Probable Cause Standard&Quot Applied In State v. White, No. 03C01-9408-Cr-00277, Sullivan ( 1995 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON FILED
MAY 1995 SESSION December 28, 1995
Cecil Crowson, Jr.
Appellate Court Clerk
STATE OF TENNESSEE, )
) C.C.A. NO. 02C01-9412-CC-00298
Appellee, )
) HENRY COUNTY
VS. )
) HON. JULIAN P. GUINN,
RAY ANTHONY BRIDGES, ) JUDGE
)
Appellant. ) (Possession of cocaine with intent
) to sell)
SEPARATE CONCURRING OPINION
Although I agree with the majority in the results, I must respectfully disagree
with the reasoning applied in issue 2 regarding the seizure of the pill bottle. In footnote
number four of the majority opinion, the author makes note of a possibly "overly stringent
probable cause standard" applied in State v. White, No. 03C01-9408-CR-00277, Sullivan
County (Tenn. Crim. App. filed June 7, 1995, at Knoxville). In White I wrote separately,
contending that the discovery of a film canister inside the defendant's shorts was
"immediately apparent" and would have been properly seized in a Terry stop and frisk.
I based that conclusion on testimony of the officer concerning the custom of carrying
cocaine in film canisters along with the fact that the canister was concealed in the
defendant's undershorts, not a normal place to carry either exposed or unexposed film.
In the case under review, however, I am not ready to conclude that the
finding of a prescription pill bottle in a defendant's jacket meets the "immediately
apparent" test. In this case, the officer had received information from a confidential
informant that the defendant was down at "preacher's place" in the "bottom" dealing crack
cocaine at the time of the call. The informant further advised the officer that the
defendant was in possession of money and drugs at that particular time. The officer
testified that this informant had previously furnished information that had led to an arrest
and conviction and that the informant had always been straightforward, honest and
reliable in giving information in the past. The officer also testified that he had received
at least half a dozen anonymous tips concerning the defendant's dealing drugs in that
particular area. Further, the officer was aware that the defendant was a convicted felon
and a convicted drug dealer, and had been recently arrested on a weapons charge.
If information possessed by an officer is received from an informant, the
officers must know that the informant has a basis for his information and that the
informant is creditable or his information reliable. Any deficiency may be overcome,
however, by independent police corroboration. State v. Jacumin, 778 S.W.2d 430, 436
(Tenn. 1989); State v. Marshall, 870 S.W.2d 532, 539 (Tenn. Crim. App. 1993).
In this case I believe that if there was a deficiency, it was overcome by independent
corroboration.
I would hold that the officers had probable cause to believe that the
defendant was selling cocaine and, whether the search was incident to the defendant's
arrest or based upon reasonable belief that the bottle contained illegal drugs, the officer
properly proceeded without obtaining a warrant.
Although for a different reason, I concur in the results reached by the
majority.
______________________________
JOHN H. PEAY, Judge
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