One 1994 Chevrole Pickup, VIN.: 1GCCS14W4R , SEIZED FROM: Trevor A. Coleman, DATE OF SEIZURE: March 12, 2012, CLAIMANT: Trevor A.

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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 One 1994 Chevrole Pickup, VIN.: 1GCCS14W4R , SEIZED FROM: Trevor A. Coleman, DATE OF SEIZURE: March 12, 2012, CLAIMANT: Trevor A. Coleman 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 AND HOMELAND SECURITY IN THE MATTER OF: One 1994 Chevrolet Pickup VIN.: 1GCCS14W4R SEIZED FROM: Trevor A. Coleman DATE OF SEIZURE: March 12, 2012 CLAIMANT: Trevor A. Coleman DOCKET NO: J DOS CASE NO. (M6473) INITIAL ORDER This matter came on to be heard on February 26, 2013, in Chattanooga, Tennessee before Lynn M. England, Administrative Judge, assigned by the Secretary of State, and sitting for the Commissioner of the Tennessee Department of Safety. Ms. Alyson Kennedy, attorney for the Department of Safety, represented the State. Claimant Trevor Coleman was present at the hearing and represented himself pro se after waiving his right to counsel. The subject of this hearing was the proposed forfeiture of the above styled 1994 Chevrolet Pickup for the seized vehicle s alleged use in violation of the Tennessee Drug Control Act, T.C.A , et seq., T.C.A (a)(4) and T.C.A (a)(6)A. After consideration of the evidence offered, the arguments of counsel, and the entire record in this matter, it is ORDERED that the seized vehicle be immediately FORFEITED to the seizing agency. This decision is based upon the following Findings of Fact and Conclusions of Law. FINDINGS OF FACT 1. On March 12, 2012, Detective Chad Bogle was dispatched to 131 County Road 102, Athens, Tennessee, to investigate a possible meth lab. 2. Upon arrival, Det. Bogle was informed that someone was observed jumping from the second story window of the home in an attempt to flee the scene.

3 3. When the individual, David Hicks, was taken into custody, a Tennessee volunteer bag was found beside him. An active meth lab, along with the components were found inside the bag. David Hicks stated he got the bag from Trevor. 4. The Claimant, Trevor Coleman, also attempted to flee the scene but was apprehended. 5. The Claimant, stated he had give David Hicks a ride to the house at 131 County Road 102, Athens, Tennessee. 6. The Claimant consented to a search of his vehicle, the 1994 Chevrolet Pickup. Found in the pickup was a corner piece of a plastic baggie inside a mountain dew bottle. This corner piece of baggie matched a piece of plastic found in the Tennesse bag containing the active meth lab. 7. The Claimant admitted to the officer that he had used meth earlier in the day. 8. The Claimant contends however, that his vehicle was not used to purchase drugs. 9. Detective Bogle, entered into evidence the Tennessee Methamphetamine Task Force Data Base which shows purchases and attempted purchases by the Claimant of pseudoephedrine, a key ingredient of methamphetamine. The evidence shows 12 purchases and 5 blocked purchases of pseudoephedrine within the last 12 months. 10. The 1994 Chevrolet pickup is the Claimant s only mode of transportation. 11. Because Claimant s vehicle was used to make the purchases of the pseudoephedrine, and because his vehicle was used to transport David Hicks along with the Tennessee bag containing an active meth lab the McMinn County Sheriff s Department seized Claimant s vehicle for violation of Tennessee s Drug Control Act, including the statutes which prohibit the promotion of methamphetamine manufacturing. 12. The Tennessee Meth Free Act of 2005 was enacted to make the manufacture of methamphetamine more difficult, and to increase the penalties for manufacturing methamphetamine. 2

4 10. Under the Meth Free Act of 2005, Tennessee maintains a public list of exempted products, and prohibits pharmacies from selling more than three individual packages of any non-exempt product to the same person within a certain time period. Such medications must be stored behind the pharmacy counter or locked in a case within view of the pharmacy counter and dispensed by pharmacy personnel. 11. Additionally, the Meth Free Act of 2005 requires customers who are purchasing a precursor ingredient of methamphetamine to present a government issued ID prior to purchasing pseudoephedrine. Their names are placed in the Tennessee Methamphetamine Data Base whether they purchase ingredients or just attempt to purchase them and are blocked.. CONCLUSIONS OF LAW 1. The State has the burden of proving, by a preponderance of the evidence, that the seized vehicle 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 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 sets forth the offense of Promotion of Methamphetamine Manufacture. It states: (a) It is an offense for a person to promote methamphetamine manufacture. A person promotes methamphetamine manufacture who: (1) Sells, purchases, acquires, or delivers any chemical, drug ingredient, or apparatus that can be used to produce methamphetamine, knowing that it will be used to produce methamphetamine, or with reckless disregard of its intended use; (2) Purchases or possesses more than nine (9) grams of an immediate methamphetamine precursor to another person with the intent to manufacture methamphetamine or deliver the precursor to another person whom they know intends to 3

5 manufacture methamphetamine, or with reckless disregard of the person s intent; or (3) Permits a person to use any structure or real property that the defendant owns or has control of, knowing that the person intends to use the structure to manufacture methamphetamine, or with reckless disregard of the person s intent. (b) Expert testimony of a qualified law enforcement officer shall be admissible to establish that a particular chemical, drug, ingredient, or apparatus can be used to produce methamphetamine. For purposes of this testimony, a rebuttable presumption is created that any commercially sold product contains or contained the product that it is represented to contain on its packaging or labels. (c) Possession of more than twenty (20) grams of an immediate methamphetamine precursor shall be prima facie evidence of intent to violate this section. This subsection (c) shall not apply to the following persons or entities that lawfully possess drug products in the course of legitimate business activities: (1) A pharmacy or pharmacist licensed by the board of pharmacy; (2) A wholesale drug distributor...licensed by the board of pharmacy; (3) A manufacturer of drug products...licensed by the board of pharmacy; (4) A licensed health care professional possessing the drug possessing the drug products in the course of carrying out the health care provider s profession. (d) For purposes of this section, structure means any house, apartment building, shop, barn, warehouse, building, vessel, railroad car, cargo container, motor vehicle, housecar, trailer, trailer coach, camper, mine, floating home, watercraft, or any other structure capable of holding a clandestine laboratory. (e) A violation of this section is a Class D felony. 3. T.C.A states that the initiation of a process intended to result in the manufacture of methamphetamine is a Class B felony, regardless of whether the chemical process or reaction is not complete, or that the process would not actually create methamphetamine is completed. 4. 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, 4

6 processing, delivering, importing or exporting any controlled substance in violation of the Tennessee Drug Control Act are subject to forfeiture. 5. Pursuant to T. C. A , methamphetamine is a Schedule II controlled substance. 6. T.C.A (a) sets forth that the following are subject to forfeiture: (1) All controlled substances that have been manufactured, distributed, dispensed or acquired in violation of part 3 of this chapter and this part, or title 39, chapter 17, part 4; (2) All raw materials, products and equipment of any kind that are used, or intended for use, in manufacturing, compounding, processing, delivering, importing or exporting any controlled substance in violation of part 3 of this chapter and this part, or title 39, chapter 17, part 4; (3) All property that is used, or intended for use, as a container for property described in subdivision (a)(1) or (a)(2); (4) 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 property described in subdivision (a)(1) or (a)(2), but: (A) No conveyance used by any person as a common carrier in the transaction of business as a common carrier is subject to forfeiture under this section, unless it appears that the owner or other person in charge of the conveyance is a consenting party or privy to a violation of part 3 of this chapter and this part, or title 39, chapter 17, part 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; (C) A conveyance is not subject to forfeiture for a violation of (a) or (b) or ; and (D) A forfeiture of a conveyance encumbered by a bona fide security interest is subject to the interest of the secured party if the secured party neither had knowledge of nor consented to the act or omission; *** 7. As set forth in T.C.A (b), expert testimony of a qualified law enforcement officer shall be admitted to establish that a particular chemical, drug, ingredient, or apparatus can be used to produce methamphetamine. 5

7 8. In the case before the undersigned, competent testimony was provided that the Claimant, Trevor Coleman used his vehicle to facilitate a violation of the Tennessee Drug Control Act. 9. Whether or not a criminal case is settled, dismissed, or not prosecuted has little bearing on a civil forfeiture case, in which the State s burden of proof is the preponderance of the evidence. 10. If the State presents a prima facie case for forfeiture, i.e., that the vehicle was used or intended to be used to facilitate a violation of the Tennessee Drug Control Act or drug laws, the burden of going forward with the evidence shifts to the claimant to prove either that the vehicle is not subject to forfeiture or that claimant has a good faith interest in the vehicle and that he or she did not know or have reason to know that the property was being used to facilitate a violation of the drug laws. T.C.A (f)(1). See also, Urquhart v. Department of Safety, 2008 WL (Tenn. Ct. App. 2008). 11. Claimant testified, unconvincingly, that he had given David Hicks a ride and new nothing of the Tennessee bag containing the meth lab. 12. Claimant s demeanor was carefully scrutinized during his testimony, and his testimony was found not to be credible. 13. Nor did Claimant show that he did not know or have reason to know that the property was being used to facilitate a violation of the drug laws. T.C.A (f)(1). See also, Urquhart v. Department of Safety, 2008 WL (Tenn. Ct. App. 2008). 14. The State has met its burden of proof in this case. It has shown that it is more likely than not that the Claimant knew of should have known that her husband was purchasing and transporting the main ingredients and products used to manufacture methamphetamine. 15. The State showed, by a preponderance of the evidence, that Claimant s vehicle was used to purchase and transport chemicals and/or products to manufacture methamphetamine. 6

8 16. The State showed, by a preponderance of the evidence, that Claimant s vehicle was used to transport an active meth lab. The seized vehicle is subject to forfeiture. Accordingly, it is ORDERED that the above captioned vehicle be immediately FORFEITED to seizing agency. It is so ordered. This Order entered and effective this 29 day of April, 2013 England Administrative Judge Filed in the Administrative Procedures Division, Office of the Secretary of State, this 29 day of April, 2013 Thomas G. Stovall, Director Administrative Procedures Division This Order entered and effective this 29 day of April, 2013 Lynn M. England Administrative Judge 7