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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 vs. Two Hundred Seventy-Five Dollars $ in US Currency, Seized From: Brenda K. Gray, Date of Seizure: February 1, 2011, Claimant: Brenda K. Gray, Lien Holder: N/A 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 v. DOCKET NO: J (D.O.S. Case No: L2738) Two Hundred Seventy-Five Dollars ($275.00) in US Currency Seized From: Brenda K. Gray Date of Seizure: February 1, 2011 Claimant: Brenda K. Gray Lien Holder: N/A INITIAL ORDER This hearing in this matter was conducted in Lawrenceburg, Tennessee, on July 27, 2011, before Margaret R. Robertson, Administrative Law Judge, assigned by the Secretary of State, and sitting for the Commissioner of the Tennessee Department of Safety. Orvil Orr, Attorney for the Tennessee Department of Safety, appeared for the Department of Safety. The Claimant, Brenda K. Gray, represented herself. The subject of this hearing was the proposed forfeiture of the seized currency for its alleged use or intended use or receipt 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 currency be immediately

3 RETURNED to the Claimant. This decision is based upon the following Findings of Fact and Conclusions of Law. FINDINGS OF FACT 1. On February 1, 2011, Detectives Zaidan and Stanfield of the Maury County Sheriff s Department observed two men purchasing a quantity of pseudoephedrine in Wal-Mart. The men were then driven to CVS Pharmacy, where one man purchased lithium batteries and the other purchased another quantity of pseudoephedrine. Pseudoephedrine and lithium are ingredients used to produce methamphetamine. 2. Claimant Brenda Gray was the driver of the vehicle in which the two men were being transported. The detectives noted that the front seat passenger was not wearing a seat belt, and made a traffic stop of the vehicle. William Gray, ex-husband of the Claimant, was the front seat passenger. Jimmy Staggs rode in the back seat. After Mr. Staggs was read his Miranda rights, he told the detectives that he purchased pills for Mr. Gray with currency he obtained from Ms. Gray, who had told them to purchase the pills. Mr. Gray, having been Mirandized, admitted he had purchased pills at Kroger and Wal-Mart and purchased lithium batteries at CVS Pharmacy. He admitted he was doing this to support his family, but would not reveal the identity of the person he supplied because he feared for his life. 3. When Ms. Gray was advised of her rights, she admitted to driving the two men around, but denied knowing what they intended to purchase. When the vehicle was searched by Detective Stanfield and Bucky Roland, a canine officer, a camera case found under the driver s seat was found to contain a plastic bag with 30 Lortab tablets, which 2

4 the detectives interpreted as packaged for resale, and less than ½ ounce of marijuana. In the middle of the front seat, a small plastic bag of off-white crystalline substance was found which constituted just less than 2 grams of methamphetamine. A plastic pipe and an aluminum boat pipe were found nearby. Ms. Gray was charged with possession of these illegal substances and paraphernalia. 4. Mr. Gray and Mr. Staggs identified Ms. Gray as the source of the currency they used to make their purchases. Mr. Staggs said he was expected to get beer and cigarettes also, but did not have enough currency left to make those purchases. Ms. Gray denied that she gave the men money. She said that her money is separate from Mr. Gray s money. Ms. Gray possessed $276 on her person, which the detectives seized in the belief that it was derived from the illegal resale of Lortab or pseudoephedrine. Ms. Gray is unemployed and receives her disability check of $874 per month on the 3 rd day of the month. As this was the 1 st day of the month, the detectives were convinced this currency was not proceeds of a monthly disability payment. Ms. Gray said she had been saving the money to pay her taxes. She did not explain why, if the money was meant to be used to pay taxes, she was carrying it around with her. Alternatively or in addition, Ms. Gray claimed she borrowed $513 in December from Humboldt in order to have cash for holiday presents for her grandchild and to pay back taxes. She submitted as a late exhibit a loan agreement document through World Finance Corporation which attests that she financed the amount of $ on December 3, 2010, of which $ was applied to her prior account and $ was paid to her or paid on her behalf. Ms. Gray testified that the bank teller was willing to tell police where the money in her possession 3

5 had come from. She denied ever being in trouble before and claimed she would not drive anyone to the store again if she could be held liable for what they did. 5. Ms. Gray said that the vehicle is driven by many people, making the point that any number of people might have left the drugs and paraphernalia found by the officers, but she did not identify them. She explained that the vehicle belongs to her exfather-in-law, and that her ex-husband is blind and cannot drive. She said the elder Mr. Gray would allow anyone to use the car. She denied knowing what Mr. Gray and Mr. Staggs were doing when she drove them to their various destinations. She only saw batteries among their purchases. She did not consider going to Kroger, CVS and Wal- Mart redundant because they are different stores and sell a lot of different things. She merely took them where they asked to go. 6. Ms. Gray s son has been arrested in the past for a violation involving methamphetamines, but he was not living with her at the time. She denied knowing much about methamphetamines or what the charges against him involved. Ms. Gray admitted having used meth as a teenager, but denied current use or ever having sold drugs. As she observed, If so, I wouldn t be borrowing money! 7. Ms. Gray personally takes about ten different medications for her heart, high blood pressure, high sugar and back problems, including Lortabs by prescription. Mr. Gray has a prescription for Lortabs also. Ms. Gray pled guilty to charges of possession and is currently on two years probation. 4

6 8. Ms. Gray has her own vehicle, but it was not running well at the time. She went in it to get Mr. Gray s father s car to use because her vehicle needed repairs at the time and was not reliable. CONCLUSIONS OF LAW 1. 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). 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 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 5

7 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 complete, or that the process would not actually create methamphetamine is completed. 6

8 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, 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 7

9 (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; *** 12. 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. 13. 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). The same reasoning applies when currency is at issue. 14. The officers took $275 in currency from Ms. Gray on the basis that the purchase by her two male companions of a quantity of pseudoephedrine with cash one of them claimed came from her and the presence of Lortab pills and other drugs in the vehicle she was driving led them to suspect that the currency in her possession was received from the illegal sale of drugs. Neither Mr. Gray nor Mr. Staggs attended the hearing. Detective Zaiden reported the hearsay testimony that Mr. Staggs claimed the 8

10 currency he used for his purchases came from Ms. Gray, but Mr. Staggs credibility cannot be determined here because he was not present. Ms. Gray, the Claimant for the seized currency, was not only present, but was a credible witness. Unlike the two men, she had two legitimate sources of currency, her monthly disability checks and a documented loan. She was not observed making any of the purchases. She claimed not to know what items the men were purchasing, and was convincing when she said that their three destinations, Wal-Mart, CVS and Home Depot, did not appear duplicative or suspicious to her. The terms of the loan she entered into are sufficiently onerous that it does not seem likely that she would have borrowed the money on those terms if she was making an income selling drugs. The vehicle did not belong to her, and was driven by other people as well, so the inference that things found in the vehicle were hers because she was driving is a weak inference. She did not admit the drugs and paraphernalia were hers, there was no evidence other than their presence in a vehicle belonging to someone else that she happened to be driving to associate them with her. It is as likely or more likely that the drugs belonged to her ex-husband, his father or friends of his father who also use the vehicle. Furthermore, Claimant denied any participation in the use or sale of illegal drugs, and there was no evidence, other than propinquity to the drugs found in someone else s vehicle, with which to associate her with drug trafficking. It is noted that there is no mention in this record of whether any action was taken against the vehicle or the vehicle s owner. 15. There was no proof offered to show that Claimant knew or should have known the two men were purchasing suspicious amounts of pseudoephedrine other than 9

11 the detective s report of Mr. Stagg s statement. Since Mr. Staggs was not present, and Claimant persuasively denied Detective Zaidan s allegation that Staggs implicated her, Mr. Staggs reputed self-serving statement is neither reliable nor convincing. If it is possible to prove the null hypothesis, the Claimant has met her burden to show that she did not have reason to know that the money in her possession that was seized from her was intended to be used in a manner that violates the Tennessee drug laws. She had the money in her possession, did not make any of the questionable purchases, and convincingly denied both participating in any drug sales and providing any money to assist others to violate the law. She qualifies as an innocent owner of the currency taken from her. 16. The State has failed to meet its burden of proof in this case. There is not a preponderance of evidence to show that Ms. Gray knew the two men were purchasing unusual amounts of pseudoephedrine, and there is only the presence of a small quantity of drugs in the vehicle she and the two men were using to associate her with drugs. There is no evidence that makes it more likely the drugs found belonged to her than to either of the other occupants. There is no evidence other than the existence of unattributed drugs in the car and the reputed statement by the absent Mr. Staggs to associate any money she possessed or might have shared with the two men with any drug dealings. There is no evidence that she knew what purchases the men were making. 17. The State failed to show by a preponderance of the evidence that claimant s currency was derived from or intended to be used to facilitate a violation of drug laws. 10

12 Claimant. Accordingly, it is ORDERED that the seized currency be RETURNED to the It is so ordered. This Order entered and effective this 25 day of October, 2011 Robertson Administrative Judge Filed in the Administrative Procedures Division, Office of the Secretary of State, this 25 day of October, 2011 Thomas G. Stovall, Director Administrative Procedures Division 11