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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. One 1998 Chevrolet S-10 VIN NO.: 1GCCS1948WK258072, Seized From: Alton Barrett, Date of Seizure: 1/22/09, Claimant: James A. Barrett, 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. J0447) One 1998 Chevrolet S-10 VIN NO.: 1GCCS1948WK Seized From: Alton Barrett Date of Seizure: 1/22/09 Claimant: James A. Barrett Lien Holder: N/A INITIAL ORDER This matter was heard in Nashville, Tennessee on July 27, 2009, 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, Staff Attorney for the Department of Safety, represented the State. James Alton Barrett, the Claimant, represented himself. The issue presented for review is whether the State properly seized the above referenced vehicle from the Claimant on January 22, 2009, for its intended use to purchase and transport drugs by Claimant s son Alton Barrett. After further consideration it is DETERMINED that Claimant s vehicle was properly seized and should be forfeited to the seizing agency. This conclusion is based on the following findings of fact and conclusions of law:

3 FINDINGS OF FACT 1. On January 22, 2009, Wilson County Sheriff s Department stopped Alton Barrett, son of James A. Barrett, Claimant, who was driving Claimant s 1998 Chevrolet S-10 truck, for violation of the seat belt law. Claimant does not dispute the legality of the traffic stop. 2. During the traffic stop, the Deputy called for a K-9 unit to respond to assist. The K-9 alerted the Deputies to the presence of narcotic odor coming from the vehicle. 3. Deputies discovered a cigar butt with green plant material and drug paraphelia used to smoke crack or to free base cocaine in the vehicle Alton Barrett told officers that the truck was registered to his father, but that he drove and took care of the vehicle, and that his father let him have the truck to use. All the personal effects in the vehicle, including clothing, barber s license and compact disks, belonged to Alton Barrett. The truck was not insured. 5. The passenger, Antonio Merritt, told officers that he was taking Barrett to buy marijuana from an unidentified male subject, but the seller did not show up so they were driving in search of another drug source when they were stopped. 6. Claimant James A. Barrett testified that he did not give consent for his son Alton Barrett to drive his vehicle on the day of the traffic stop. He had left his keys on the dresser. He believes his son took the keys without permission. He does on occasion 1 The drug paraphernalia that was found in the vehicle as well as the cigar butt with green plant material may not have not been a sufficient quantity to constitute grounds for the Department of Safety to forfeit Claimant s vehicle under T.C.A (a) (4)(C). However, the Claimant s son did intend to use the Claimant s vehicle to buy drugs, which allowed Wilson County Sherriff s Department to seize the vehicle under T.C.A (a)(4). Thus the issue in this case is whether the Claimant knew or should have known of his son s illegal activity at the time property was seized. 2

4 give his son permission to drive the truck. His son will not drive the other family vehicles because they are too old. Mr. Barrett usually drives his son to and from work, but his son drives himself to other destinations. Mr. Barrett allowed the insurance to lapse on the truck. He transferred his insurance coverage to his passenger car. He does not recall how long it has been since the insurance was allowed to lapse. Mr. James Barrett usually pays for gas and changes the oil in the truck. 5. Mr. Barrett is well aware that his son has been involved in the sale and purchase of illegal drugs in the past and has been in prison for violation of drug laws. Alton Barrett has also been incarcerated for violation of parole. Alton Barrett had recently been released from prison and was living with his parents at the time of the seizure. James A. Barrett also testified that he did not have knowledge that his son intended to use the vehicle to transport or purchase drugs on the date of seizure, and did not specifically give his son permission to use the truck on that date. He would like for the vehicle to be returned, because he uses it to transport the wheelchair of his 43-yearold daughter with cerebral palsy. The other family vehicles cannot accommodate the wheelchair. CONCLUSIONS OF LAW 1. The Notice of Seizure and Drug Asset Forfeiture Warrant in this case were issued pursuant to [1] TENN. CODE ANN (a)(4), which provides that, All conveyances... which are used, or are intended for use, to transport, or in any manner facilitate the transportation, sale or receipt of drugs in violation of the Tennessee Drug Control Act are subject to forfeiture under the law; and [2] TENN. CODE ANN

5 451(a)(6)(A), which provides that 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... used, or intended to be used, to facilitate any violation of the Tennessee Drug Control Act... are subject to forfeiture under the law. 2. The Tennessee Department of Safety bears the burden of proof in forfeiture proceedings, and must therefore prove, by a preponderance of the evidence, that the seized property was used in a manner making it subject to forfeiture, pursuant to law. [See, TENN. CODE ANN (a).] As set out in Paragraph 2, supra, when the seized property belongs to an absent owner, the State must also prove, by a preponderance of the evidence, that the owner knew that the vehicle was being used in a manner making it subject to forfeiture and consented to its use. TENN. CODE ANN (c). Failure to carry the burden of proof operates as a bar to the proposed forfeiture. TENN. CODE ANN (b)(1); and, Rule , TENN. COMP. R. & REGS., Rules of the Tennessee Department of Safety. 3. The State has met its burden to show that the seized vehicle was used to facilitate the transportation, sale or receipt of drugs in violation of the Tennessee Drug Control Act. Although the quantity of drugs found in the vehicle may not have been sufficient in itself to forfeit the vehicle, the fact that the driver and passenger were using the vehicle to attempt to purchase drugs does subject it to forfeiture. One need not be successful in making the purchase. Using the vehicle for the purpose of buying drugs is what subjects it to forfeiture in this case. The preponderance of the evidence is that the 4

6 driver and passenger were seeking to make a drug purchase when they were stopped by police. 4. 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). 5. The Claimant asserts that he is an innocent owner of the truck as contemplated in TCA (c), and (f)(1) because he claims that he did not know that the truck was being used to violate the law on January 22, 2009, and did not consent to such use. However, his son s past legal problems with drugs and incarceration put him on notice that his son might be engaging in drug-seeking behavior. His son lived in the house with him, yet he did not put the vehicle keys in a place that could not be accessed without his cooperation. Despite that knowledge of his son s drug history, the Claimant did nothing subsequently to prevent his son s access to the truck, or to prevent him from repeating the activities which led to his prior legal troubles. By his own testimony, he allowed his son to drive the truck independently from time to time. It is therefore concluded that the Claimant cannot be considered an innocent owner in this case, in order to be exempted from the operation of the drug asset forfeiture statutes. 5

7 6. The State s proof established, by a preponderance of the evidence, that the 1998 Chevrolet S-10 was used in a manner that violated the Tennessee Drug Control Act. It is therefore concluded that the seized truck was subject to forfeiture pursuant to TENN. CODE ANN (a)(4) and (a)(6)(A). Under the facts of this case, given his failure to take reasonable steps to prevent use of his vehicle for drug-seeking behavior, the Claimant is not entitled to the return of the vehicle under a claim that he is an innocent owner of the vehicle. Accordingly, it is hereby ORDERED that the subject 1998 Chevrolet S-10 Truck shall be forfeited to the Seizing Agency for disposition as provided by law. This Initial Order entered and effective this 11th day of February, Margaret R. Robertson Administrative Judge Filed in the Administrative Procedures Division, Office of the Secretary of State, this 11th day of February, Thomas G. Stovall, Director Administrative Procedures Division 6