FILED

December 28, 1995

Cecil Crowson, Jr.

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

MAY 1995 SESSION

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
2

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