DEPARTMENT OF SAFETY vs. $6, in US Currency, Seized from: Todd Walters, Date of Seizure: August 21, 2008, Claimant: Todd Walters

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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. $6, in US Currency, Seized from: Todd Walters, Date of Seizure: August 21, 2008, Claimant: Todd Walters 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 ) ) v. ) DOCKET NO J ) DOS Case No. E7762 $6, in US Currency ) Seized from: Todd Walters ) Date of Seizure: August 21, 2008 ) Claimant: Todd Walters ) INITIAL ORDER This matter came on to be heard on July 14, 2009, in Fall Branch, Tennessee before Joyce Grimes Safley, Administrative Judge, assigned by the Secretary of State, and sitting for the Commissioner of the Tennessee Department of Safety. Ms. Nina Harris, Attorney for the Department of Safety, appeared on behalf of the State or Department of Safety. Claimant Todd Walters is deceased. Claimant was represented by Mr. David Crockett, attorney, of the Elizabethton, Tennessee Bar. Ms. Rachel Eldridge, mother of the Claimant, was present. The subject of this hearing was the proposed forfeiture of $6610 in U.S. currency for its alleged use in violation of the Tennessee Drug Control Act, , et seq., and T.C.A After consideration of the evidence offered, the arguments of counsel, and the entire record in this matter, it is ORDERED that the seized currency be immediately FORFEITED to the seizing agency. This decision is based upon the following Findings of Fact and Conclusions of Law.

3 FINDINGS OF FACT 1. The facts of this case are relatively simple. On August 21, 2008, Lt. Tom Smith of the Elizabethton, Tennessee s Sheriff s Department was operating his radar unit when he clocked Claimant Todd Walters traveling approximately 79 mph in a 55 mph speed zone. 2. Lt. Smith initiated a traffic stop on Claimant Walters. Based upon his past knowledge of Claimant Walters illegal drug use, Lt. Smith called for the nearby K9 unit to come to the scene. 3. When the K9 officer and dog arrived, the K9 dog alerted on Claimant s vehicle. 4. After the K9 dog alerted to the presence of illegal drugs, the officers initiated a search of the vehicle. 5. The officers found a large amount of cash, $6, in U.S. currency, in the console of the car, and found three separate baggies of marijuana in the car. The officers also found smoking paraphernalia in Todd Walters vehicle The marijuana totaled 19.4 grams in weight (which is slightly greater than a felony amount of marijuana). The officers found packaged marijuana and hydroponic marijuana in a backpack belonging to Mr. Walters. Hydroponic marijuana was also discovered in the console of the truck. Additionally, the officers discovered empty baggies that had marijuana residue in them. A passenger in the Walters vehicle also had a bag of marijuana in a nylon cooler. 1 Actually, the vehicle which was being driven by Mr. Walters was owned by his step-father, Alec Eldridge. 2

4 7. According to Officer Ryan, hydroponic marijuana is sold by the bud, and can sell for up to $120 for one bud. Officer Ryan opined that there was several thousand dollars worth of hydroponic marijuana present. 8. The cash was not in sequential order by denominations of the bills. Rather, the bills were mixed up in various denominations The Elizabethton Sheriff s Department officers seized the $ in currency. 10. At the time of the seizure, Todd Walters told the officers that the money was to pay his employees. Mr. Walters stated that the money was to be used for payroll for his employees. He also told the officers that the marijuana was his marijuana, and was separated into baggies due to the different grades of marijuana. 11. Officer David Ryan, of the Carter County Sheriff s Department also testified on behalf of the State. Lt. Smith asked Officer Ryan to bring his K9 partner, Diesel, to the scene of the traffic stop with Mr. Walters. When Diesel was brought to the Walters vehicle, Diesel immediately began alerting at the back bumper of the truck. 12. On September 26, 2008, Todd Walters (by and through his attorney) filed a Petition for Hearing and asserted a claim for the seized $ Sadly, Claimant Todd Walters died on January 11, 2009 as a result of an intracranial hemorrhage ( stroke ). 2 Had the currency been recently issued by a bank in exchange for a check, as Claimant contended, it makes sense that the currency would have been issued by a bank in an organized, sequential order by denomination. 3

5 14. Counsel for Claimant Walters represented that Claimant Walters has no spouse and no issue who would be heirs to his estate 15. According to filings in this matter, Rachel Eldridge is the natural mother and the only heir to Claimant Walters estate. However, at the hearing, Ms. Eldridge also identified a half sister of Todd Walters who is an heir to Mr. Walters estate. 16. At the time of the hearing, no amended Petition for Hearing/Claim had been filed on behalf of Claimant Walters estate. No letters testamentary were presented. No order appointing Ms. Eldridge as the Administratrix of Todd Walters estate was presented. 17. Ms. Eldridge was present at the hearing and asserted that she was asserting a claim for the seized currency, and was entitled to the seized money as the sole heir to Todd Walter s estate. Ms. Eldridge averred that she was asserting a claim to the seized money as a representative of Mr. Walters estate. 18. Reece Davis testified on behalf of the Claimant. He testified that he was a carpenter who worked with Todd Walters. According to Mr. Davis, the currency which was seized was cash which was going to be paid to the workers on Mr. Walters work crew (payroll). No member of the work crew asserted a claim to any portion of the seized currency. 3 Other than Mr. Reece s testimony, there was no evidence to support the idea that the seized currency was for payroll purposes. 3 Claimant attempted to enter check stubs from Kent Builders into evidence. No foundation was laid for admission of the check stubs, there was no authentication of the check stubs, and there were no check stubs which were for the relevant time period of the seizure of currency. The State objected to the admission of any of the check stubs on the basis of lack of foundation and lack of authentication. The objection was sustained and the aforementioned check stubs were excluded from evidence. 4

6 18. Ms. Eldridge lives in New Castle, Indiana. She is not a resident of the State of Tennessee. Ms. Eldridge admitted that she knew her son smoked marijuana. She also testified that he had previously been accused of selling marijuana, but he was not convicted. CONCLUSIONS OF LAW 1. As a preliminary matter, the State moved for dismissal of this contested case hearing due to lack of standing on the part of Ms. Eldridge to assert a claim for herself or on behalf of Mr. Walter s estate. 2. Counsel for Claimant argued that Ms. Eldridge was Mr. Walters only heir and that his estate would pass to Ms. Eldridge intestate. Claimant asserted that the claim now pending is the claim of Mr. Walters estate. Claimant also asserted that it was not necessary for Ms. Eldridge to be appointed Administratrix of the estate in order to represent the estate. 3. T.C.A states: Letters testamentary or of administration required No person shall presume to enter upon the administration of any deceased person s estate until the person has obtained letters of administration or letters testamentary. 4. No letters testamentary or letters of administration were presented on behalf of Mr. Walters estate. 5. It was represented that Ms. Eldridge was Mr. Walter s only surviving relative. This, in fact, was not correct. Mr. Walters has a half-sister. 4 It is not clear whether Mr. Walters biological father is alive or not. While T.C.A Tennessee law does not differentiate between half-siblings and siblings of whole blood for purposes of intestate succession. See T.C.A

7 sets forth intestate succession, it makes it clear that If there is no surviving issue, [the estate] shall pass to the decedent s parent or parents equally. 6. No amended claim or amended petition was filed on behalf of Mr. Walters estate. 7. Mr. Walters himself, at the time seizure, told the officers that the currency was for his work crew s payroll. No claims have been asserted on behalf of any of the workers. 8. Claimant also argued that if there was intestate succession, it would not be necessary for Ms. Eldridge to apply for appointment as Administratrix of the estate. The undersigned disagrees. 9. Standing is a legal doctrine applied in appropriate cases to determine whether an individual is entitled to seek judicial relief. Smith County v. Enoch, 2003 WL , 8 (Tenn.Ct. App. 2003). In determining standing, the focus is on the party, rather than on the merits of the party s claim. Id. At page The doctrine of standing is used by courts to refuse to determine the merits of a legal controversy, irrespective of its correctness, where the party advancing it is not properly situated to bring the action or claim. City of New Johnsonville v. Handley, 2005 WL p. 11 (Tenn. Ct. App. 2005). 11. Ms. Eldrege has the burden of proof to show that she has standing to assert a claim on behalf of Mr. Walters estate or a claim as his heir. Rule (3), The Rules of Procedure for Asset Forfeiture Hearings, Department of Safety (Revised December 2007). 6

8 12. Ms. Eldrege does not meet her burden of proof in establishing standing either on the behalf of Todd Walters estate, nor individually as an heir to Mr. Walters estate. 13. Nor is it clear whose money the seized currency actually belonged to. According to Mr. Walters, in his discussion with the seizing officers, the currency was payroll which he intended to give to his workers. However, no workers on Mr. Walters work crew filed a claim to the seized monies. 14. Ms. Eldredge has no legally protectable interest in the seized currency in this proceeding, either as a legally appointed Administratrix or personal representative of Mr. Walters estate, or as an individual claimant. She lacks standing to assert a claim to the seized currency. 12. Without the standing to assert this claim, Mr. Walters claim must be dismissed. 13. For the sake of argument, even if Ms. Eldredge did have standing to assert a claim either as a representative or an individual, such a claim would fail. 14. The State has the burden of proving, by a preponderance of the evidence, that the seized currency 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). 15. T.C.A (a)(6)(A) authorizes the forfeiture of everything of value furnished, or intended to be furnished in exchange for controlled substance, all 7

9 proceeds traceable to such an exchange, and all moneys, negotiable instruments, and securities used, or intended to be used, to facilitate any violation of the Tennessee Drug Control Act. 16. The State is not required to trace money or proceeds to specific drug sales; as long as there is some proven nexus to connect the seized property with illegal drug sales activity. Circumstantial evidence can be used to make this connection. Lettner v. Plummer, 559 S.W.2d 785 (Tenn. 1977); Goldsmith v. Roberts, 622 S.W. 2d 438 (Tenn.Ct. App. 1981). 17. Among the factors which may be considered in determining whether the State has met its burden are whether the money/property was found in close proximity to the illegal controlled substance; whether marked money was found with other money; whether the Claimant was unemployed; whether there is evidence or records of a large-scale drug operation; whether the Claimant is associated with known traffickers or users; the quantity of the money involved; the quantity of the drugs involved; the packaging of the drugs; and the prior records of those involved. Lettner v. Plummer, 559 S.W.2d 785 (Tenn. 1977); Goldsmith v. Roberts, 622 S.W. 2d 438 (Tenn.Ct. App. 1981). (Emphasis added.) 18. T.C.A permits an inference from the amount of controlled substance or substances possessed by an offender, along with other relevant facts surrounding the arrest, that the controlled substance or substances were possessed with the purpose of selling or otherwise dispensing. 19. In Mr. Walters s case, he possessed 19.4 grams of marijuana, which was packaged in three baggies. There were other baggies present with marijuana residue 8

10 present. Some of the bagged marijuana was hydroponic marijuana buds which are especially potent and higher priced than regular marijuana. 20. T.C.A states as follows: T.C.A Criminal offenses and penalties. --- (a) It is an offense for a defendant to knowingly: *** (4) Possess a controlled substance [such as marijuana] with intent to manufacture, deliver or sell such controlled substance. 21. T.C.A (g)(1) provides that subsection (a)(4) is violated [intent to manufacture, deliver, or sell) with respect to a Schedule VI controlled substance classified as marijuana when the amount is not less than one-half ounce ( grams) up to ten pounds (4535 grams) of marijuana. Such a violation is a Class E felony. 22. Because Claimant possessed greater than one-half ounce of marijuana, packaged in three bags, the inference is made that Claimant intended to deliver or sell the marijuana in his possession. 23. Among the factors which may be considered in determining whether the State has met its burden are whether the money/property was found in close proximity to the illegal controlled substance; whether marked money was found with other money; whether the Claimant was unemployed; whether there is evidence or records of a large-scale drug operation; whether the Claimant is associated with known traffickers or users; the quantity of the money involved; the quantity of the drugs involved; the packaging of the drugs; and the prior records of those involved. Lettner v. Plummer, 559 S.W.2d 785 (Tenn. 1977); Goldsmith v. Roberts, 622 S.W. 2d 438 (Tenn.Ct. App. 1981). 9

11 24. In this matter, Claimant s currency was found in close proximity to the marijuana. The technical record, which was entered into evidence without objection, notes that Mr. Walters girlfriend, Lisa Livingston, stated Mr. Walters had not worked in over three months at the time of his arrest due to a medical condition. 25. The evidence presented at the hearing preponderates in favor of the currency being illegal drug sales proceeds, or currency which was intended to be used for illegal drug purchases. Accordingly, it is ORDERED that the above captioned currency be immediately forfeited to the seizing agency. It is so ordered. This Order entered and effective this 9th day of November, Thomas G. Stovall, Director Administrative Procedures Division 10