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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, Petitioner, vs. One 1995 Chevrolet Lumina VIN: 2G1WN52M0S , Seized From: Melisa Cowell, Seizure Date: April 11, 2008, Claimant: Melissa Cowell, Lien Holder: 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 Petitioner DOCKET NO: J DOS NO: H2793 v. One 1995 Chevrolet Lumina VIN: 2G1WN52M0S Seized From: Melisa Cowell Seizure Date: April 11, 2008 Claimant: Melissa Cowell Lien Holder: None INITIAL ORDER This matter was heard on December 8, 2008, before Ann M. Johnson, Administrative Judge, assigned by the Secretary of State to sit for the Commissioner of the Tennessee Department of Safety in Nashville, Tennessee. Cynthia Gross, Metropolitan attorney, represented the Department of Safety. Attorney Bernie McEvoy represented the Claimant Melisa Cowell. This matter became ready for consideration on February 5, 2009, the filing date for the parties to submit post-hearing briefs; an Initial Order is due by May 6, The subject of this hearing was the proposed forfeiture of the subject vehicle for its alleged use in violation of the Tennessee Drug Control Act. 1 Upon consideration of the evidence and arguments presented at the hearing, it is determined that the subject vehicle should be 1 Although other items of personal property were also seized, counsel for the Claimant stated that the Claimant only seeks the return of the vehicle. Consequently, the other items are not at issue in this matter.

3 RETURNED to the Claimant, based upon the following Findings of Fact and Conclusions of Law. SUMMARY OF THE EVIDENCE Officer Carey Adkerson, of the Nashville Police Department, testified on behalf of the State. The Claimant Melisa Cowell testified on her own behalf. One document was admitted into evidence as EXHIBIT 1: Official Forensic Chemistry Report. FINDINGS OF FACT 1. On April 11, 2008, the Claimant was on her way to Clarksville when Mr. DeFord, with whom she had a dating relationship, called her and stated that he needed a ride from an apartment complex to a house located at 915 Maryland Way, a mile or two away from the complex. As she arrived at the apartment complex, Mr. DeFord sent her a text message requesting that she pop open the trunk of her vehicle. She complied so that he could put something in the trunk. Since Mr. DeFord approached from the rear of the vehicle and the trunk was up, the Claimant was unable to see him, what he was wearing, or any package he might have carried. 2. Although the Claimant did not ask, she assumed that Mr. DeFord put some clothing in the trunk since he had been shopping that day. 3. Mr. DeFord asked to be taken to the house at 915 Maryland Way. When the Claimant and Mr. DeFord pulled into the driveway of the house, Mr. DeFord got out of the car and asked the Claimant to wait for him. 4. On the same date, April 11, 2008, Officer Carey Adkerson was conducting an investigation into automobile burglaries in west Nashville. In connection with the investigation, Officer Adkerson, along with two other officers on his team, drove to a house of interest at 915 2

4 Maryland Way. As the patrol car drove down the street, the officers observed the Chevrolet Lumina at issue parked in the driveway of the house. According to Officer Adkerson, the trunk was open and a large white male, who proved to be Jason DeFord, was bending over the right side of the trunk compartment. When Mr. DeFord observed the patrol car, he quickly shut the trunk and walked briskly back into the house. 5. The patrol car pulled into the driveway behind the vehicle, and Mr. DeFord came back out of the house, along with two other occupants. As the officers questioned these three, they observed the Claimant in the driver s seat of the Lumina. The officers approached the Claimant, asked for identification, and requested that she step out of the vehicle. At first she refused to leave the vehicle. 6. Officer Adkerson then approached the rear of the vehicle, since he believed Mr. DeFord s activity in the trunk appeared suspicious. The officer leaned down to the opening of the closed trunk; when he was 6 to 12 inches away, he noted the smell of marijuana. At this point, the officers searched the trunk and found a Kroger sack containing a plastic bag of what proved to be 120 grams of marijuana and 6.5 grams of crack cocaine. EXHIBIT After this discovery, the officers searched the interior of the vehicle, finding no other drugs, drug paraphernalia or drug packaging materials. 8. Officer Adkerson stated that he was unable to smell the marijuana when he was talking with the Claimant while she was seated in the driver s seat with the door open, nor was he able to smell it in the front seat. Officer Adkerson also stated that he could smell a small odor in the back seat because it s less insulated than the outside of the trunk compartment. 3

5 9. During the short ride from the apartment complex to Maryland Way, lasting three to five minutes, the Claimant did not smell any marijuana. She also stated that it was her usual practice to smoke cigarettes in the car, and she felt sure she was smoking on this day. 10. As a result of this incident, Mr. DeFord and the Claimant were both charged with possession of a controlled substance for resale. The Claimant s vehicle was seized, as well as other personal property not at issue in this case. 11. The Claimant had no prior criminal history before this incident. She denied any knowledge of the drugs found in her vehicle. 12. Mr. DeFord stated to the officers at the scene, as well as during his preliminary hearing, that the drugs belonged to him, and that the Claimant had no knowledge of them. RELEVANT LAW 1. TENN. CODE ANN (a)(4) states that the following property, along with other items not relevant to this matter, is subject to forfeiture: 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 [illicit controlled substances]. 2. There are exceptions to this general forfeiture rule, including this relevant provision in TENN. CODE ANN (a)(4)(B): No conveyance is subject to forfeiture under this section by reason of any act or omission established by the owner of the conveyance to have been committed or omitted without the owner s knowledge or consent. 3. T.C.A contains the following language: (a) In order to forfeit any property or any person s interest in such property pursuant to ,... the state shall have the burden to prove by a preponderance of evidence that: 4

6 (1) The seized property was of a nature making its possession illegal or was used in a manner making it subject to forfeiture under the sections set out in this subsection; and (2) The owner or co-owner of the property knew that such property was of a nature making its possession illegal or was being used in a manner making it subject to forfeiture.... (b)(1) Failure to carry the burden of proof shall operate as a bar to any forfeiture and the property shall be immediately returned to the claimant. ANALYSIS and CONCLUSIONS OF LAW The State has shown that the vehicle in this case was used to facilitate the transportation, sale or receipt of [illicit controlled substances]. However, the Claimant has established that she was unaware that the vehicle was being used in an illegal manner, thereby qualifying for an exception to forfeiture under TENN. CODE ANN (a)(4)(B). The Claimant s testimony was credible, a conclusion based upon her demeanor at the hearing as well as the logic and consistency of her testimony. When she picked up Mr. DeFord from the apartment complex, he sent her a text message requesting that she open the trunk by the lever on the driver s side of the interior of the passenger compartment. After she complied, she was unable to see Mr. DeFord or any package he may have been carrying. The Claimant was also credible in stating that she assumed Mr. DeFord wished to store an item of clothing in the trunk, because he had been shopping earlier in the day. The State s only support for its assertion that the Claimant knew of the drugs concerns the scent of the marijuana: she must have known because the smell was strong, according to the State s witness. However, the officer did not detect any smell until he put his nose 6 to 12 inches from the closed trunk of the car. He did not smell marijuana when speaking to the Claimant as she sat in the driver s seat, even with the door opened. During a search of the interior of the vehicle, he did not smell marijuana from the front seat; it was only in the back seat that he 5

7 detected a small odor. If the officer detected only a faint scent from the back seat, and none from the front seat, even when he was looking for such a smell, it is illogical to assume that the Claimant recognized the odor and knew of the cargo in the trunk while sitting in the driver s seat. Furthermore, the Claimant was in the vehicle, with the drugs in the trunk, for only a short period of time, probably about 15 to 20 minutes in all. Since she normally smoked in the car and felt certain she was doing so on this date, the smell of current and residual cigarette smoke could easily mask any faint marijuana smell that might possibly have reached the interior of the vehicle. All of the facts indicate that the Claimant had no knowledge of, and therefore did not consent to, the use of her vehicle for the transportation of illegal drugs. For this reason, her vehicle is not subject to forfeiture. Accordingly, based upon the foregoing, it is hereby ordered that the subject vehicle shall be returned to the Claimant. This Initial Order entered and effective this 16th day of March, Ann M. Johnson Administrative Judge Filed in the Administrative Procedures Division, Office of the Secretary of State, this 16th day of March, Thomas G. Stovall, Director Administrative Procedures Division 6