¶1dissenting.
¶2Respectfully, I must dissent. Although the majority opinion espouses the Court of Appeals’ ruling that Officer Teagle had a “reasonable suspicion” that the Appellee was armed and thus the Terry pat down was proper, it has nonetheless found, by relying on the plain feel exception to the warrant requirement, that the evidence was insufficient to support the conclusion that Officer Teagle’s pat down satisfies the “immediately apparent” requirement for plain feel searches. Minnesota v. Dickerson, 508 U.S. 366, 375, 113 S.Ct. 2130, 2137, 124 L.Ed.2d 334 (1993). Moreover, the majority characterizes Appellee’s response that he had “nothing” in his pockets as being “less incriminating than being seen walking from a known crack house, as in Dickerson, or being a known, drug dealer standing in the precise location where an anonymous caller had told the police the suspect used to sell drugs, as in Crow-der.”
¶3*200I find, however, that based upon the totality of the circumstances, Officer Tea-gle had probable cause to seize the pill bottle.
¶4In Dickerson, supra,the United States Supreme Court analogized the plain feel doctrine to the plain view doctrine in the context of a legitimate Terry search, opining that “[r]egardless of whether the officer detects the contraband by sight or by touch ... 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, 508 U.S. at 376, 113 S.Ct. at 2137 (emphasis added) citing Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979) (contemplating the possibility that police officers could obtain probable cause justifying a seizure of contraband through the sense of touch). Significantly, the United States Supreme Court rejected the State’s argument in Ybarra, only because “[t]he initial frisk of Ybarra was simply not supported by a reasonable belief that he was armed and presently dangerous,” as required by Terry. Ybarra, 444 U.S. at 92-93, 100 S.Ct. at 343.
¶5Thus contraband may properly be seized during a Terry search if the item’s identity is immediately apparent and if the officer has probable cause to believe the item is contraband. When considered under the totality of the circumstances, we should find that probable cause exists for the seizure of suspected contraband.
¶6For example, in Commonwealth v. Cullen, 62 Mass.App.Ct. 390, 816 N.E.2d 1228, 1238 (2004), the Massachusetts Court held that while no “direct evidence” of the incriminating nature of stolen coins in the defendant’s pocket was present, a “host of circumstantial evidence” provided the incriminating linkage between the coins and the burglary. Moreover, probable cause itself is recognized as a “fluid concept, turning on the assessment of probabilities in particular factual contexts, not readily, or even usefully reduced to a neat set of rules.” Illinois v. Gates, 462 U.S. 213, 232, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Probable cause has further been defined as a “reasonable grounds for belief, supported by less than prima facie proof but more than mere suspicion.” United States v. Bennett, 905 F.2d 931, 934 (6th Cir.1990) (emphasis added). And the test for probable cause is whether “there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Gates, 462 U.S. at 238, 103 S.Ct. at 2332 (emphasis added). Thus no “actual showing of [criminal] activity” is required so long as there is only a probability or substantial chance such activity has occurred. United States v. Wright, 16 F.3d 1429, 1438 (6th Cir.1994).
¶7Even more persuasive is the notion that determinations of probable cause are based on the “totality of the circumstances,” involving a practical, commonsense review of the available facts known to the officer at the time of the search. Gates, 462 U.S. at 238, 103 S.Ct. at 2332. The Court of Appeals has recognized such in Baltimore v. Commonwealth, 119 S.W.3d 532, 539 (Ky.App.2003), wherein we held that the probable cause standard is
[a] flexible concept[ ] to be applied in a commonsense manner based on the totality of the circumstances in each case. In determining the totality of the circumstances, a reviewing court should not view the factors relied upon by the police officer(s) to create reasonable suspicion in isolation but must consider all of the officer(s) observations and give due regard to inferences and deductions drawn by them from their experience and training.
¶8(Emphasis added). Furthermore, the court held that “ ‘the likelihood of criminal *201activity need not rise to the level required for probable cause, and it falls considerably short of satisfying a preponderance of the evidence standard.’ ” Id.(quoting United States v. Arvizu, 534 U.S. 266, 274, 122 S.Ct. 744, 751, 151 L.Ed.2d 740 (2002)); see also Commonwealth v. Banks, 68 S.W.3d 347, 351 (Ky.2001) (“Thus, if nonthreatening contraband is immediately apparent to the officer from the sense of touch while the officer is conducting a lawful pat-down search, the officer is not required to ignore the contraband and can lawfully seize it.”)
¶9The precedent set by the majority opinion in this case would require an officer, confronted with an individual suspected of being armed, to have proof beyond probable cause before seizure of suspected contraband can occur. Such a result is not only unnecessary under the Fourth Amendment, but is not required under the totality of the circumstances present in this case. Accordingly, I would reverse the decision of the Court of Appeals and reinstate the ruling of the Harlan Circuit Court.
¶10GRAVES and WINTERSHEIMER, JJ., joins this dissent.