dissenting.
The majority is correct in finding in its well-written and thoughtful opinion that Officer Wiederhold did not have probable cause to arrest Worley at the time he seized Wor-ley’s hand. And they are correct in holding the seizure of Worley’s hand and forcing it open constituted a “seizure” of Worley’s person and effects within the meaning of the Fourth Amendment. But I disagree with the majority’s conclusion that the search of Worley by force and the seizure of his effects was reasonable as part of a valid Terry1 stop.
The majority embarks on a dangerous path set to circumvent the clear mandate of the Fourth Amendment and article I, section 9 when they state, “Had Worley’s possession of the capsules been innocent ... the ambiguity [of Worley’s ‘suspicious’ conduct] presumably would have been quickly resolved during the Terry stop, with Worley thereafter free to go on his way.” Is this not simply another way of saying that innocent people should not mind being searched?
Officer Wiederhold’s actions and the majority’s apparent approval of them raise two areas of concern: (1) Whether this court is abandoning the “immediately apparent” doctrine set out by the United States Supreme Court; and (2) Whether a seizure based on reasonable suspicion, but not probable cause, involves the right to search for contraband when the officer does not fear for his safety. It is without even addressing either of these concerns that the majority finds the search and subsequent seizure of the contents of Worley’s hand valid as a Terry stop.
I agree with the majority that under Terry Officer Wiederhold violated no constitutional protection by initially detaining Worley. Where the majority and I part ways is with regard to the scope of this detention, which far exceeded the routine Terry stop and, instead, included a warrantless search of Worley’s hand and, then, an additional seizure of the contents in his hand. A lawful detention under Terry may embrace the right to seize Worley, but it does not embrace the right to force Worley’s hand open in order to determine whether Worley possessed contraband. This entailed conducting a search following the initial seizure of Wor-ley, which was not a brief, nonintrusive pat down for weapons as contemplated by the Supreme Court in Minnesota v. Dickerson,2
Other facts that could have justified the search of Worley’s hand and subsequent seizure of its contents are not present in this case. It must be remembered that the purpose of a limited weapons search following an investigative stop is not to discover evidence of a crime, but to allow the police officer to pursue the investigation without fear of vio*876lence.3 But in this case Officer Wiederhold made no pretense of searching Worley for weapons. His sole goal was to examine the capsules in Worley’s hand because he was not sure what kind of capsules Worley held. Furthermore, the capsules were not abandoned, nor did Worley fail to acquiesce to the officers’ authority because they did not give him instructions until after they had seized him. Finally, Officer Wiederhold’s testimony that he was uncertain about what Worley was holding in his hand made it clear that the capsules did not fall within the rule that the law violation must be readily apparent. There is, then, no claim that contraband was in plain view or that it was immediately apparent Worley possessed contraband. There is no suggestion the search was consensual because Officer Wiederhold had to force Worley’s hand open.
The majority relies on United States v. Sokolow4 for the proposition that a lawful Terry stop does not require less intrusive techniques than “the momentary seizure of appellant’s wrist followed by an immediate examination of the contents of his left hand.” I respectfully submit that the majority misreads Sokolow. Sokolow was attempting to leave an airport and haü a taxi when an officer grabbed Sokolow’s arm and moved Sokolow back onto the sidewalk. Sokolow was then escorted to the DEA office at the airport. Importantly, neither Sokolow nor his luggage was searched. Instead, Donker, the narcotics detector dog, sniffed the luggage and reacted to one of Sokolow’s bags. The officers obtained a search warrant before executing any search.
The Sokolow court does, indeed, hold that a Terry stop does not require less intrusive means than physical seizure of a person’s arm. Thus, Officer Wiederhold had the authority to seize Worley’s arm. But the Soko-low court was only addressing the issue of whether the DEA agent could lawfully physically detain Sokolow. It does not address the question of whether an officer had authority to forcibly search a detained suspect’s closed hand. The opinion in Sokolow does not suggest, nor should it be read to mean, that police officers may search a suspect by employing force when there is no element of fear for safety. Yet, the majority justifies Officer Wiederhold’s forcing Worley’s hand open by relying on this language from Soko-low.
Texas courts have recognized the rule laid down in Dickerson that “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” under Terry.5 In so holding, the Court required that the incriminating character of the contraband be “immediately apparent” during the frisk.6 Both the Dallas court and the Waco court have held that if the incriminating character of the object was not clear until the officer had opened, rubbed, or pinched the object, the officer exceeded the permissible scope of Terry and the searches were unconstitutional.7
In the case before us, Officer Wiederhold had to force Worley’s hand open “to get a better look” at the capsules so he could decide whether Worley possessed contraband. It is undisputed that this search of Worley’s hand was not undertaken as part of any weapons search pat-down. Consequently, while the majority is correct in holding Officer Wiederhold had the authority to seize Worley, this authority does not embrace the right to execute a warrantless search by force for contraband.
For these reasons, I respectfully dissent.
. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
. 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993).
. Davis v. State, 829 S.W.2d 218, 220 (Tex.Crim. App.1992) (op. on reh'g).
. 490 U.S. 1, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989).
. Dickerson, 508 U.S. at-, 113 S.Ct. at 2137, 124 L.Ed.2d at 346.
. Id.
. See id. at -, 113 S.Ct. at 2138, 124 L.Ed.2d at 346; Graham v. State, 893 S.W.2d 4, 8 (Tex. App.— Dallas 1994, no pet.); Campbell v. State, 864 S.W.2d 223, 226 (Tex.App.—Waco 1993, pet. ref’d).