lacking probable cause to arrest him, they were without authority to impound and inventory the contents of his car. South Dakota v Opperman, 428 U.S. 364; 96 S. Ct. 3092; 49 L. Ed. 2d 1000 (1976); People v Toohey, 438 Mich. 265; 475 NW2d 16 (1991). It is unnecessary to reach defendant's claim that his sentence was disproportionate under Milbourn.
Reversed.