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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., $ in U.S. Currency, and, One Motorola Razor Cell Phone, and, One 2002 Infiniti I35, VIN: JNKDA31A52T027198, SEIZED FROM: Scott S. Tate, SEIZURE DATE: June 24,1999, CLAIMANT: Scott S. Tate, SEIZING AGENCY: M.N.P.D., LIENHOLDER: Tenn. C.U. 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 ] ] VS. ] DOCKET # J ] D.O.S. # H9302 $ in U.S. Currency, and ] One Motorola Razor Cell Phone, and ] One 2002 Infiniti I35 ] VIN: JNKDA31A52T ] SEIZED FROM: Scott S. Tate ] SEIZURE DATE: June 24, 1999 ] CLAIMANT: Scott S. Tate ] SEIZING AGENCY: M.N.P.D. ] LIENHOLDER: Tenn. C.U. ] INITIAL ORDER This contested administrative case was heard in Nashville, Tennessee on April 21, 2009, before J. Randall LaFevor, Administrative Judge, assigned by the Secretary of State, and sitting for the Commissioner of the Tennessee Department of Safety. Ms. Cynthia Gross, Metropolitan Attorney, represented the State. The Claimant was present and was represented by his attorney, Mr. Robert Vaughn. The subject of this hearing was the proposed forfeiture of the Claimant s vehicle, currency and cell phone, based on allegations that they were used or possessed by the Claimant in violation of the Tennessee Drug Control Act. Upon full consideration of the record in this case, it is determined that the subject vehicle should be forfeited to the Seizing Agency, but that the other property should be returned to the Claimant. This decision is based on the following Findings of Fact and Conclusions of Law: FINDINGS OF FACT 1. At approximately 1:00 a.m., on December 7, 2008, an officer with the Metropolitan Nashville Police Department ( MNPD ) observed a vehicle drive through the intersection of Una-Antioch Pike and Blue Hole Road without stopping as directed by 1

3 the traffic control sign. He stopped the car and issued a citation to the driver, Scott Tate ( Claimant ) for the traffic violation. 2. While talking to the Claimant, the officer noted the smell of unburned marijuana coming from the passenger compartment of the vehicle. He investigated further, and located a baggie of marijuana (15.8 grams) and a separate jar containing a small amount of marijuana (3.4 grams). The total weight of both quantities of marijuana was approximately 19.2 grams. A subsequent search of the driver produced $ in currency and a Motorola Cell Phone. 3. The Claimant admitted to the officer that the plant material in his car was two different varieties of marijuana. The Claimant made no further admissions. Based on his discovery of the marijuana, and although the officer had observed no illegal activity except the Claimant s failure to stop at the intersection, the officer surmised that the Claimant had just sold a large quantity of marijuana, and had received the $ in cash as proceeds from that sale. He further inferred that the Claimant s cell phone had been used to arrange the sale that he believed had just occurred. Based on his inference and conjecture, he seized the Claimant s car, money and phone, and later obtained a Forfeiture Warrant for those items. 4. During the hearing, the State introduced certified copies of the Claimant s prior convictions for various drug and weapons offenses, including Possession of Marijuana with Intent to Sell in 1998, 1999 and CONCLUSIONS OF LAW and ANALYSIS 1. The State bears the burden of proof in this case, and must therefore prove, by a preponderance of the evidence, that the seized property is subject to forfeiture, pursuant to the laws of this state. Failure to carry the burden of proof operates as a bar to the proposed forfeiture. TENN. CODE ANN (d)(2); Rule , TENN. COMP. R. & REGS., Rules of the Tennessee Department of Safety. 1 See Hearing Exhibits # 1, 2 & 3. 2

4 2. 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 controlled substances in violation of the Tennessee Drug Control Act, are subject to forfeiture under the law. TENN. CODE ANN (a)(4). The State cites this statute in support of its proposed forfeiture of the Claimant s vehicle 3. When the Claimant s vehicle was stopped, it was found to contain two different types of marijuana packaged in separate containers. Although the State was unable to produce a lab report identifying the substance, the Claimant admitted to the officer that it was in fact marijuana. The seizing officer testified that he had determined it to be marijuana, based on his training and experience. Under the Department s Rules, that is sufficient proof to establish the identity of the substance as marijuana. See Rule (4), TENN. COMP. R. & REGS., Rules of the Tennessee Department of Safety. 2 Applying the Department s Rule to this case, it is concluded that the Claimant was in possession of 19.2 grams of marijuana. 4. Possession of more than one-half (½) ounce ( grams) of marijuana is classified as felony possession of a controlled substance. See, TENN. CODE ANN (g). It may be inferred from the amount of a controlled substance or substances possessed by an offender, along with other relevant facts surrounding an arrest, that the controlled substance or substances were possessed with the purpose of selling or otherwise dispensing. TENN. CODE ANN In this case, the State proved that the Claimant was transporting more than onehalf ounce of marijuana in his car. Based on the felony-level amount possessed, the fact that it was of two different varieties and was packaged in two separate containers, and the fact that the Claimant has a prior criminal record that includes three felony convictions for Possession of Marijuana for Resale, it is inferred that he was transporting the drug on December 7, 2008 for the purpose of selling or otherwise dispensing it. It is concluded, therefore, that the seized vehicle was used to transport, or in any manner to facilitate the 2 That rule provides, in relevant part, that marijuana may be identified, for the purpose of a contested case hearing, by a qualified representative of the seizing agency, or by statements of the claimant. 3

5 transportation, sale or receipt of controlled substances in violation of the Tennessee Drug Control Act, and is therefore subject to forfeiture under the law. TENN. CODE ANN (a)(4). 6. The State next asserts that the money and cell phone found in the Claimant s possession are subject to forfeiture, citing TENN. CODE ANN (a)(2). [See December 8, 2009 Forfeiture Warrant.] That Code section provides that All raw materials, products and equipment of any kind that are used, or intended for use, in compounding, processing, delivering, importing or exporting any controlled substance in violation of the Tennessee Drug Control Act, are subject to forfeiture under the law. As best can be determined from its proof and argument, it appears that the State claims the money and cell phone are products and equipment that were used in delivering the marijuana. 7. Although the seizing officer testified that he believed the Claimant had received the $ in his possession from the sale of a large quantity of marijuana before he was stopped for the traffic violation, and that the Claimant had used his cell phone to arrange that sale, he was unable to produce any evidence supporting the existence of such a transaction. Without some proof that a drug transaction took place, it is not possible to conclude that the seized money came from such a transaction, or that the cell phone was used to arrange it. There is no such proof in the record. While a police officer s experience, and his inferences based on that experience, may form a basis for further investigation, his conjecture and belief alone will not sustain a property forfeiture. Because the proposed forfeiture is not supported by the evidence, it must be denied. Accordingly, IT IS HEREBY ORDERED that the subject vehicle, the 2002 Infiniti I35, is hereby forfeited to the Seizing Agency, the Metropolitan Nashville Police Department, for disposition according to law, subject to the legal interest of the lien holder, the Tennessee Credit Union. 4

6 IT IS FURTHER ORDERED that the $ in U.S. currency, and Motorola cell phone, shall be RETURNED to the Claimant, Scott S. Tate. Entered and effective this 28th day of April, Randall LaFevor, Administrative Judge Filed in the Administrative Procedures Division, Office of the Secretary of State, this 28th day of April, Thomas G. Stovall, Director Administrative Procedures Division 5