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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 vs. One 2005 Nissan Altima VIN NO.: 1N4AL11D75C One Ruger Semi- Automatic Pistol Serial No And $67.00 in US Currency, Seized From: Patrick G. O'Neal, Date of Seizure: 7/1/2010, Claimant: Patrick G. O'Neal, Lien Holder: N/A 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. K6694) One 2005 Nissan Altima VIN NO.: 1N4AL11D75C One Ruger Semi-Automatic Pistol Serial No And $67.00 in US Currency Seized From: Patrick G. O'Neal Date of Seizure: 7/1/2010 Claimant: Patrick G. O'Neal Lien Holder: N/A INITIAL ORDER This matter was heard in Nashville, Tennessee, on January 10, 2011, before Margaret R. Robertson, Administrative Law Judge, assigned by the Secretary of State, and sitting for the Commissioner of the Tennessee Department of Safety. Orvil Orr, Staff Attorney for the Department of Safety, represented the State. The Claimant, who was present, was represented by Rayburn McGowan of the Davidson County bar. The subject of this hearing was the proposed forfeiture of the subject property for its alleged use in violation of T.C.A et seq. and et seq. Upon full consideration of the record in this case, it is determined that the proposed forfeiture should be denied and the seized property returned to the Claimant. This decision is based upon the following Findings of Fact and Conclusions of Law: FINDINGS OF FACT 1. Officer Jonathan Coulon, narcotics agent with the Robertson County Sheriff s Department, was participating in organized surveillance of the Claimant, Patrick

3 O Neal, on July 1, 2010, when he observed Mr. O Neal driving north toward him on Highway 431. ) As Mr. O Neal approached, Officer Coulon was able to observe that Mr. O Neal was not wearing a seat belt. 2. Officer Coulon indicated he had been watching to see if the Claimant would pass by, and intended to follow to see where the Claimant went. When Officer saw the Claimant commit a traffic violation, he viewed it as an opportunity to talk to the Claimant. Officer Coulon notified others officers also watching for the Claimant that he was following the Claimant. Officer Coulon radioed Claimant s tag to be sure he was following the person he had been watching for. 3. Officer Coulon pulled in behind the O Neal vehicle and followed it for some distance, observing that the vehicle turned left on Hwy 61, turned into a church parking lot, turned around and retraced his path back to Hwy 431. Officer Coulon passed the vehicle on Hwy 61 when it turned into the church, turned around and observed Mr. O Neal s vehicle turn back onto Hwy 61 going back toward Hwy 431. Officer Coulon made his initial stop before the two vehicles reached the intersection with Hwy Officer Coulon informed Mr. O Neal he was being stopped for failure to wear a seat belt. Mr. O Neal provided his Tennessee driver s license and registration but was unable to provide proof of insurance. Officer Coulon issued a warning citation, and asked him to step out of the vehicle. Officer explained the citation to him and asked him to answer some questions. He asked where Mr. O Neal had been going, and whether he had anything illegal in his vehicle. Mr. O Neal said he had brought clothes to give the church, and admitted he had a pistol in the vehicle for which he had a permit. Officer Coulon felt that something was wrong in Mr. Neal s response wrong from his observation of Mr. O Neal s nervousness and rapid breath. 5. Mr. O Neal declined to answer any other questions. Officer Coulon took possession of the pistol, which he placed in his patrol vehicle, then deployed his canine, with whom he has undergone lengthy training. The dog gave a positive indication for drugs under the driver s seat. There Officer Coulon found a white grocery bag 2

4 containing a green leafy substance which he confirmed with a field test to be marijuana. He found a baggie of the same substance in the console. 6. A laboratory report confirmed the substance was marijuana and placed the weight of the two bags at grams and 1.9 grams respectively, for a total of grams. That is the equivalent of ounces. 7. Officer Coulon seized the vehicle, pistol and $67.00 in US currency as items which were either proceeds from the sale of illegal drugs or instruments and conveyances used to facilitate the purchase of sale of illegal drugs. Officer Coulon determined that the Claim had a permit to carry the pistol that was found in the vehicle. CONCLUSIONS OF LAW and ANALYSIS 1. The State bears the burden of proof in this case, and must therefore prove, by a preponderance of the evidence, that the seized property is subject to forfeiture, pursuant to the laws of this state. Failure to carry the burden of proof operates as a bar to the proposed forfeiture. TENN. CODE ANN (d)(2); Rule , TENN. COMP. R. & REGS., Rules of the Tennessee Department of Safety. 2. All conveyances, including aircraft, vehicles or vessels, that are used, or are intended for use, to transport, or in any manner to facilitate the transportation, sale or receipt of controlled substances in violation of the Tennessee Drug Control Act, are subject to forfeiture under the law. TENN. CODE ANN (a)(4). The State cites this statute in support of its proposed forfeiture of the Claimant s vehicle 3. When the Claimant s vehicle was stopped, it was found to contain two packages of marijuana.. The seizing officer testified that he had determined it to be marijuana, based on his training and experience and the field test he performed. The State also entered into evidence a copy of the lab report conducted by the Tennessee Bureau of Investigation, which confirmed the weight and that the material in both bags is 3

5 marijuana. It is therefore concluded that the Claimant was in possession of grams of marijuana, the equivalent of ounces. 4. Possession of more than one-half (½) ounce ( grams) of marijuana is classified as felony possession of a controlled substance. See, TENN. CODE ANN (g). It may be inferred from the amount of a controlled substance or substances possessed by an offender, along with other relevant facts surrounding an arrest, that the controlled substance or substances were possessed with the purpose of selling or otherwise dispensing. TENN. CODE ANN In this case, the State proved that the Claimant was transporting four times the amount of marijuana that would be considered an amount likely for personal use. The felony-level amount possessed and the fact that it was packaged in two separate containers suggest the possibility that the marijuana was possessed for the purpose of selling or otherwise dispensing it. The presence of the pistol might be construed as increasing the likelihood that the drugs were possessed for resale. However, other indicia that often accompany drugs for resale are missing in the record. The officer s testimony failed to explain why the Claimant was under surveillance. No sale or exchange of drugs was observed. No prior drug record of the Claimant was entered into evidence. The quantity of drugs, while greater than the amount considered a misdemeanor amount most likely for personal use, was not particularly large. Nor was the cash in a large amount or described as in the multiple denominations that are frequently found in conjunction with drug sales. 6. While it is clear that Claimant violated the law by transporting four times the minimum felony amount of marijuana in his vehicle, and the officer s testimony that the police had the Claimant under surveillance to see where he would go raises questions, there are insufficient facts in the record that point to drug activity in the vehicle to support an inference that the marijuana found in the vehicle was possessed with the intent 4

6 to sell or distribute it or that the vehicle was used to facilitate the transportation, sale or receipt of controlled substances in violation of the Tennessee Drug Control Act, and is therefore subject to forfeiture under the law. TENN. CODE ANN (a)(4). 7. The State also asserts that the money and pistol found in the Claimant s possession are subject to forfeiture, citing TENN. CODE ANN (a)(2). [See July 7, 2010 Forfeiture Warrant.] That Code section provides that All raw materials, products and equipment of any kind that are used, or intended for use, in compounding, processing, delivering, importing or exporting any controlled substance in violation of the Tennessee Drug Control Act, are subject to forfeiture under the law. As best can be determined from its proof and argument, it appears that the State claims the money and pistol are products and equipment that were used in delivering the marijuana. 8. The seizing officer was unable to produce any evidence supporting the existence of a drug transaction in which the currency and pistol might have been used. The amount of currency was not more than any citizen might reasonably carry. The Claimant has a permit for the pistol. Without some proof that a drug transaction took place, it is not possible to conclude that the seized money came from such a transaction, or that the pistol was used to arrange it. There is no such proof in the record. While a police officer s experience, and his inferences based on that experience, may form a basis for further investigation, his conjecture and belief alone will not sustain a property forfeiture. Because the proposed forfeiture is not supported by the evidence, it must be denied. Accordingly, IT IS HEREBY ORDERED that the subject vehicle, the 2005 Nissan Altima, the $67.00 in currency and the Ruger semi-automatic pistol are hereby returned to the Claimant. 5

7 This Initial Order entered and effective this 26th day of May, Margaret R. Robertson Administrative Judge Filed in the Administrative Procedures Division, Office of the Secretary of State, this 26th day of May, Thomas G. Stovall, Director Administrative Procedures Division 6