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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, DOS #K0297 vs Toyota Prius VIN #JTDKB20U $ in U.S. Currency, SEIZED FROM: Rebecca Lucianno, SEIZURE DATE: December 7, 2009 CLAIMANT: Rebecca Lucianno LIENHOLDER: None 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, ) Docket No J ) DOS #K0297 ) v. ) ) 2007 Toyota Prius ) VIN #JTDKB20U ) $ in U.S. Currency ) SEIZED FROM: Rebecca Lucianno ) SEIZURE DATE: December 7, 2009 ) CLAIMANT: Rebecca Lucianno ) LIENHOLDER: None ) INITIAL ORDER This matter came to be heard on March 15, 2011, in Nashville, Tennessee before Rob Wilson, Administrative Judge, assigned by the Secretary of State, and sitting for the Commissioner of the Tennessee Department of Safety. Mr. Orvil Orr, Attorney for the Department of Safety, represented the State. The Claimant, Rebecca Lucianno, was represented by B.F. Jack Lowery, Esq. The subject of this hearing was the proposed forfeiture of the above captioned vehicle and currency for Claimant s alleged use of these items in violation of the Tennessee Drug Control Act, T.C.A , et seq. and T.C.A After consideration of the evidence offered, the arguments of counsel, and the entire record in this matter, it is ORDERED that the seized property be FORFEITED to

3 the seizing agency. This decision is based upon the following Findings of Fact and Conclusions of Law. FINDINGS OF FACT 1. The State s witness, Bo Davis, of the Rutherford County Sheriff s Department, testified that on December 7, 2009, he initiated a traffic stop due to the fact that a Toyota Prius was following another vehicle too closely. Officer Davis asked Claimant for permission to search the vehicle and Claimant refused. Officer Davis testified that Claimant seemed overly nervous so he called for a K9 unit. The dog alerted to the vehicle and a search revealed three grams of crystal meth, digital scales, and small zip lock bags in a plastic storage pouch. Claimant had $ in U.S. Currency on her person. 2. The vehicle and currency were seized as alleged proceeds from illegal drug sales. 3. The car was titled to Cynthia Lucianno, Claimant s mother. Claimant told the police at the time of the search/seizure that she had been awarded the car after her mother s death. Claimant produced insurance cards which showed that Claimant had the vehicle in question insured in her name. [See exhibit 1]. 4. Claimant did not testify at the hearing. CONCLUSIONS OF LAW 1. The State has the burden of proving, by a preponderance of the evidence, that the seized currency and property was subject to forfeiture because it was being used or was intended to be used to violate the Tennessee Drug Control Act, T.C.A

4 402. See T.C.A and T.C.A (d)(2). Failure to carry the burden of proof operates as a bar to any forfeiture and the property shall be immediately returned to the Claimant. T.C.A (b)(1). 2. T.C.A (a)(6)(A) authorizes the forfeiture of everything of value furnished, or intended to be furnished in exchange for controlled substance, all proceeds traceable to such an exchange, and all moneys, negotiable instruments, and securities used, or intended to be used, to facilitate any violation of the Tennessee Drug Control Act. 3. T.C.A (a)(2) provides that all raw materials, products, and equipment of any kind which are used, or intended for use, in manufacturing, compounding, processing, delivering, importing or exporting any controlled substance in violation of the Tennessee Drug Control Act are subject to forfeiture. 4. The State is not required to trace money or proceeds to specific drug sales; as long as there is some proven nexus to connect the seized property with illegal drug sales activity. Circumstantial evidence can be used to make this connection. Lettner v. Plummer, 559 S.W.2d 785 (Tenn. 1977); Goldsmith v. Roberts, 622 S.W. 2d 438 (Tenn.Ct. App. 1981). 5. Among the factors which may be considered in determining whether the State has met its burden are whether the money/property was found in close proximity to the illegal controlled substance; whether the Claimant was unemployed; whether there is evidence or records of a large-scale drug operation; whether the Claimant is associated with known traffickers or users; the quantity of the money involved; the quantity of the 3

5 drugs involved; the packaging of the drugs; and the prior records of those involved. Lettner v. Plummer, 559 S.W.2d 785 (Tenn. 1977); Goldsmith v. Roberts, 622 S.W. 2d 438 (Tenn.Ct. App. 1981). 6. T.C.A permits an inference from the amount of controlled substance or substances possessed by an offender, along with other relevant facts surrounding the arrest, that the controlled substance or substances were possessed with the purpose of selling or otherwise dispensing. 7. Claimant s Counsel argued that Claimant was not the actual owner of the vehicle and that notice of the seizure was not provided to the deceased owner s estate. This argument is without merit. The Petition for Hearing that was filed by Claimant and her Counsel lists Rebecca Lucianno as the owner of the vehicle. T.C.A and Department of Safety Rule (4) details the following criteria to determine ownership of seized property when securing a forfeiture warrant. If the person in possession of the property is not the registered owner as determined from public records of titles, registrations, or other recorded documents, the officer may submit certain indicia of ownership to the judge which proves that the possessor is nonetheless an owner of the property. Such indicia of ownership shall include, but is not limited to the following: (a) How the parties involved regarded ownership of the property in question; (b) The intentions of the parties relative to ownership of the property; (c) Who was responsible for originally purchasing the property; (d) Who pays any insurance, license or fees required to possess or operate the property; (e) Who maintains and repairs the property; 4

6 (f) Who uses or operates the property; (g) Who has access to use the property; (h) Who acts as if they have a proprietary interest in the property. All the indicia of ownership factors, with the possible exception of (b), indicate that Rebecca Lucianno is the de facto owner of the car. Cynthia Lucianno had been deceased for more than six months before the events leading to the seizure of the vehicle took place. Claimant s Petition for Hearing lists her address as the same address as Cynthia Lucianno. It is simply unrealistic for Claimant and her Counsel to file a claim as the owner of the vehicle, then argue that Claimant is not the owner, and then further argue that the deceased owner s estate did not have notice of the seizure. Claimant s Counsel does not claim that he represents the estate, and no claim for the vehicle was filed by the estate. Rebecca Lucianno was certainly aware that her mother was deceased at the time the vehicle was seized, and she could have chosen to file a claim for the vehicle on behalf of the estate. However, during the traffic stop she stated that she had been awarded the car after her mother s death. She had access to the car, she was responsible for its maintenance, she had the car insured in her name, and she filed a claim as the owner of the car. 8. The State has met its burden of proof in this case. Given all the evidence and circumstances surrounding Claimant s arrest, it is more probable than not that the currency and vehicle taken from Claimant was traceable to an illegal exchange of controlled substances or was used to violate the Tennessee Drug Control Act. 5

7 9. The quantity of methamphetamine found, the proximity of the seized property to the illegal drugs when found, no valid explanation as to the origin of the $ in U.S. currency, along with all the facts and circumstances of this case, are all factors which preponderate towards a determination that the seized property was either furnished in exchange for a controlled substance, was purchased with the proceeds from illegal drug sales, or was intended to be used to facilitate a violation of the Tennessee Drug Control Act. The seized property is subject to forfeiture. Accordingly, it is ORDERED that the above captioned property and currency be FORFEITED to the seizing agency. This Order entered and effective this 6th day of May, Thomas G. Stovall, Director Administrative Procedures Division 6