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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. Eight Thousand, Seven Hundred Dollars, $8, in U.S. Currency, Seized from: Jerry L. Sexton, Date of Seizure: December 21, 2007, Claimant: Jerry L. Sexton 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 ) ) v. ) DOCKET NO J ) [D.O.S. Case No. G 9780N] Eight Thousand, Seven Hundred Dollars ) ($8,700.00) in U.S. Currency ) Seized from: Jerry L. Sexton ) Date of Seizure: December 21, 2007 ) Claimant: Jerry L. Sexton ) INITIAL ORDER This matter was heard on June 5, 2008, in Knoxville, Tennessee, before Mattielyn B. Williams, Administrative Judge, assigned by the Secretary of State, Administrative Procedures Division, and sitting for the Commissioner of the Tennessee Department of Safety. Ms. Nina Harris, Staff Attorney, Tennessee Department of Safety, represented the State. Claimant Jerry L. Sexton was present and represented by Attorney P. Richard Talley, of the Dandridge bar. The State filed information on Canine Officer J.J. s Hit Rate, etc., on July 8, Claimant filed his Response on July 22, The State had the opportunity to file a Reply, within three (3) weeks of July 22, As of September 11, 2008, no further pleadings have been filed. This matter is considered ready for consideration. The subject of the hearing was the proposed forfeiture of the subject Eight Thousand Seven Hundred Dollars ($8,700.00) in U.S. Currency, seized for its alleged 1

3 use in facilitating or as involved in an exchange, in violation of the Tennessee Drug Control Act, thus making the property subject to seizure, pursuant to T.C.A After consideration of the record, it is DETERMINED that the subject U.S. Currency should be RETURNED to the Claimant. This decision is based upon the following Findings of Fact and Conclusions of Law: FINDINGS OF FACT 1. Officer Kris Lewallen, of the Scott County Sheriff s Department, responded to a motor vehicle accident on December 21, Claimant Jerry Sexton, the driver, was not steady on his feet and seemed to be attempting to gather U.S. Currency and medications, when Officer Lewallen arrived. Claimant had flipped the vehicle that he was driving. Claimant s speech was slurred. Claimant was bleeding from the nose. An ambulance was called to the scene. 2. Officer Lewallen s certified Canine Officer, J.J., alerted to the vehicle that Claimant had been driving. Officer Lewallen testified that J.J. has been his partner for three (3) years and that J.J. alerts to marijuana, mushrooms, and cocaine. Two Hundred Twenty-Five (225) Methadone, Alprazelam, Oxycontin, and Oxycodone pills were found. Claimant had valid prescriptions for all of the pills. Eight Thousand Seven Hundred Dollars ($8,700.00) in U.S. Currency was seized one hundred thirty (130) $20s and sixty-one (61) $100s. 2

4 3. Claimant was charged with 1 st offense, Driving Under the Influence. Claimant did not dispute Officer Lewallen s assertion that his (Claimant s) blood contained more than a therapeutic dose of his (Claimant s) prescribed pills. 4. Officer Lewallen noted that, at the scene, Claimant stated that a dog ran in front of his vehicle, causing the accident, whereas, at the Sheriff s Department, after release from the hospital, Claimant stated that a deer ran in front of his vehicle. Officer Lewallen continued that at the scene, Claimant said his hip had been replaced, whereas at the hearing, he claims he has a plate in his hip. 5. Claimant Jerry Sexton testified that he has a plate in his hip, as a result of a head-on accident in 1999; hence the need for the pills found in his possession, on the scene. Bearden Pain Clinic prescribed the pills. 6. Claimant continued that he does not trust banks, works for cash from time to time, and does not want to place his money in a bank since he owes the hospital from his earlier care. Claimant testified that the funds seized include his savings. 7. Claimant completed the 8 th grade. 8. No direct evidence of an illegal drug transaction, involving the Claimant, was presented at the hearing. CONCLUSIONS OF LAW 1. The State must carry its burden of proof, by a preponderance of the evidence, that the subject U.S. Currency was used or exchanged in a manner that violated 3

5 the Tennessee Drug Control Act. Such violation subjects property to forfeiture pursuant to the provisions of T.C.A The State contended that Claimant s testimony is not credible, based on hip replacement v. hip plate, dog v. deer, and 4 v. 10 years of savings. Given Claimant s level of education, it seems reasonable that Claimant may not be entirely clear as to whether or not the hip surgery he received constitutes a full or partial hip replacement v. insertion of a metal plate, with no hip replacement. Given the flipping of his car and need for an emergency room trip, whether it was a dog or a deer, Claimant is clear that an animal crossed the road and caused him to flip his car. 3. It is true that the subject U.S. Currency was in small bills, which is sometimes indicative of involvement in illegal drug transactions. On the other hand, many persons do not deposit cash into bank accounts, particularly when there are unsatisfied financial judgments against them. 4. It is true that J.J. did alert on the Claimant s vehicle, yet, not proof of even one ounce of illegal, non-prescribed drugs was found. 5. One wonders whether or not J.J. can distinguish prescribed Oxycontin from illegally-obtained Oxycontin and to what extent prescription-strength Oxycontin contains cocaine and/or other Scheduled Drugs, if any. 6. The statute requires proof of involvement in one or more drug transactions; however, the State did not present proof (marked money; tape from wire; CI information, etc.) of even a single drug transaction, involving Claimant and/or the subject U.S. Currency. 4

6 7. Therefore, based on the proof presented, it is CONCLUDED that the State FAILED to carry its burden of proof, by a preponderance of the evidence, that the seized U.S. Currency was obtained through, in exchange for, or used to facilitate an illegal drug transaction, in violation of the Tennessee Drug Control Act. 8. Therefore, it is hereby ORDERED that the seized Eight Thousand Seven Hundred Dollars ($8,700.00) in U.S. Currency be RETURNED to Claimant Jerry L. Sexton. This Initial Order entered and effective this 12th day of September, Mattielyn B. Williams Administrative Judge Filed in the Administrative Procedures Division, Office of the Secretary of State this 12th day of September, Thomas G. Stovall, Director Administrative Procedures Division 5