People v. Champion ( 1996 )

Mallett, J.

In this case, we consider for the first time the “plain feel” exception to the warrant requirement as adopted by the United States Supreme Court in Minnesota v Dickerson, 508 US 366; 113 S Ct 2130; 124 L Ed 2d 334 (1993). In particular, this case requires us to articulate the degree of certainty required that an object felt during a patdown search is contraband before a police officer may remove that object from the person being searched. We disagree with the Court of Appeals holding that Dickerson requires a level of suspicion approaching near certainty. Therefore, we reverse that Court’s holding that cocaine found in a pill bottle on the defendant’s person during a patdown search was inadmissible.

i

FACTS

On the evening of April 9, 1990, two uniformed Saginaw police officers were patrolling near North Fourth and Kirk Streets, an area known to them as a high drug crime area, when they saw a man begin to run upon seeing their marked patrol car, and disappear around a comer. As the officers turned their patrol car around the same comer, the man veered off behind a store. The officers then observed two other men who, appearing to sight the patrol car, got out of their car that was parked midblock. The passenger ran from the scene, while the driver began walking away from the car with his hands tucked inside the front of his sweatpants.

The officers parked diagonally in front of the vehicle. Officer John Todd, a twenty-year veteran of the Saginaw police force, recognized the driver as defendant Kenneth Ray Champion from previous drug and weapons arrests. Officer Todd knew that Mr. Champion had a prison record.

The officers briefly chased after Mr. Champion while ordering him to stop and to remove his hands from his sweatpants. They gave these orders at least two and possibly three or four times. Mr. Champion did not comply until the officers had caught up to him. Officer Todd then conducted a patdown search for weapons. He felt what he immediately identified as a pill bottle tucked inside Mr. Champion’s sweatpants, between his legs in the groin region. From his law enforcement experience with drugs, Officer Todd testified that he knew that controlled substances were often carried in such pill bottles. Believing that the pill bottle contained contraband, specifically controlled substances, Officer Todd removed it, opened it, and found that it contained cocaine.¹

The officers placed Mr. Champion under arrest and further searched him. They seized $584.23 from his right pants pocket, and $14 and a pager from his left pants pocket. When the officers conducted an inventory search of the car, they found three packets of cocaine in the false bottom of a can of Fix-a-Flat.²

Defendant moved to suppress the physical evidence before trial and again midway through trial, arguing that the cocaine found in the pill bottle and in the can of Fix-a-Flat had been improperly seized. Both times the trial court ruled that, on the basis of the totality of the circumstances, the challenged evidence was admissible.

A jury convicted defendant of possession of less than twenty-five grams of cocaine. MCL 333.7403 (2)(a)(v); MSA 14.15(7403)(2)(a)(v). He then pleaded guilty of being an habitual offender, fourth offense. MCL 769.12; MSA 28.1084. The trial court sentenced him to five to fifteen years in prison.

The Court of Appeals reversed on the basis that the trial court erred in failing to suppress the cocaine found in the pill bottle in the defendant’s sweatpants. While finding the investigatory stop reasonable under Terry v Ohio, 392 US 1; 88 S Ct 1868; 20 L Ed 2d 889 (1968), the Court found that the officers did not have probable cause to arrest when they felt the pill bottle during the patdown search. Thus, removing and opening the pill bottle was not authorized as a search incident to arrest. Further, the Court found that because it could not have been “immediately apparent” to Officer Todd that the pill bottle found in defendant’s groin region was contraband, removing and opening the pill bottle was not permissible under the “plain feel” doctrine as articulated by the United States Supreme Court in Minnesota v Dickerson, supra. The Court further held that the cocaine found in the can of Fix-a-Flat was improperly seized because, lacking probable cause to arrest, the inventory search of the automobile was improper. 205 Mich App 623, 631; 518 NW2d 518 (1994).

n

DISCUSSION

The Fourth Amendment of the United States Constitution and the analogous provision in Michigan’s Constitution guarantee the right of the people to be free from unreasonable searches and seizures.³ Searches and seizures conducted without a warrant are unreasonable per se, subject to several specifically established and well-delineated exceptions. Katz v United States, 389 US 347, 357; 88 S Ct 507; 19 L Ed 2d 576 (1967). The United States Supreme Court has carved out these exceptions by balancing an individual’s privacy interests against the government’s interests in the given circumstances. Three exceptions to the warrant requirement are relevant to our review in the present case. Each will be discussed in turn.

A

STOP AND FRISK

Police officers may make a valid investigatory stop if they possess “reasonable suspicion” that crime is afoot. Terry v Ohio, supra. Reasonable suspicion entails something more than an inchoate or unpar-ticularized suspicion or “hunch,” but less than the level of suspicion required for probable cause. United States v Sokolow, 490 US 1; 109 S Ct 1581; 104 L Ed 2d 1 (1989).

A valid investigatory stop must be justified at its inception and must be reasonably related in scope to the circumstances that justified interference by the police with a person’s security. Justification must be based on an objective manifestation that the person stopped was or was about to be engaged in criminal activity as judged by those versed in the field of law enforcement when viewed under the totality of the circumstances. The detaining officer must have had a particularized and objective basis for the suspicion of criminal activity. People v Shabaz, 424 Mich 42; 378 NW2d 451 (1985).

An officer who makes a valid investigatory stop may perform a limited patdown search for weapons if the officer has reasonable suspicion that the individual stopped for questioning is armed and thus poses a danger to the officer. Terry, supra. Terry strictly limits the permissible scope of a patdown search to that reasonably designed to discover guns, knives, clubs, or other hidden instruments that could be used to assault an officer. Adams v Williams, 407 US 143, 146; 92 S Ct 1921; 32 L Ed 2d 612 (1972).

Defendant Champion does not challenge his initial detention or patdown search. Without belaboring the issue, we agree with the Court of Appeals ruling that an investigative stop and patdown search for weapons was reasonable under the totality of the circumstances.⁴

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 comer, (3) as officers turned the comer, two men got out of a car parked midblock, (4) the passenger and the man at the comer 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 366; 113 S Ct 2130; 124 L Ed 2d 334 (1993); People v Nelson, 443 Mich 626, 639; 505 NW2d 266 (1993). [205 Mich App 628.]

Having concluded that the stop and frisk were reasonable, we are compelled by the dissent to point out that this is not the controlling issue. We did not grant leave in this case to hear again the relative merits of the Terry doctrine. As we have already noted, defendant conceded that the initial stop and frisk were reasonable. The only relevance Terry has to the outcome of this case is to whether the frisk of defendant exceeded that necessary to discover the existence of a weapon. We explain later that it did not. The dissent’s focus on Terry and its progeny, however, goes far beyond this narrow issue.⁵

B

PLAIN FEEL

The plain feel exception to the warrant requirement adopted by the United States Supreme Court in Minnesota v Dickerson, supra, allows the seizure without a warrant of an object felt during a legitimate patdown search for weapons when the identity of the object is immediately apparent and the officer has probable cause to believe that the object is contraband. In adopting the plain feel exception, the Court in Dickerson analogized to the plain view doctrine. To understand the plain feel exception to the warrant requirement, it is necessary to first understand the plain view doctrine.

l

PLAIN view

The plain view doctrine allows police officers to seize, without a warrant, items in plain view if the officers are lawfully in a position from which they view the item, and if the item’s incriminating character is immediately apparent. Horton v California, 496 US 128; 110 S Ct 2301; 110 L Ed 2d 112 (1990);⁶ People v Cooke, 194 Mich App 534; 487 NW2d 497 (1992). A fundamental characteristic of the doctrine is that it is exclusively a seizure rationale. No searching, no matter how minimal, may be done under the auspices of the plain view doctrine. See, e.g., Arizona v Hicks, 480 US 321; 107 S Ct 1149; 94 L Ed 2d 347 (1987). Another fundamental characteristic of the doctrine is that, unlike most exceptions to the warrant requirement, it is not predicated on exigent circumstances. Instead, it is permitted in the interest of police convenience. Coolidge v New Hampshire, 403 US 443; 91 S Ct 2022; 29 L Ed 2d 564 (1971). It would be unreasonably inconvenient to require the police, once they have made a valid intrusion and have discovered probable evidence in plain view, to leave, obtain a warrant, and return to resume a process already in progress.

The requirement that the item’s incriminating character be “immediately apparent” in order for the item to be properly seized was explained and clarified in Texas v Brown, 460 US 730; 103 S Ct 1535; 75 L Ed 2d 502 (1983), in which the Court noted:

Decisions by this Court since Coolidge indicate that the use of the phrase “immediately apparent” was very likely an unhappy choice of words, since it can be taken 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. [Id. at 741.]

In Brown, a police officer saw a green party balloon, knotted near the tip, drop from a man’s hand to the seat during a valid traffic stop. The officer also saw plastic vials, quantities of loose white powder, and an open bag of party balloons in the glove compartment. The officer seized the balloon and arrested the driver. Later testing revealed that the balloon contained heroin.

The lower court in Brown required near certainty that the balloon was seizable. The United States Supreme Court disagreed, stating that “immediately apparent” means that without further search the officers have “probable cause to believe” the items are seizable. Id. at 741-742.

While Brown was a plurality decision, the United States Supreme Court later made clear in Arizona v Hicks, supra, that probable cause is the level of suspicion required in the plain view context. In Hicks, officers validly entered a “squalid and otherwise ill-appointed” apartment. 480 US 323. They noticed some expensive stereo equipment that seemed out of place. An officer, suspecting it was stolen, moved the equipment so that he could read the serial numbers on it. Police headquarters later confirmed that the equipment was stolen. The Court held that moving the equipment to get at the serial numbers was a search, and thus went beyond the permissible scope of the plain view doctrine. The equipment was not validly seized because the officer lacked probable cause to believe it was seizable before moving it. The “immediately apparent” language was not satisfied because the officer could not form probable cause upon viewing the object, but had to manipulate the object, going beyond the authorized plain view search.

2

DICKERSON

The Dickerson Court began its analysis by reviewing its decision in Michigan v Long, 463 US 1032; 103 S Ct 3469; 77 L Ed 2d 1201 (1983). The Long Court held:

“If while conducting a legitimate Terry search of the interior of the automobile, the officer should, as here, discover contraband other than weapons, he clearly cannot be required to ignore the contraband, and the Fourth Amendment does not require its suppression in such circumstances.” [Dickerson, supra at 374, quoting Long, supra at 1050.]

The holding in Long was justified under the plain view doctrine that states that 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. The Court in Dickerson, supra at 375, further noted:

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 . . . — the plain-view doctrine cannot justify its seizure. Arizona v Hicks, 480 US 321; 107 S Ct 1149; 94 L Ed 2d 347 (1987).

Thus analogizing to the plain view doctrine, the Court articulated the standard to be applied in the plain feel context:

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.

. . . Regardless of whether the officer detects the contraband by sight or by touch, however, the Fourth Amendment’s requirement that the officer have probable cause to believe that the item is contraband before seizing it ensures against excessively speculative seizures. [Dickerson, supra at 375-376 (emphasis added).]

In Dickerson, cocaine seized from the defendant’s jacket pocket was suppressed because the patdown search exceeded the scope of Terry. The officer detected a small lump in the defendant’s jacket pocket during the patdown. However, while keeping within the bounds of the lawful search, the officer did not have probable cause to believe that the lump was contraband. It was not until the officer slipped his hand into the defendant’s pocket, manipulating the object with his fingers, that he determined that the object was a rock of cocaine. In other words, it was not immediately apparent to the officer that the object felt during the lawful patdown was contraband. Probable cause was not formed until the search went beyond the scope of the patdown authorized by Terry.

In this case, we adopt the plain feel exception to the warrant requirement as articulated in Dickerson. The standard to be applied in Michigan for items discovered during a patdowm search is the federal standard.⁷ Specifically, an object felt during an authorized patdown search may be seized without a warrant if the item’s incriminating character is immediately apparent, i.e., if the officer develops probable cause to believe that the item felt is contraband before going beyond the legitimate scope of the patdown search.

3

THE COURT OF APPEALS DECISION

The Court of Appeals in the present case failed to apply the probable cause standard as announced in Dickerson. Instead, misconstruing Dickerson’s “immediately apparent” language, the Court required a degree of suspicion that approached near certainty.⁸ This is evident in the following excerpt from the Court of Appeals opinion:

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 until he toithdrew 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. [205 Mich App 631-632 (emphasis added).]

Just as in the plain view context, the “immediately apparent” qualification in Dickerson does not require a higher degree of certainty. Rather, the degree of certainty required for plain feel seizures, just as for plain view seizures, is probable cause. The following explanation by the Court of Special Appeals of Maryland is instructive in this regard:

In Minnesota v Dickerson, 508 US [366, 375]; 113 S Ct 2130, 2137; 124 L Ed 2d 334, 345 (1993), the Supreme Court, relying on Arizona v Hicks, expressly treated “probable cause” and the state of being “immediately apparent” as synonymous terms within a single sentence.

The phrase “immediately apparent” has, perhaps, contributed to our understanding of the probable cause criterion in one respect. It has helped to focus attention on the issue of when the probable cause must have accrued. It does not remotely mean that when an officer legitimately sees an object in plain view, the “light bulb” in the officer’s head must go on instantaneously. The thinking process may be more deliberative than that, as the officer carefully forms a hypothesis, rolls the possibilities and probabilities back and forth . . . and ultimately concludes that, indeed, he has probable cause.

What it means, rather, is that the data-gathering process, as opposed to the conclusion-drawing process, must be completed before the justification for the valid intrusion— such as the search for guns and gunmen in Hicks, the frisk for weapons in Minnesota v Dickerson, or the voluntary consent in the case before us — runs out. Any further and incremental intrusion beyond that point, such as the lifting of stereo equipment from a table top in Hicks after the search for guns had been completed or the slithering of an object through the fingers of the policeman in Minnesota v Dickerson after the frisk for weapons had been completed, is invalid and cannot, therefore, serve as the prior valid intrusion necessary for a . . . seizure. Once the purpose of the prior intrusion has been served, the validity of that intrusion is at an end. Any additional clues, gathered thereafter, will be per se the products of what has by then degenerated into an invalid intrusion. [State v Jones, 103 Md App 548, 565-566; 653 A2d 1040 (1995).]

Other cases decided after Dickerson discussing the plain feel exception confirm that probable cause is the applicable standard. In State v Buchanan, 178 Wis 2d 441; 504 NW2d 400 (1993), the Wisconsin Court of Appeals upheld a trial court’s denial of a motion to suppress. In that case, the arresting officer testified that he immediately recognized the incriminating character of a plastic bag found in the defendant’s waistband during a patdown search. The court did not require knowledge or near certainty that the bag contained contraband. Instead, the court reasoned, “[g]iven what the officer knew about the storage of cocaine, his conclusion about the character of the plastic baggie appears reasonable.” Id. at 450.

Similarly, in State v Wilson, 112 NC App 777, 781; 437 SE2d 387 (1993), the court noted, that the resolution of whether the incriminating character of a lump felt in the defendant’s pocket was “immediately apparent” was made difficult “because the Supreme Court failed, for whatever reason, to provide a definition or a test for the phrase ‘immediately apparent.’ ” After reviewing other courts’ interpretations of the term, the court concluded that “we need only determine whether [the officer] had probable cause to believe that the contraband he felt during his pat down search was cocaine.” Id. at 782.

4

APPLICATION OF THE DICKERSON STANDARD

In contrast to the facts in Dickerson, Officer Todd immediately felt what he described as a pill bottle tucked inside defendant’s groin region.⁹ Officer Todd did not further manipulate or grope the object in order to determine its incriminating character.¹⁰

With due deference to the trial court’s findings, we conclude that, upon feeling the pill bottle, under a totality of the circumstances, the officer had probable cause to believe that the pill bottle contained contraband.* ¹¹ The following facts support this conclusion: (1) the defendant got out of his car and walked away upon seeing the patrol car and uniformed officers,¹² (2) Officer Todd recognized defendant and knew of his previous drug and weapons convictions, (3) the officers were in a high drug crime area, (4) the defendant had his hands tucked inside the front of his sweatpants while walking away from the officers and refused to take his hands out of his sweatpants after being repeatedly asked to do so, and (5) Officer Todd, having had twenty years experience as a police officer, was aware that contraband, and in particular controlled substances, were often carried in the type of pill bottle that he felt on defendant’s person. We cannot imagine that any reasonable person in Officer Todd’s position, given all the above circumstances, could have concluded that Mr. Champion was carrying prescription medication, or any other legitimate item, in the pill bottle in his groin region.¹³

We emphasize that courts applying the plain feel exception must appreciate the totality of the circumstances in the given case. Dickerson requires an in-depth examination of probable cause. We therefore caution that our holding is limited to the facts before us. For instance, 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. It is only under the totality of the circumstances before us, i.e., the defendant’s furtive behavior, his refusal to remove his hands from his sweatpants, the officer’s recognition of defendant, and his knowledge of defendant’s past involvement in drug crimes, that we find that removal of this particular pill bottle was authorized.

The dissent bemoans that defendant’s constitutional rights are jettisoned merely because he happens to live in a poor neighborhood and has a police record and because he engaged in “the simple act of putting his hands down his pants . . . .” Post at 142. The dissent also complains that we rely on the flight of others to infer guilt on the part of the defendant. We again emphasize that it is only under the totality of the circumstances that seizure of this pill bottle is authorized.

We note that the Court of Criminal Appeals of Tennessee reached the same conclusion upon facts similar to this case. In State v Bridges, 1995 Term Crim App LEXIS 1006 (December 28, 1995), the officer was acting on a tip from a reliable informant that the defendant, Bridges, was at a certain location selling crack cocaine. The officer found the defendant at that location. While frisking him for weapons, the officer touched the defendant’s right jacket pocket and “ ‘immediately recognized a pill bottle . . . .’ ” Id. at *4. The officer testified that he knew such bottles were frequently used by dealers to hold their crack cocaine. The officer removed the pill bottle. After concluding that the officer was engaged in a valid frisk when he felt the pill bottle, and that he immediately recognized the object as a pill bottle, the court focused on whether the officer had probable cause to conclude that the pill bottle was contraband.¹⁴

In the instant case, [the officer] received information from an informant that the appellant was selling crack cocaine at Preacher’s Place and was carrying cocaine on his person. [The officer] was also aware that the appellant had previously been convicted of a drag-related offense. While [the officer] was conducting a lawful frisk of the appellant, he encountered an object which he “immediately recognized” to be a pill bottle. [The officer] testified that, based on his experience, he immediately “knew that it was the kind that a lot of other crack dealers will use to keep their crack in.” We conclude that [the officer] possessed probable cause to believe that the pill bottle contained crack cocaine. Therefore, the seizure of the pill bottle from the appellant’s person was valid. [Id. at *18-19.]

In the present case, because the patdown did not exceed the scope of Terry, i.e., it was immediately apparent during the authorized patdown that Mr. Champion was carrying a pill bottle in his groin region, and because there was probable cause that the object felt during the patdown contained contraband, the plain feel exception to the warrant requirement authorized removal of the pill bottle from Mr. Champion’s sweatpants.

While the plain feel exception authorized removal of the pill bottle, the question whether the officer was authorized to open the bottle without a warrant remains.

c

SEARCH INCIDENT TO ARREST

A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment. By statute, an arresting officer must possess information demonstrating probable cause to believe that an offense has occurred and that the defendant committed it. MCL 764.15; MSA 28.874. Probable cause to arrest exists where the facts and circumstances within an officer’s knowledge and of which he has reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed. Brinegar v United States, 338 US 160, 175; 69 S Ct 1302; 93 L Ed 1879 (1949).

A search of a person incident to an arrest requires no additional justification. United States v Robinson, 414 US 218; 94 S Ct 467; 38 L Ed 2d 427 (1973); People v Chapman, 425 Mich 245; 387 NW2d 835 (1986). The permissible scope of a search incident to arrest extends to the opening of containers found within the control area of the arrestee. Robinson and Chapman, supra. See also New York v Belton, 453 US 454; 101 S Ct 2860; 69 L Ed 2d 768 (1981).

A search conducted immediately before an arrest may be justified as incident to arrest if the police have probable cause to arrest the suspect before conducting the search. Rawlings v Kentucky, 448 US 98; 100 S Ct 2556; 65 L Ed 2d 633 (1980).¹⁵

In a unanimous opinion authored by Justice Levin, this Court held that a search without a warrant of persons whom the police had probable cause to arrest was proper, even though the persons searched had not been formally arrested. People v Arterberry, 431 Mich 381; 429 NW2d 574 (1988). Justice Levin reasoned:

Since the officers had probable cause to arrest Arterberry and the other occupants, the search was proper: had the occupants been arrested, they could have been searched incident to the arrest. The validity of the search is not negated by the failure of the officers to arrest the occupants. [M at 384. P¹⁶

The search of a container preceding a formal arrest can qualify as a search incident to arrest if probable cause for the arrest existed before the container was searched. See, e.g., State v Roach, 234 Neb 620; 452 NW2d 262 (1990). However, a search of a container cannot be justified as being incident to an arrest if probable cause for the contemporaneous arrest was provided by the fruits of that search. Smith v Ohio, 494 US 541; 110 S Ct 1288; 108 L Ed 2d 464 (1990).

These principles apply to the opening of the pill bottle retrieved from defendant Champion’s sweatpants. The officer had probable cause to arrest before he opened the pill bottle. As explained in our earlier analysis, the officer had probable cause to believe that Mr. Champion was carrying contraband even before removing the pill bottle. The officer’s suspicion heightened once he retrieved the bottle and visually verified its identity. To reiterate, the officer formed probable cause to arrest on the basis of the defendant’s furtive behavior after seeing the marked patrol car, defendant’s refusal to remove his hands from his sweatpants, the officer’s recognition of defendant from defendant’s past involvement in drug crimes, the finding of the pill bottle in defendant’s groin region, and the officer’s knowledge that illicit substances were frequently carried in such a manner.

Because probable cause existed before the bottle was opened, and because the bottle was in “the control area” of defendant when seized, the opening of the pill bottle was authorized as a search incident to arrest.¹⁷

m

CONCLUSION

We hold that the cocaine found in the pill bottle in Mr. Champion’s sweatpants was properly seized. When viewed in the light of the totality of the circumstances, the officers had reasonable suspicion to stop Mr. Champion. Further, the patdown search that revealed the pill bottle was reasonable and did not exceed the scope authorized by Terry. During the patdown, the officer felt what he immediately identified as a pill bottle in the groin region of defendant Champion’s sweatpants. On the basis of the totality of the circumstances, the officer had probable cause to suspect that the bottle contained contraband in the form of a controlled substance, and thus was authorized under the plain feel exception to remove the bottle. Having probable cause to believe that Mr. Champion was unlawfully in possession of a controlled substance, the officer was authorized to open the pill bottle under the search incident to arrest exception to the warrant requirement. For these reasons, we reverse the Court of Appeals ruling that the cocaine found in the defendant’s possession was unlawfully seized.

Reversed.

Boyle, Riley, and Weaver, JJ., concurred with Mallett, J.

1 The brown, plastic pill bottle contained a white powder, that upon subsequent testing was found to be cocaine.

2 These facts are primarily drawn from the trial court’s findings at the midtrial suppression hearing. At that hearing, the trial court found Officer Todd’s testimony to be less credible than the testimony of his rookie partner, Officer Vern Chontos. The two officers gave a somewhat different version of events. Their accounts differed in how the patrol car was parked, how the officers chased and approached Mr. Champion, and the direction Mr. Champion walked after leaving the car. These differences led the trial court to find that the officers seized Mr. Champion at an earlier point than the court first determined at the pretrial hearing. These differences are not crucial to our analysis.

3 The Fourth Amendment provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated .... [US Const, Am IV.]

Michigan’s analogous provision states:

The person, houses, papers and possessions of every person shall be secure from unreasonable searches and seizures. No warrant to search any place or to seize any person or things shall issue without describing them, nor without probable cause, supported by oath or affirmation. The provisions of this section shall not be construed to bar from evidence in any criminal proceeding any narcotic drug, firearm, bomb, eocplosive or any other dangerous weapon, seized by a peace officer outside the curtilage of any dwelling house in this state. [Const 1963, art 1, § 11 (emphasis added).]

This Court, in People v Nash, 418 Mich 196; 341 NW2d 439 (1983), explained that the antiexclusionary provision in Const 1963, art 1, § 11, emphasized above, does not necessarily preclude this Court from developing evolving standards of reasonableness. Nash further explained, however, that the history and plain import of the provision suggest that the Michigan Constitution should not be construed to provide greater remedy for search and seizure violations than the federal constitution unless there is'a compelling reason to do so. See also Sitz v Dep’t of State Police, 443 Mich 744; 506 NW2d 209 (1993).

4 Contrary to the dissent’s assertion, we do not “[without analysis .. . announce! ] that the investigative stop was supported by a ‘reasonable particularized suspicion.’ ” Post at 121, n 3. Rather, we agree with the Court of Appeals finding and analysis that there was reasonable particularized suspicion for the stop based on the totality of the circumstances.

5 A significant portion of the dissent concerns the propriety of the Terry doctrine as argument against the adoption of the plain feel exception. The dissent’s tired and almost shrill insistence that Terry’s “evils” should somehow dictate our decisions whether to adopt the plain feel doctrine is misplaced. Its litany of the parade of horribles possible under Terry detracts from the proper focus on the plain feel doctrine as a separate justification for seizure of contraband felt during an authorized patdown. The dissent’s focus on Terry in this regard is also curious in light of its author’s previous opinion in People v Nelson, supra, which upheld the legitimacy of a Terry stop in part on the basis of the modes and patterns of behavior of certain kinds of lawbreakers.

6 A third requirement, that officers discover the items inadvertently, was originally required by the United States Supreme Court’s plurality opinion in Coolidge v New Hampshire, 403 US 443; 91 S Ct 2022; 29 L Ed 2d 564 (1971). The Court later rejected this “inadvertence requirement” in Horton.

7 Defendant urges us to adopt a requirement that contraband be discovered inadvertently during a patdown in order to be seizable. We decline to do so. Dickerson does not impose an inadvertence requirement. Absent a compelling reason, we follow the federal standard when interpreting Michigan’s search and seizure provision. See n 3. We find there to be no compelling reason here for us to depart from the federal standard. Further, we believe that an “inadvertence” requirement would afford no greater protection. Such a requirement is purely subjective and could easily be overcome by an officer’s claim that discovery of contraband was not a motive behind the patdown search. The requirements of Terry, that the patdown be reasonable and of a scope limited to that designed to discover weapons, are sufficient to protect against arbitrary pretextual searches.

8 We note that other courts have similarly misconstrued Dickerson’s “Immediately apparent” language. See United States v Ross, 827 F Supp 711 (SD Ala, 1993) (the incriminating character of a matchbox found in the defendant’s crotch during a lawful patdown was not immediately apparent and thus did not satisfy Dickerson’s “knowledge requirement”); State v Parker, 622 So 2d 791 (La App, 1993) (the removal of a matchbox containing contraband was not allowed under Dickerson because the identity of the contraband was not readily apparent); United States v Winter, 826 F Supp 33 (D Mass, 1993) (the plain feel exception did not apply where the arresting officer repeatedly testified that he did not “know” the incriminating character of the contraband until he removed it).

Ross and Parker, supra, also imply that the objects felt were not seiza-ble because they were not themselves contraband, but instead were objects thought to contain contraband. We disagree with the distinction between the plain feel of contraband versus the plain feel of an object containing contraband. Such a distinction should be immaterial where probable cause exists and would serve only to encourage better packaging of illicit dings.

In this regard, we agree with Judge O’Connell, dissenting in People v Massey, 215 Mich App 639, 645-647; 546 NW2d 711 (1996). Judge O’Connell wrote specifically to explain why the present case was wrongly decided by the Court of Appeals:

In Champion, the suspicious object was a pill bottle that the officer felt in defendant’s groin area during a Terry patdown search. This Court pointed out that “[mjerely 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. . . . [I]t 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.” Champion, supra, p 632.

I agree that the item that was “immediately apparent” was a pill bottle and that, in and of itself, this would not give a police officer probable cause to search. However, a pill bottle located in a person’s groin does give the police officer probable cause to search. A police officer of reasonable caution would be justified in removing the pill bottle from defendant’s groin.

Applying the reasoning of the Champion majority to the following hypothetical illustrates its flawed reasoning: Police patdown a suspect and feel a gun holster (the container) strapped to the suspect’s leg. Applying the Champion logic, this is not probable cause to search, because it is not “immediately apparent” that the suspect has a gun. It is only immediately apparent that he has a holster. This logic is flawed and could have very serious ramifications.

The correct application would be to consider the totality of the circumstances of each situation. Considering the totality of the circumstances surrounding Champion and the present case reveals no violation of the Fourth Amendment of the United States Constitution. I would find that feeling a “pill bottle in defendant’s groin” or a holster strapped to a suspect’s leg, although both are containers, does give the police officer probable cause to search. However, a pill bottle in a suspect’s purse is a substantially different issue.

We agree with Judge O’Connell and disagree with the dissent’s view that Dickerson requires that the object felt be contraband rather than contain it.

9 Officer Todd testified at the pretrial hearing that from his “personal experience of dealing with drugs, ah, for the past twenty years, and knowing that that’s how the, ah, substance is — is carried and packaged, I, ah, removed the pill bottle from his pants, and seen it contained, ah, white powder.”

Later, at the midtrial suppression hearing, Officer Todd testified:

Q. Officer Todd, can you describe the procedures you followed when you searched the defendant’s person, please.

A. I simply patted down the outer clothing of the defendant to check for any possible weapons, being aware of Mr. Champion’s history and the fact that he wouldn’t remove his hands from inside his pants, I mean, for obvious reasons.

Q. Did you think this was anything out of the ordinary?

A. I felt for my own personal safety that I should — I should pat him down.

Q. Okay. At the time you were patting him down, that was his outer clothing, would that be true?

A. That’s correct.

Q. And did you feel anything out of the ordinary at that time?

A. Yes, I felt a pill bottle stuck down between his legs.

Q. Did you know for sure that this was a pill bottle at that time?

A. I assumed it was. I mean, I could tell it was a pill bottle.

10 The dissent states that it is “confident that the amount of frisking that took place between the time Officer Todd detected that the lump in defendant’s groin area was not a weapon and the time he determined it was the type of pill bottle used to carry drugs far exceeded the impermissible frisking that narrowed the identify of the small lump in Dickerson’s nylon jacket pocket to a rock of crack cocaine.” Post at 126-127. There is no evidence indicating that Officer Todd’s frisk exceeded the scope authorized by Terry. Unlike Dickerson, Officer Todd did not reach inside the defendant’s clothing to further manipulate the object before determining its identity. During an authorized patdown, upon feeling a hard concealed object, the officer will necessarily feel through the layers of clothing and focus his touch on the object’s contours in order to determine whether it is a weapon. Officer Todd’s testimony clearly indicates that as he felt the contours of the object, he immediately determined that it was a pill bottle. The dissent’s attempts to characterize Officer Todd’s actions as going beyond the bounds of Terry are disingenuous.

11 Probable cause does not require certainty. Rather, it requires only a probability or substantial chance of criminal activity. Illinois v Gates, 462 US 213, 243-244, n 13; 103 S Ct 2317; 76 L Ed 2d 527 (1983).

12 The dissent contends that this fact “has no credible basis in the record.” Post at 130. While we realize that the trial court ultimately found Officer Chontos’ testimony, in toto, to be more credible than that of Officer Todd, and that Officer Chontos testified that he never saw the defendant get out of his car, we remain convinced that the testimony of both officers supports a finding that the defendant got out of his car after seeing the patrol car. Merely because the younger Officer Chontos did not actually see the defendant leave his car does not mean that there is no credible evidence in the record of defendant’s furtive behavior. The dissent states that it was “at a loss to explain” how the defendant could have gotten from his car to where he stood on the sidewalk without Officer Chontos noticing. Id. at 131, n 6. However, Officer Chontos testified that when the patrol car rounded the comer he “wasn’t looking in the immediate vicinity of the Buick right away.” Rather, he “was looking for the person that rounded the block so I didn’t see it until we approached the vehicle when Mr. Champion was walking away from the front of the vehicle.” The dissent concedes that Officer Chontos observed defendant on the sidewalk walking away from the front of his car after the officers rounded the comer. This testimony is consistent with a finding that defendant had just gotten out of the car upon seeing the officers.

We also disagree with the dissent’s characterization of this first factor as “perhaps the most important” in our totality of the circumstances analysis and decline to suggest that any one factor is controlling. Id. at 130.

13 The dissent argues that we rely on the flight of other individuals, rather than on any suspicious behavior personal to the defendant, in our probable cause analysis. While the furtive behavior of the individual standing on the comer and the other individual fleeing from the parked car contribute to the totality of the circumstances, it is a gross mischaracterization of the evidence to state that defendant’s behavior was not suspicious. The defendant, known to Officer Todd through past contact, was walking away from his parked car with his hands down his sweatpants in a known high-crime area. He refused to stop or to remove his hands after repeated requests by the officers.

Further, after careful scrutiny of the record, the dissent’s assertion that defendant was walking toward the officers, rather than walking away from them, is totally unsupported. Officer Chontos testified that when he first saw him, the defendant was on the sidewalk at the front of the parked Buick. At this time, the officers parked diagonally in front of the Buick. As the officers got out of their patrol car, the defendant was walking away from the front of the Buick in the direction from which the officers had just come. He continued walking as the officers commanded him to stop at least two and possibly three times. Although the exact distance between the Buick and the patrol car and between the defendant and the officers is unclear in the record, the testimony clearly does not support a finding that defendant, when apprehended, was walking toward the officers.

14 While the presence of a tip in Bridges bolsters a finding of probable cause in that case, certain facts in the present case, such as the location of the pill bottle and the officer’s firsthand knowledge of the defendant, malee a finding of probable cause in this case equally, if not more, compelling.

15 In Rawlings at 111, police searched the defendant who had admitted ownership of drugs that police found in a companion’s purse. After searching the defendant, police arrested him. The Court reasoned that it was not “particularly important that the search preceded the arrest” because the police had probable cause to arrest the defendant before the search and “the formal arrest followed quickly on the heels of the challenged search . . . .” Id.

16 In Arterberry, a warrant was issued to search a specific premises and a specific person for heroin and other controlled substances. In the course of searching the premises, the police opened a padlocked toolbox and found controlled substances inside. The police then searched all seven occupants of the home, finding a key to the toolbox in the possession of defendant Arterberry. Mr. Arterberry was not listed on the warrant.

17 The dissent’s argument that the pill bottle, being a closed container, could not have been searched under the plain view doctrine, and thus should not be allowed under the analogous plain feel doctrine, misses the point. The search of the closed container is not authorized by the plain feel doctrine. Bather, it is authorized as a search incident to arrest.