Vanessa Quilantan vs. Safety

Transcription

1 University of Tennessee, Knoxville Trace: Tennessee Research and Creative Exchange Tennessee Department of State, Opinions from the Administrative Procedures Division Law January 2015 Vanessa Quilantan vs. Safety 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: DEPARTMENT OF SAFETY & HOMELAND SECURITY v. One 1997 BMW VIN:WBADE6328VBW53297 Seized From: VANESSA QUILANTAN Seizure Date: 8/13/13 Claimant:VANESSA QUILANTAN DOCKET NO J Lienholder: THE CAR LOT D.O.S. NOS. P1312 & P1313 & One 1997 FORD THUNDERBIRD VIN: 1FALP62W6VH Seized From: WHELCHEL HOGAN Seizure Date: 8/13/13 Claimant:VANESSA QUILANTAN INITIAL ORDER This matter came to be heard on December 15, 2015, before Thomas G. Stovall, Administrative Judge, assigned by the Secretary of State, and sitting for the Commissioner of the Tennessee Department of Safety and Homeland Security (Department in Nashville, Tennessee. Ms. Karen Litwin, staff attorney, represented the Department. The Claimant Vanessa Quilantan was represented by counsel, Mr. Leonard Belmares. The subject of this hearing was the proposed forfeiture of the subject vehicles for their alleged use and/or acquisition in violation of the Tennessee Drug Control Act. After consideration of the record in this matter it is determined that the subject 1997 Ford Thunderbird should be FORFEITED to the seizing agency and the 1997 BMW should be RETURNED to the Claimant. This decision is based upon the following Findings of Fact and Conclusions of Law. 1

3 FINDINGS OF FACT 1. The subject of this hearing was the seizure of a 1997 Ford Thunderbird from Whelchel Hogan and a 1997 BMW from the Claimant Vanessa Quilantan by the 23 rd Judicial District Drug Task Force (Task Force in Dickson, Tennessee. The Claimant is the titled owner of both vehicles. 2. In 2013 the Claimant and Whelchel Hogan were involved in a personal relationship. They had been together for approximately one and a half years. Although both vehicles are titled to the Claimant, the insurance for both vehicles is listed in the names of both the Claimant and Mr. Hogan. 3. Both the Claimant and Mr. Hogan were known to the police as being involved in the drug trade in the Dickson area and both individuals had prior convictions for the sale of drugs. In the summer of 2013, two controlled buys of drugs were made by the police from the Claimant. On June 10, 2013, the police made a controlled buy of drugs from Mr. Hogan s brother who arrived at the location driving the Thunderbird. 4. Mr. Hogan was frequently seen around Dickson by the police while driving the Thunderbird. On Mr. Hogan s Facebook page there was a picture of him posing with the Thunderbird. Mr. Hogan placed letter decals on the windshield of the Thunderbird which spelled Billy Loon, which was Mr. Hogan s nickname. The Claimant testified that she told Mr. Hogan to remove the Billy Loon decals from the Thunderbird the day after he put them on the vehicle. The Claimant s statement in this regard is not credible. 5. On August 13, 2013, agents with the Task Force had information that Mr. Hogan was selling drugs in the parking lot of a Super 8 motel in Dickson. Mr. Hogan was staying in a room in a Motel 6, which is located adjacent to the Super 8. When the Task Force agents arrived on the scene both the Thunderbird and the BMW were parked in the parking lot of the Motel 6. The agents had no knowledge of the BMW prior to that day. Mr. Hogan had 1.5 grams of powder cocaine, 46 individual bags of marijuana and $ in his possession when was 2

4 arrested by the agents in the parking lot of the Super 8. He had the key to the Thunderbird in his pocket and his wallet was found in the Thunderbird as well. The officers then obtained a search warrant for Mr. Hogan s room in the Motel 6. The Claimant was in the motel room when the agents arrived. Found in the room were 16 grams of crack cocaine in 42 individual plastic bags, 16 grams of powder cocaine in one bag, 16 grams of marijuana in three separate bags, and various items of drug paraphernalia. 6. The Claimant stated that she purchased the Thunderbird with money she earned from working at a nursing home and the BMW from money she received from cashing out a life insurance policy. She bought the Thunderbird about six months prior to its seizure and she purchased the BMW on July 3, 2013, from the Car Lot in Dickson for $4, Monty Dunn, the owner of the Car Lot, stated the Claimant purchased the BMW from his dealership with a down payment of $2, and she financed the balance of the purchase price. At the time of the seizure the Claimant was working at the NHC HealthCare in Dickson. She usually worked 12 hour days, five days per week and was paid $9.00 an hour. On May 3, 2013, the Claimant took a cash distribution of $4, of a vested benefit from a life insurance policy she had obtained from her previous employment. She deposited $3, in her account at First Bank in Dickson on May 22, 2013, and withdrew a total of $2, from the bank on July 2 and 3, The Claimant stated that Mr. Hogan was staying at the Motel 6 without a vehicle. She testified that on the day of the seizure she had driven the Thunderbird to the motel to visit Mr. Hogan. She then picked Mr. Hogan up and they both drove to her home to get the BMW and then returned to the motel in both vehicles so that Mr. Hogan could assist in putting the new license plate she had just obtained on the BMW. It is determined that the Claimant s testimony in this regard is not credible. CONCLUSIONS OF LAW 1. The Department contended that the Ford Thunderbird should be forfeited because it had been used by Mr. Hogan to transport drugs for the purpose of sale. The Department 3

5 further contended that the BMW should be forfeited because it had been purchased by the Claimant with the proceeds of illegal drug sales. If proven both of these activities would subject the subject vehicles to forfeiture pursuant to the provisions of Tenn. Code Ann. Section and Section The Department has the burden of proof to establish that the vehicles are subject to forfeiture. 2. The Department has carried its burden of proof by a preponderance of the evidence that the subject Ford Thunderbird was used by Mr. Hogan to transport controlled substances for the purpose of sale, or was used to facilitate such a sale, in violation of the Tennessee Drug Control Act, thus making it subject to forfeiture. Drugs had been transported in the Thunderbird by Mr. Hogan s brother to a location where a controlled buy of drugs was made by agents of the Task Force. Moreover, the preponderance of the evidence established that Mr. Hogan had driven the Thunderbird to the Motel 6 where he was staying while he was selling drugs in the parking lot of the Super 8 motel. 3. Despite the fact that the Thunderbird had been purchased by the Claimant and was titled in her name, the facts demonstrated that she and Mr. Hogan were co-owners of the vehicle with Mr. Hogan exercising primary control. The insurance was in the names of both individuals. Mr. Hogan was frequently seen by the police driving the vehicle around Dickson, he had placed his nickname of Billy Loon on the car with decals and had photographs of himself posing with the Thunderbird on his Facebook page. At the time of his arrest Mr. Hogan had a key to the car in his pocket and his wallet was found inside the Thunderbird. 4. As a co-owner of the vehicle, for the Claimant s interest in the Thunderbird to be forfeited pursuant to T.C.A. Sections (a(4(B and (a(2 it must be established that she was aware of the vehicle s use in violation of the law by Mr. Hogan. The preponderance of the evidence clearly established that the Claimant was aware of Mr. Hogan s activity that led to its seizure. Both the Claimant and Mr. Hogan were involved in the drug trade in Dickson. While the Claimant was employed at a nursing home it would appear that Mr. Hogan s primary vocation was the sale of illegal drugs. The Claimant obviously knew that Mr. 4

6 Hogan sold drugs, as is evidenced by the fact that she was found in Mr. Hogan s room at the Motel 6 where he was staying while he was selling drugs. The room was filled with drugs and drug paraphernalia when the Task Force agents executed the search warrant while the Claimant was present. When all of the evidence is considered it is determined that the subject Ford Thunderbird was used in violation of the Drug Control Act with the knowledge of both the Claimant and Mr. Hogan thus making it subject to forfeiture. 5. The Department failed to establish by a preponderance of the evidence that the Claimant had purchased the subject BMW with proceeds of drug transactions or that it was in any way used by the Claimant in illegal drug sales. The Task Force agents conceded that they had no knowledge of the BMW prior to its seizure at the Motel 6. There were no drugs or drug paraphernalia found in the car. The Claimant established that she had purchased the BMW with proceeds of her employment and from a life insurance policy. The Claimant was gainfully employed at a nursing home in Dickson, took a cash distribution of $4, from a life insurance policy and withdrew $2, from her bank shortly before buying the BMW. Accordingly it is determined that the BMW was not purchased by the Claimant with the proceeds of illegal drug sales. 6. Based upon the foregoing, it is hereby ORDERED that the 1997 Ford Thunderbird be FORFEITED to the seizing agency. It is further ORDERED that the subject 1997 BMW be RETURNED to the Claimant. This Initial Order entered and effective this day of, Thomas G. Stovall Administrative Judge 5

7 Filed in the Administrative Procedures Division, Office of the Secretary of State, this day of, J. Richard Collier, Director Administrative Procedures Division 6