Follow this and additional works at: Part of the Administrative Law Commons

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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, EASTERN DIVISION, vs. SUBJECT PROPERTY: $1, US Currency, Smith and Wesson.40 Caliber Handgun, 2 ammunition clips, Digital Scales., SEIZED FROM: SAMUEL O NEAL TOOLEDATE OF SEIZURE: 08 FEBRUARY 2006CLAIMANT: SAMUEL O NEAL TOOLELIENHOLDER: N ONE 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 TENNESSE DEPARTMENT OF SAFETY IN THE MATTER OF: DEPARTMENT OF SAFETY, EASTERN DIVISION, DOCKET NO: J DOS CASE: E9706 v. SUBJECT PROPERTY: $1, US Currency, Smith and Wesson.40 Caliber Handgun, 2 ammunition clips, Digital Scales. SEIZED FROM: SAMUEL O NEAL TOOLE DATE OF SEIZURE: 08 FEBRUARY 2006 CLAIMANT: LIENHOLDER: SAMUEL O NEAL TOOLE NONE INITIAL ORDER PROCEDURAL THIS CONTESTED administrative proceeding was heard on 21 August 2006, in Chattanooga, Tennessee, before William Jay Reynolds, Administrative Judge, assigned by the Secretary of State, Administrative Procedures Division, and sitting for the Commissioner of the Tennessee Department of Safety. The Department was represented by Will Lundy. Claimant, Samuel O Neal Toole appeared pro se. Officer Shane McKee from the Bradley County Sherriff s Department appeared on behalf of the Department. The Technical Record was admitted without objection. The Laboratory Report was admitted as Exhibit One to the Department s proof without objection. Federal Tax Form W-2G was admitted as Exhibit Two to the Claimant s proof without objection.

3 THE SUBJECT of this hearing was the proposed forfeiture of the subject One Thousand Nine Hundred Eighty Six and No/100 ($1,986.00) Dollars and Smith and Wesson.40 Caliber Handgun (#TDS 7705), two.40 caliber clips, One Digital Scale Model Fx-150 seized from the Claimant s rental vehicle during an 08 February 2006 stop for narcotics related violations of Tennessee Code Annotated, et seq, FINDINGS OF FACT 1. ON FEBRUARY 8, 2006, Shane McKee, of the Bradley County Sherriff s Department, followed the Claimant s vehicle for a distance of one or two miles. Officer McKee noticed the Claimant operating his vehicle at an excessive speed and following too closely to other motorists. Officer McKee estimated the Claimant s speed to be in excess of 75 miles per hour. It was on this basis the Officer initiated a traffic stop. 2. Officer McKee indicated the claimant was cooperative, voluntarily informing Officer McKee illegal drugs and a gun were in the car. 3. Officer McKee stated he could see the marijuana in plain view. 4. Claimant advised he did not have a permit to carry the handgun. 5. Officer McKee detected a masking odor coming from the car. 6. Officer McKee searched the vehicle. 7. Search of the vehicle revealed packaged and separated cocaine and marijuana in the interior console. Additionally, digital scales were found with powder residue on scales. 8. Search of the person of the claimant revealed one (1) bag of marijuana and One Thousand Nine Hundred Eighty Six and No/100 ($1,986.00) Dollars in folded bills. 2

4 9. The substances were sent for forensics identification. The laboratory report indicated the substances taken from the claimant were 9.97 grams of Schedule VI Marijuana and grams of Schedule II Cocaine. 10. During the field examination the Claimant gave the Officer different accounts as to the source of the cash. 11. Claimant testified he was traveling to Dayton, Ohio to visit his fiancée and to keep a music appointment. He is a self described music producer. 12. Claimant denied granting permission to search his vehicle. 13. Claimant testified the substances were not for sale, but for personal use. 14. Claimant testified the handgun was for protection. 15. Claimant testified the money came from the Two Thousand Two Hundred Seventy Six and No/100 ($2,276.00) Dollars gross gambling winnings won February 4, 2006 in the Tribal Casino at Cherokee, North Carolina. 16. Claimant denied being questioned about the source of the money at the scene. 17. Claimant gave no account for possession of the scales. CONCLUSIONS OF LAW 1. Tennessee Code Annotated, (a) (6) (A) authorizes the forfeiture of 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, negotiable instruments, and securities used, or intended to be 3

5 used, to facilitate any violation of the Tennessee Drug Control Act. The Department must establish by a preponderance of the evidence, or as a more probable conclusion, that the money to be forfeited was received in consideration for or in exchange for a controlled substance. Goldsmith v Roberts, 622 S.W.2d 438 (Tenn.Ct.App.1981). Here, the money was discovered on the claimant incident to a traffic stop. The circumstances are suspicious, however, it is as probable the money was won during legalized gaming as in exchange for controlled substances. 2. Tennessee Code Annotated, (a) (7) authorizes the forfeiture of All drug paraphernalia as defined by Scales are squarely within the definition. 3. In order to satisfy the relationship requirement of the statute prohibiting use or carrying of firearm during and relation to drug trafficking offense, the government must merely prove that possessor of weapon intended to have it available for possible use during or immediately following transaction, or that it facilitated transaction by lending courage to possessor; possessor s sole purpose in carrying weapon need not have been facilitation of drug trafficking crime. 18 U.S.C.A. 924 ( c ) ( 1)., U.S. v Johnson, 1996, 940 F. Supp The Department of Safety provides permit for citizens to make application to carry firearms at Tennessee Code Annotated, The Claimant testified he did not have a permit from Tennessee or any other state. 5. Tennessee Code Annotated, defines carrying or possession of weapons. A person commits an offense who carries with the intent to go armed a firearm and same is an offense against the public health, safety, and welfare. A person commits an offense who possesses any deadly weapon with intent to employ it in the commission of or escape from an offense. The courts have attributed the term offense to circumstances analogous to the facts here. This section prohibits a person from carrying a weapon with the intent to go armed. It also 4

6 prohibits mere possession of a handgun by certain convicted felons and mere possession of deadly weapon by one who intends to use it to commit an offense. 6. Intent may be inferred from both direct and circumstantial evidence. State v Washington, 658 S.W.2d 144, 146 (Tenn.Crim.App.1983). The necessary intent to support a conviction for carrying a weapon with the intent to go armed may be proven by circumstances surrounding the carrying of the weapon. See Cole v State, 539 S.W.2d 46, 49 (Tenn. Crim. App. 1976); Bennett v. State, 530 S.W.2d 788, 792 (Tenn.Crim.App.1975). As the Tennessee Supreme Court held in Hill v State, 298 S.W.2d 799 (Tenn.1957), the purpose of going armed should be discerned from the facts of each particular case. At the hearing, the proof showed a.40 caliber with two clips found in the console area of the Claimant s vehicle. The claimant had quick access to the weapon and the circumstantial evidence indicates it was possessed with the intent to go armed. 7. The Constitution of the State of Tennessee guarantees that "the people shall be secure in their persons, houses, papers and possessions, from unreasonable searches and seizures..." Tenn. Const.art. I, 7. The Fourth Amendment of the United States Constitution provides the same guarantee. Ordinarily, a legal search and seizure requires a warrant. United States v. Place, 462 S.W.2d 696, 701 (1983). Any search and seizure conducted without a warrant is presumed unreasonable. State v. Bartram, 925 S.W.2d 229, (Tenn.1996). The State then has the burden of showing that the search and seizure was conducted within a recognized exception to the warrant requirement. State v McClananhan, 806 S.W.2d 219, 220 (Tenn. Crim. App. 1991). One such exception is the doctrine of search incident to arrest. State v Transou, 928 S.W.2d 949, 951 (Tenn. Crim.App. 1996) (citing Chimal v California, 395 U.S. 752, 762 (1969)). Under the doctrine of search incident to arrest, "a lawful custodial arrest 5

7 creates a situation which justifies the contemporaneous search without a warrant of the person arrested and of the immediately surrounding area." New York v Butler, 453 U. S. 454, 457 (1981). In order to justify a search incident to arrest, the searching officers must have probable cause to arrest the individual in question. Id. Probable cause to arrest exists if the officers have "facts and circumstances within their knowledge and of which they had reasonably trustworthy information [that] [are] sufficient to warrant a prudent man in believing that the [individual in question] had committed or was committing an offense." State v Melton, 638 S.W. 2d 342, (Tenn.1982) quoting Beck v. Ohio, 379 U.S. 89, 91 (1964)). The Claimant informed the Officer an offense had been committed when he announced the presence of illegal drugs and firearms in the car. The Officer could see illegal marijuana in plain view and he could observe the claimant and odors emanating from the vehicle. The totality of the circumstances amply justify the search without permission or warrant. 8. IT IS CONCLUDED that pursuant to the provisions of Tennessee Code Annotated, (a) (6) (A) the money in the amount of One Thousand Nine Hundred Eighty Six and No/100 ($1,986.00) Dollars is subject to forfeiture. However, the Department failed to prove, by a preponderance of the evidence, the money was intended to be furnished as a value in the exchange for a controlled substance; and 9. IT IS CONCLUDED that pursuant to the provisions of Tennessee Code Annotated, (a) (7) the one Digital Scale Model Fx-150 is subject to forfeiture. The Scales are drug paraphernalia as defined by and shall be forfeited to the agency together with any of the scheduled illegal substances seized; and 10. IT IS CONCLUDED that pursuant to the provisions of Tennessee Code Annotated, supra, the Smith and Wesson.40 Caliber Handgun (#TDS 7705), two.40 caliber 6

8 clips, are subject to forfeiture. The firearm was described as protection and was easily accessible to the Claimant during the commission of drug offenses. The handgun and two clips shall be forfeited to the agency; and DECISION IT IS THE DECISION of the Administrative Judge the money seized in the amount of One Thousand Nine Hundred Eighty Six and No/100 ($1,986.00) Dollars should immediately be returned to the Claimant. FURTHER, the one Digital Scale Model Fx-150 seized is forfeited to the seizing agency as provided by law. FURTHER, the Smith and Wesson.40 Caliber Handgun (#TDS 7705) and two (2) clips seized are forfeited to the seizing agency as provided by law. ORDERED AND ENTERED this 29th day of January, WILLIAM JAY REYNOLDS ADMINISTRATIVE JUDGE FILED in the Administrative Procedures Division, Office of the Secretary of State, this 29th day of January, CHARLES C. SULLIVAN, II, DIRECTOR ADMINISTRATIVE PROCEDURES DIVISION 7