A common point of confusion among law enforcement and the public is about the use of unlabeled pill bottles. Is it legal to possess prescription medicine in a container other than the original bottle with the prescription affixed? Does discovering an unlabeled pill bottle justify seizing and searching it to see if it contains contraband? Can a pill bottle be removed from a pocket during a frisk based on plain feel? Does it provide reasonable suspicion or probable cause to search or arrest a suspect? A case decided by the Court of Appeals earlier this month, State v. Jackson, No. COA23-727; ___ N.C. App. ____; ___ S.E.2d ___ (Mar. 19, 2024), sheds some light on these questions. Read on for the details.
Facts of Jackson. An officer on patrol in Avery County noticed the defendant driving down the road. The officer was familiar with the driver and was aware that he lacked an active driver’s license. The officer had arrested the defendant before for possession of firearm by felon and had some (apparently vague) notion that the defendant had previously been involved in drug possession. Jackson Slip op. at 2, n. 1. The officer immediately asked the defendant if he could search the defendant’s truck and the defendant consented. The officer asked the defendant to step outside of the vehicle, and again the defendant complied. The defendant did not exhibit any nervousness or evasive behavior during the interaction but did volunteer that he was in possession of a pocketknife. The officer performed a frisk of the defendant and immediately felt what seemed to the officer to be a small pill bottle (the basis for the frisk is not clear from the opinion). According to the officer, he could tell that the pill bottle in the defendant’s pocket was dissimilar to a normal prescription bottle (the opinion does not indicate what was different about this bottle as opposed to a “normal” pill bottle). The officer then asked the defendant what it was and simultaneously removed the bottle from the defendant’s pocket. When asked what was inside, the defendant stated that it was his medicine. When asked what kind of medicine, the defendant replied that it was Percocet and that he had a valid prescription. The officer then opened the bottle, finding two pills inside. From there, the officer told the defendant he was being detained based on the pills. He cuffed the defendant and searched the rest of his pockets. During the interaction, the officer repeatedly told the defendant that he was not allowed to carry his prescription medicine outside of its original container. “It’s against the law to carry Percocets around like that without a prescription bottle,” said the officer to the defendant. Id. at 4. Based on the unlabeled pill bottle and admission to possession of Percocet, the officer began a full search. This culminated in the discovery of a possession-level amount of methamphetamine in the defendant’s boots. The defendant was cited for DWLR and arrested for possession of meth.
The defendant moved to suppress. The trial court denied the motion, and the defendant was ultimately convicted of the felony by a jury. He appealed, arguing that the trial court erred in denying his motion to suppress. The defendant argued multiple grounds for suppression, including that the search could not be justified by search incident to his arrest for driving while license revoked (“DWLR”) because he was never arrested for that offense, that the officer did not have probable cause to open the pill container, and that he was unlawfully seized based on the officer’s discovery of the pill bottles.
The Holding. The defendant ultimately lost before a unanimous panel of the Court of Appeals based on inevitable discovery. When the State shows by a preponderance of evidence that the contested item would have been legally discovered by law enforcement independently of any illegal search or seizure, the evidence may still be used despite having been originally discovered via an illegal search of seizure under the inevitable discovery doctrine. State v. Larkin, 237 N.C. App. 335 (2014). Here, the officer testified at the suppression hearing that he would have arrested the defendant for the DWLR charge whether he found additional contraband or not, and that the defendant would have been searched incident to that arrest. There was quite a bit of discussion on that point during argument in the case, with the defendant arguing that the officer did not credibly testify on the issue. Defense counsel noted the lack of any finding about the defendant’s likelihood of having been arrested for only the DWLR in the trial court’s order, and pointed to the more common practice of officers merely citing people for the class 3 misdemeanor (as happened here). In rebuttal, the State argued that an officer is entitled to arrest someone for that crime, and that the trial court’s order did not need to expressly address the issue either way. Ultimately, the Jackson court sided with the State and accepted that the drugs found on the defendant would have been inevitably discovered via a search incident to arrest for the traffic offense of DWLR.
Plain Feel Seizure of the Pill Bottle. The arguments rejected by the court in Jackson were perhaps more interesting than the ultimate decision. The court disagreed with the State that the seizure of the pill bottle was justified by plain feel. Under the plain feel doctrine, an officer conducting a frisk for weapons during an investigative pat-down may seize contraband felt during the encounter when the incriminating nature of the item is immediately apparent. Minnesota v. Dickerson, 508 U.S. 366, 375 (1993). A hunch that a suspect’s pockets contain contraband is not enough; the officer must have probable cause to believe the suspicious item is contraband. State v. Shearin, 170 N.C. App. 222, 226 (2005). The State argued that the officer in Jackson had probable cause to believe the pill bottle contained drugs, pointing to State v. Robinson, 189 N.C. App. 454 (2000). There, the officer felt a film canister on the suspect, removed it, and searched it, finding drugs. In upholding the plain feel seizure, the Robinson court observed that the defendant was in a known drug area, acted nervously, and exhibited evasive behavior with the officer. The officer had also arrested three other people with the exact type of film container (all of whom were found to be in possession of crack cocaine) and had information that the defendant had recently sold drugs in the area. Further, the officer testified that it was immediately apparent upon touching the canister that it contained crack. These facts distinguished that situation from the circumstances of Jackson, where the defendant was not in a drug area, there was no information that the defendant had sold drugs nearby, the defendant was cooperative with the officer, and was not nervous or evasive. Significantly, the court noted that a pill bottle – even an unlabeled one, without the prescription label affixed—was not like the film canister in Robinson and did not constitute evidence of a crime. Jackson Slip op. at 4, n. 4 (recognizing that no state law requires prescription medicine to be kept in its original container). In the words of the court: “Thus, the State’s application of the ‘plain feel’ doctrine and Robinson is misplaced.” Id. at 9.
Probable Cause to Search Based on the Pill Bottle. Beyond finding the plain feel seizure of the pill bottle unjustified on the facts of the case, the court rejected the idea that an unlabeled pill bottle gave the officer probable cause to look for other drugs or contraband as well. According to the court:
We also reject the State’s contention that the unlabeled pill bottle, for which the defendant was unable to provide a prescription during the stop, gave [the officer] probable cause that it contained contraband to seize it. The State was unable to cite to a single case in North Carolina to support this contention, and many jurisdictions expressly reject this idea. Id.
In other words, even if the pill bottle had been lawfully seized, the officer was not justified in opening it or searching the defendant and his car based solely on its presence. The officer’s statement to the defendant that it was illegal to carry prescription medicine in something other than the original prescription bottle was simply wrong—again, no state law imposes that requirement, and nothing forbids a person from carrying their medicine however they like.
This makes intuitive sense. A person carrying a Sunday-Saturday daily pill container (like this one) is not subject to search or seizure of the container simply based on the presence of medicine outside of its original container. A traveler who puts his or her daily medications into one container for a long flight likewise does not commit a crime by doing so, and that alone does not justify a search or seizure of the container. Probable cause is of course always a question of the totality of circumstances, and there may be times when an unlabeled pill bottle, coupled with other suspicious facts, does give rise to probable cause. For instance, if the officer knew that people in the area were using unlabeled pill bottles like the one found on the defendant in Jackson to transport drugs in the area and had arrested others with a similar container with drugs, the probable cause analysis may be different. Even then, the officer will need more than to feel the shape of a pill bottle to justify its removal from a suspect’s pockets under Jackson.
Takeaway. Returning to the questions raised at the beginning of the post: There is no law prohibiting a person in North Carolina from carrying prescription medication in a container other than its original prescription bottle. There is also no law requiring someone to carry a copy of their prescription(s) when in possession of prescription medication. An officer’s discovery of a pill bottle—whether the bottle is labeled or not—does not provide probable cause to seize or search the bottle, and it does not, standing alone, justify a search a person or their belongings. That said, a pill bottle will be a factor in the overall totality of the circumstances. An officer may be justified in searching, seizing, or arresting based on the presence of an unlabeled pill bottle when there are additional, independent incriminating facts suggesting that the defendant is committing a crime, but an unlabeled pill bottle alone is not indicative of a crime. Jackson is a good reminder about this area of law, and a strong case for the defense on the limits of plain feel.
Note: After writing this piece, it came to my attention that Jeff Welty covered some of the issues discussed here in a post about the rules around prescription medication back in 2011. Check that out here if you like!
If you have questions, comments, or other feedback, I can always be reached at dixon@sog.unc.edu.
Update: An astute reader correctly pointed out that a standard condition of probation requires supervisees to carry prescription controlled substances in the original container under G.S. 15A-1343(b)(15), and it is worth noting that the search and seizure analysis above would be different when an officer knows a suspect is on probation. Hat tip to Scott Boyles on that note.