Follow this and additional works at: Part of the Administrative Law Commons

Transcription

1 University of Tennessee, Knoxville Trace: Tennessee Research and Creative Exchange Tennessee Department of State, Opinions from the Administrative Procedures Division Law TENNESSEE DEPARTMENT OF SAFETY vs. DOCKET NO J Two Thousand, Five Hundred and Twelve Dollars $2, in U.S. Currency, Seized from: Shandrema Wallace, Date of Seizure: April 1, 2009, Claimant: Shandrema Wallace Follow this and additional works at: Part of the Administrative Law Commons This Initial Order by the Administrative Judges of the Administrative Procedures Division, Tennessee Department of State, is a public document made available by the College of Law Library, and the Tennessee Department of State, Administrative Procedures Division. For more information about this public document, please contact administrative.procedures@tn.gov

2 BEFORE THE COMMISSIONER OF THE TENNESSEE DEPARTMENT OF SAFETY IN THE MATTER OF: ) ) TENNESSEE DEPARTMENT ) OF SAFETY ) ) v. ) DOCKET NO J ) [D.O.S. Case No. J 3042] Two Thousand, Five Hundred and Twelve ) Dollars ($2,512.00) in U.S. Currency, ) Seized from: Shandrema Wallace ) Date of Seizure: April 1, 2009 ) Claimant: Shandrema Wallace ) INITIAL ORDER This matter was heard on July 21, 2009, in Knoxville, Tennessee, before Mattielyn B. Williams, Administrative Judge, assigned by the Secretary of State, Administrative Procedures Division, and sitting for the Commissioner of the Tennessee Department of Safety. Ms. Nina Harris, Staff Attorney, Tennessee Department of Safety, represented the State. Claimant Shandrema Wallace was present and represented by Attorney Laura Metcalf, of the Knoxville bar. This matter became ready for consideration on August 18, 2009, with the filing of the Transcript. 1

3 The subject of this matter was the proposed forfeiture of the seized Two Thousand, Five Hundred and Twelve ($2,512.00) Dollars in U.S. Currency. The State contended that this currency was used in facilitating, obtained in an exchange, was proceeds, or was otherwise involved in an exchange, in violation of the Tennessee Drug Control Act, thus making the currency subject to seizure, pursuant to T.C.A After consideration of the record, it is DETERMINED that the subject currency should be FORFEITED to the seizing agency. This decision is based upon the following Findings of Fact and Conclusions of Law: FINDINGS OF FACT 1. Officer John Holmes has served in law enforcement for eight (8) years with the Knoxville Police Department, full-time, as well as for nine (9) years with the Knox County Sheriff s Office, part-time. Officer Holmes is a graduate of the Advanced Narcotics School in Florida, has received Tennessee seizure training, and has attended the DEA School for hidden assets. 2. On April 1, 2009, Officer Holmes was present when the Repeat Offender Squad and the SWAT Team executed a search warrant at the home of Darryl Dobbins, Jr. and Claimant Shandrema Wallace. The Dobbins-Wallace home includes 2 stories and a basement. 3. It was undisputed that Mr. Dobbins has been involved in multiple controlled buys of illegal narcotics. 2

4 4. According to Exhibit 1, the TBI Toxicology Report, 27.6 grams of marijuana and 0.1 grams of cocaine base were found at the home that day. Officer Holmes continued that one baggie of marijuana was found on the couch, in the living room; sandwich baggies were found on the kitchen table, as were a baggie of marijuana and a baggie of cocaine; digital scales were found under the coffee table, a small baggie of marijuana was found on the coffee table; and a box ammunition was found on the kitchen table, next to a baggie of crack cocaine. Collective Exhibit 2 shows a number of these items. A rifle scope was found in a crawl space, upstairs. 4. Six hundred ten dollars ($610.00) was seized from Mr. Dobbins. Two thousand five hundred twelve dollars ($2,512.00) was seized from Claimant Wallace s purse, found in a room just off from the living room, and is the subject of the instant matter. The room which contained Claimant s purse also contained a laptop computer (that) had been traded to that residence for narcotics some time back. 5. The currency seized from Claimant s purse was in rubber bands, separating the bills by denomination. More specifically, there were five (5) $100 bills, two (2) $50 bills, sixty-three (63) $20 bills, seven (7) $10 bills, five (5) $5 bills, and seven (7) $1 bills. 6. Holmes testified that Claimant told him that she reported an annual income of $7-9,000, to the IRS, from doing hair, i.e. providing hairdressing services, from the residence. Holmes continued that Claimant also told him (Holmes) that Mr. Dobbins gave her money to pay bills, pay the KUB, which sometimes ran $1,000, pay on the taxes, buy rims and pay half the bills. Holmes further testified that Claimant 3

5 indicated that she knew he had been selling marijuana from the residence., but also said that Mr. Dobbins made money by repairing cars. 7. Officer Holmes testified that he had never personally observed the Claimant doing hair, in the five (5) times he had observed the couple s home, but also testified that hair-dressing equipment was found in the kitchen and that a Rachel Myers was present, when the home was searched, who said her reason for being in the home was to get her hair done. 8. Although the search warrant did not mention Claimant Wallace, Officer Holmes testified that she was present when a number of the controlled buys were made. Mr. Dobbins was arrested at the end of the search, but Claimant Wallace was not arrested. 9. Officer Holmes admitted that Claimant told him that all of the money in her purse, on that particular day, was from her hairdressing business, but Holmes continued that he believed, based on his experience and training as a law enforcement officer, that the seized currency was derived from both sources, with Claimant having admitted that Mr. Dobbins gave her money for bills, taxes, tires, rims, etc. 10. Holmes also felt that $2,512 was a large amount of money to be in Claimant s purse, since Claimant s hair-dressing business only yielded $7,000 to $9,000 annually. 11. Though present at the hearing, Claimant Wallace declined to testify. 12. Claimant s motion for directed verdict was denied. 4

6 5

7 CONCLUSIONS OF LAW 1. The State is required to carry its burden of proof, by a preponderance of the evidence, that the subject U.S. Currency was used to facilitate, constituted proceeds, or was involved in an exchange in a manner that violated the Tennessee Drug Control Act. Such violation subjects property to seizure and forfeiture pursuant to the provisions of T.C.A The State asked that an Adverse Inference be taken, because the Claimant declined to testify. An Adverse Inference was taken which means that it is assumed that if Claimant had elected to testify, truthful testimony would have been adverse to Claimant s interests. 3. It is CONCLUDED that Claimant operates a hairdressing business as a source of legitimate funds (assuming that necessary licenses are in place), but, it is also CONCLUDED that Claimant knowingly received money from Mr. Dobbins for household bills rims, etc., with Claimant admitting that she knew Mr. Dobbins sold illegal drugs from their residence. 4. Claimant did not present Mr. Dobbins tax returns, testify, or offer other proof regarding how much income Mr. Dobbins derives from repairing cars. 5. Although drug money usually consists of bills in smaller denominations, it seems reasonable that cash paid for hair-dressing services would potentially also be in small denominations. 6. Based on the entirety of the record, including Officer Holmes demeanor, the consistency of his testimony, and his candidness about exactly what he did see v. did 6

8 not see, and in the absence of contrary testimony or other proof, it is CONCLUDED that, more likely than not, the seized currency from Claimant s purse included at least some drug money from Mr. Dobbins, which she then co-mingled and tied together in rubber bands with the money from her hairdressing business, in order to pay the household s bills, taxes, etc. 7. When legitimate money is co-mingled with drug money, the legitimate money becomes subject to seizure and forfeiture. It is not necessary that the State prove that each and every specific dollar seized was actually drug money. 8. Therefore, it is hereby ORDERED that the seized Two Thousand, Five Hundred and Twelve ($2,512.00) Dollars in U.S. Currency be FORFEITED to the seizing agency, for disposition as provided by law. This Initial Order entered and effective this 23rd day of November, Mattielyn B. Williams Administrative Judge November, Filed in the Administrative Procedures Division, Office of the Secretary of State this 23rd day of Thomas G. Stovall, Director Administrative Procedures Division 7