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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 DEPARTMENT OF SAFETY vs., One 2007 Ford F-150 Truck, VIN: 1FTPW12VX7KB12220, SEIZED FROM: Albert Tyus, Jr., SEIZURE DATE: April 13, 2009, CLAIMANT: Larry Houston, SEIZING AGENCY: West TN Drug T.F., LIENHOLDER: None Filed Follow this and additional works at: 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: ] DEPARTMENT OF SAFETY, ] ] vs. ] DOCKET # J ] D.O.S. # J3176 One 2007 Ford F-150 Truck ] VIN: 1FTPW12VX7KB12220 ] SEIZED FROM: Albert Tyus, Jr. ] SEIZURE DATE: April 13, 2009 ] CLAIMANT: Larry Houston ] SEIZING AGENCY: West TN Drug T.F. ] LIENHOLDER: None Filed ] INITIAL ORDER This contested administrative case was heard in Memphis, Tennessee on November 5, 2009, before J. Randall LaFevor, Administrative Judge, assigned by the Secretary of State, sitting for the Commissioner of the Tennessee Department of Safety. Mr. Andre Thomas, Staff Attorney for the Department of Safety, represented the Seizing Agency. The Claimant was represented by his legal counsel, Ms. Zipporah Williams. The subject of this hearing was the proposed forfeiture of the Claimant s vehicle, based on the seizing agency s assertion that it was used in violation of the Tennessee Drug Control Act. Upon full consideration of the record in this case, it is determined that the vehicle should be forfeited to the seizing agency. This decision is based on the following Findings of Fact and Conclusions of Law. FINDINGS OF FACT 1. The Claimant in this case is Larry Houston, an over-the-road trucker. In November 2006, the Claimant married Anita Houston ( Anita ). When he met her, and for a few weeks after their marriage, Anita lived at a facility operated as part of a residential drug treatment program. After their marriage, the Claimant visited Anita at that facility on weekends, until she moved into his home in Arlington, Tennessee.

3 2. In August 2007, Anita took the couple s truck, and drove it to Brownsville, Tennessee, where she had grown up. While there, she obtained some illegal drugs, and began using them. At some point, Anita traded the use of the truck to another woman in exchange for drugs. After a few days, the Claimant found his wife, regained possession of his truck, and returned with them to their home in Arlington. 3. In April 2009, the previous episode was repeated. While the Claimant was away from home due to his job, Anita again took the truck to Brownsville, looking for drugs. While there, she traded the truck to Albert Tyus, Jr. in exchange for drugs. Tyus then used the truck to transport and sell drugs in the Brownsville area. 4. On April 7, 2009, members of the West Tennessee Drug Task Force ( WTDTF ) made a controlled purchase of two (2) grams of crack cocaine from Tyus, who was driving the Claimant s truck at the time. 5. Based on the facts of that purchase, WTDTF officers seized the truck, and later sought and obtained a Property Forfeiture Warrant for the vehicle. Larry Houston filed a claim for the vehicle, and this hearing was scheduled to consider his claim. 6. The Claimant and his wife have only one passenger vehicle, the seized truck. 1 Obviously they both drive the truck, even though it is registered only in the Claimant s name. When questioned by the police, Anita claimed that her husband had bought the truck for her as a wedding gift. The Claimant denied that at the hearing. Both the Claimant and Anita testified that, except for the incidents in August 2007 and April 2009, Anita had done well in her attempts to stay away from drugs. The Claimant sometimes attended rehabilitation meeting with her. However, during the hearing, Anita s appearance and demeanor was that generally exhibited by persons who are using drugs. She was fidgety, appeared nervous and high-strung, and her speech was frequently unclear. The witnesses testimony that she was clean was not credible. 1 The Claimant also owns a motorcycle. 2

4 7. The State presented no direct evidence of the Claimant s involvement in any illegal drug activity. CONCLUSIONS OF LAW and ANALYSIS 1. The Notice of Seizure and Drug Asset Forfeiture Warrant in this case were issued pursuant to [1] TENN. CODE ANN (a)(4), which provides that, All conveyances... which are used, or are intended for use, to transport, or in any manner facilitate the transportation, sale or receipt of drugs in violation of the Tennessee Drug Control Act are subject to forfeiture under the law; and [2] TENN. CODE ANN (a)(6)(A), which provides that Everything of value furnished, or intended to be furnished, in exchange for a controlled substance in violation of the Tennessee Drug Control Act of 1989,... all proceeds traceable to such an exchange, and all moneys... used, or intended to be used, to facilitate any violation of the Tennessee Drug Control Act... are subject to forfeiture under the law. 2. The law also provides that, when the owner of the vehicle is not present at the time of the seizure, his/her legal interest is not subject to forfeiture without proof that the owner knew that the vehicle was being used in a manner making it subject to forfeiture and consented to its use. TCA (c). 3. The Tennessee Department of Safety bears the burden of proof in forfeiture proceedings, and must therefore prove, by a preponderance of the evidence, that the seized property was used in a manner making it subject to forfeiture, pursuant to law. [See, TENN. CODE ANN (a).] As set out in Paragraph 2, supra, when the seized property belongs to an absent owner, the State must also prove, by a preponderance of the evidence, that the owner knew that the vehicle was being used in a manner making it subject to forfeiture and consented to its use. TENN. CODE ANN (c). Failure to carry the burden of proof operates as a bar to the proposed forfeiture. TENN. CODE ANN (b)(1); and, Rule , TENN. COMP. R. & REGS., Rules of the Tennessee Department of Safety. 3

5 4. In this case, both in August 2007 and again in April 2009, the Claimant s wife took their truck; she traded it for drugs, making it subject to forfeiture as an item of value furnished, or intended to be furnished, in exchange for a controlled substance in violation of the drug control laws. In August 2009, Anita traded the truck to a person who then used it to transport and sell drugs, additionally making it subject to forfeiture as a conveyance that was used... to transport, or in any manner facilitate the transportation, sale or receipt of drugs in violation of the Tennessee Drug Control Act. 5. The Claimant asserts that he is an innocent owner of the truck as contemplated in TCA (c), because he claims that he did not know that the truck was being used to violate the law, and did not consent to such use. However, since he first met her, the Claimant has known that Anita was a drug abuser. When they first met, she was living in a residential facility for drug addicts. After their marriage, he attended some rehab meetings with her. And, equally important, in 2007, he forcefully returned her from a drug binge in Brownsville, where she had traded the use of the truck for drugs. That episode put him on notice that she was still using drugs, and engaging in drugseeking behavior. Despite that knowledge, the Claimant did nothing subsequently to prevent her access to the truck, or to prevent her repeating the activities of The result of that failure was the April 2009 episode, where she again took the truck to Brownsville, went on a drug binge, traded the truck for drugs, and permitted its use for the transportation and sale of drugs. The law refers to the Claimant s negligent and reckless indifference to crucial facts as willful blindness, which will not serve to insulate the Claimant from the consequences of his wife s illegal conduct. It is therefore concluded that the Claimant cannot be considered an innocent owner in this case, to exempt him from the operation of the drug asset forfeiture statutes. 6. The State s proof established, by a preponderance of the evidence, that the vehicle was traded by the Claimant s wife, Anita Williams, for drugs; and that it was subsequently used to transport and sell a quantity of crack cocaine in violation of the Tennessee Drug Control Act. It is therefore concluded that the seized truck was subject to forfeiture pursuant to TENN. CODE ANN (a)(4) and (a)(6)(A). Under the facts of this case, given his failure to take reasonable steps to prevent a 4

6 recurrence of the August 2007 incident, the Claimant is not entitled to the return of the vehicle under a claim that he is an innocent owner of the vehicle. Accordingly, it is hereby ORDERED that the subject 2007 Ford F-150 Truck shall be forfeited to the Seizing Agency, the West Tennessee Drug Task Force, for disposition as provided by law. Entered and effective this 30th day of November, J. Randall LaFevor, Administrative Judge Filed in the Administrative Procedures Division, Office of the Secretary of State, this 30th day of November, Thomas G. Stovall, Director Administrative Procedures Division 5