Follow this and additional works at:

Transcription

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 DOS Case. No. H6872, vs. $42, in U.S. CURRENCY, SEIZED FROM: EDDIE STEPHENS, SEIZURE DATE: APRIL 22, 2007, CLAIMANT: EDDIE STEPHENS, LIENHOLDER: N/A 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: ) ) TENNESSEE DEPARTMENT ) OF SAFETY, ) Docket No J ) DOS Case. No. H6872 v. ) ) $42, in U.S. CURRENCY ) SEIZED FROM: EDDIE STEPHENS ) SEIZURE DATE: APRIL 22, 2007 ) CLAIMANT: EDDIE STEPHENS ) LIENHOLDER: N/A ) INITIAL ORDER This matter came to be heard on December 8, 2009, before Margaret R. Robertson, Administrative Judge, assigned by the Secretary of State, and sitting for the Commissioner of the Tennessee Department of Safety in Nashville, Tennessee. Ms. Cynthia Gross, attorney for the Metropolitan Nashville Department of Law, represented the Department of Safety or the State. Claimant Eddie R. Stephens was present, and was represented by his attorney, Paul J. Walwyn of the Nashville Bar. The subject of this hearing was the proposed forfeiture of the above referenced currency seized for its alleged use in violation of the Tennessee Drug Control Act, T.C.A , et seq. and T.C.A , et. seq, and T.C.A

3 This matter became ready for consideration on February 3, 2009, after Claimant s attorney notified opposing counsel and the judge that he had decided not to file proposed findings of fact. After a review of the record and the arguments of the parties at hearing, it is determined that the seized $42, in U.S. Currency should be forfeited to the seizing agency. FINDINGS OF FACT 1. Officer Melody Saxon stopped driver Eddie Stephens, Claimant in this proceeding, on September 8, 2008 for driving with expired tags. When she checked his driver record, she learned that his license had been revoked. She then asked him to step out of the car and began a search of his person with his consent. She found one blue Ecstasy pill in his pocket, which was subsequently field-tested with a methamphetamine test kit. Also in his pockets she found a total of $6, in currency. Officer Saxon called other officers to the scene because she did not have a methamphetamine test kit with her. 2. In the vehicle, which she also received consent to search, she detected an odor of marijuana. Under the driver s seat she found a glass mason jar that smelled of marijuana. In the floor of the back seat, she found a plastic bag with marijuana scent. From the floor of the car, she collected a total of not more than ½ gram of marijuana seeds, stems and shavings. 3. After the Claimant had been arrested and placed in a patrol car, officers searched, with his permission, the trunk of the vehicle, where they found a bag which normally contains charcoal briquettes. In place of the briquettes,

4 officers found thirty to forty rolls of currency, each one bound tightly with rubber bands and some marked by a slip of white paper with letters, like codes or nicknames, and numbers on it. In Officer Saxon s knowledge and experience, this method of packaging currency is typical of how money received for drugs is bundled and accounted for. The currency, when unbound and counted, amounted to $42, Officer Deslauriers, one of the officers who responded to the request for a methamphetamine test kit, testified that the charcoal bag and the plastic bag inside it containing the bundles of currency also had an odor of marijuana. When questioned about the manner of bundling the money, Officer Deslauriers testified that not only was the currency packaged in a form he associated with drug sales, but that his drug suppression unit also packaged money they intended for use with a drug buy in a similar fashion. 5. When asked at the stop about the money found on his person, Mr. Stephens claimed the money as his own. Regarding the currency found in the trunk of the car, he denied knowledge or ownership of it to the officers. When the currency was found in the trunk, Officer Jane McCormick mirandized the Claimant with regard to that currency. She recalls that he disclaimed knowledge or ownership of the money found in the trunk. He also denied knowledge of the sum of the currency the bag contained. 6. Mr. Stephens informed the officers that he was unemployed. He said he had come from Chicago, and would not give a residence address in

5 Nashville. Officer McCormick described him as uncooperative in interviews. At the hearing, when asked if he knew the bag of currency was in the vehicle, Mr. Stephens said he just drove the car. I knew some was but not the amount. He said that the money on his person was his own money. He denied that the money in the trunk was drug money but also denied knowing anything about where it came from or where it was to go. At the hearing, he said that the money (from the trunk) was in his possession. He had it at the time (of the stop and seizure). But he also agreed that he had told officers he knew nothing about the money. He denied that he made more than one statement claiming that the money did not belong to him, but he offered no testimony that anything he said was inconsistent with the conclusion to be drawn from the officers testimony that he disclaimed knowledge or possession of the currency found in the trunk. 7. The officers contacted the titled owner of the vehicle, who came to the station to talk to them. She acknowledged lending the vehicle to her friend, Mr. Stephens, but denied any knowledge of the charcoal bag or its contents. Only Mr. Stephens filed a claim for the currency from the trunk. 8. The currency that was found on Mr. Stephens person was not confiscated, because he was found with only a misdemeanor amount of drugs. Therefore, the officers concluded, a seizure of the vehicle or the currency found on him would not likely be upheld without some other evidence of drug activity.

6 CONCLUSIONS OF LAW 1. The State has the burden of proving by a preponderance of the evidence that the seized property is of a nature making its possession illegal, or that it was used in a manner making it subject to forfeiture, and failure to carry the burden of proof is a bar to any forfeiture. T.C.A (d). 2. Tennessee Code Annotated, Section (a)(6)(A), authorizes the forfeiture of [e]verything of value furnished, or intended to be furnished in exchange for controlled substance[,].... all 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. 3. The State is not required to trace money or proceeds to specific drug sales, so long as there is some proven nexus to connect the seized property with 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. App. 1981). 4. It is well settled that the presence of cash associated with an individual, without further explanation, is not sufficient to prove that the currency was received in consideration for a controlled substance. See Goldsmith v. Roberts, 622 S.W. 2d 438, 440 (Tenn. App. 1981), or more recently, Fullenwider v. Lawson, 1992 WL (Tenn.Ct. App.) 5. Only the illicit drugs and the currency found in the trunk were seized in this case. Only the Claimant filed to obtain the currency from the trunk. The

7 Claimant was in possession of the vehicle from which the currency was seized. Although he denied knowledge or ownership of the currency at the scene of the stop, Claimant contends the fact that he was in possession of the vehicle in which the currency was found does give him an ownership interest in the currency such that it should be returned to his possession. The State did not file a motion prior to the hearing to contest Claimant s standing to claim the currency. Therefore the hearing on Claimant s claim was a hearing on the merits. 6. The State succeeded in meeting its burden to show by a preponderance of the evidence that the currency at issue is, more probably than not, associated with illegal drug transactions. There is evidence, in the smell of marijuana associated with the currency, and in the amount, packaging and labeling of the currency, that the currency is associated with the sale of marijuana. Although not dispositive, there was trace evidence of marijuana in the vehicle. And there is the odd circumstance that neither the driver nor the owner of the vehicle claimed ownership of the currency or any knowledge of the source of the currency or why it was in the vehicle. There is no evidence supporting a conclusion that the currency is not drug-related. Claimant s testimony does not detract from the conclusion that the preponderance of evidence is that the currency at issue is money associated with a violation of the Tennessee Drug Control Act. The State has met its burden through circumstantial evidence to show that the currency is subject to forfeiture.

8 7. When property is seized, the person in possession may receive it back if the State is unable to show that it is subject to forfeiture. Even if it is subject to forfeiture, an innocent owner may receive it back if it is established that he has an ownership interest in the property, and that it could not be shown that he knew that the property was used or intended to be used for an illegal purpose. The State made appropriate efforts to identify and contact the owner of the currency. No owner was located. Only the Claimant filed a claim. The Claimant must qualify as an innocent owner to be awarded the currency. The preponderance of the evidence is that his strongest connection to the money is that it happened to be in the vehicle he was driving when it was found. Claimant gave conflicting testimony regarding whether he knew of the currency s existence in the car, denying any knowledge of it at the scene of the stop, and only later, when choosing to claim it, did he testify that he had known a bag of an indeterminate amount of currency was in the trunk. He consistently denied any knowledge of the rightful owner of the currency, the source of the currency, why it was in the vehicle or what it was intended to be used for. He admitted to being unemployed, and made no claims to have obtained the currency from any other source. He is not a bailee of the currency because he could not identify who put the currency in his safekeeping. He has absolutely no connection in the record to the currency except that it was found in a vehicle he had borrowed and was driving, and he subsequently contradicted his earlier testimony when he said that he was aware

9 there was some money in the car. Claimant s belated interest in the currency does not give him a legal interest in it under the circumstances of this case. 8. Therefore, it is determined that Claimant has no legally recognizable claim to the currency. There is no competent evidence supporting his claim. His claim must therefore be Denied. 9. His claim being stricken and there being no other claimants, it is as if no claim had ever been filed, which constructively evokes T.C.A (c). That section states: If a claim... is not filed with the applicable agency within the time specified... [this claimant s interest in] the seized property shall be forfeited and disposed of as provided by law. Therefore, it is ORDERED that the claim of Eddie Stephens is stricken, the matter DISMISSED and the Forty-Two Thousand Two Hundred and No/100 Dollars in U.S. Currency ($42,200.00) in US currency hereby FORFEITED to the seizing agency as provided for by law. This Initial Order entered and effective this 9th day of February, Margaret R. Robertson Administrative Judge Filed in the Administrative Procedures Division, Office of the Secretary of State, this 9th day of February, Thomas G. Stovall, Director Administrative Procedures Division