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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, EASTERN DIVISION, vs. SUBJECT: 2001 Ford Expedition., VIN No.: 1FMRU15WX1LA24235., Seized from: Ernest M. Hartsell, Date of Seizure: July 17, 2008., Claimant: Vivian Hartsell., Surety: Ursula Bailey, Lienholder: None., Seizing Agency: Knox Co SD. 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 IN THE MATTER OF: BEFORE THE COMMISSIONER FOR THE TENNESSEE DEPARTMENT OF SAFETY DEPARTMENT OF SAFETY, EASTERN DIVISION, v. DOCKET NO: J DOS CASE: H5568 SUBJECT: 2001 Ford Expedition. VIN No.:1FMRU15WX1LA Seized from: Ernest M. Hartsell Date of Seizure: July 17, Claimant: Vivian Hartsell. Surety: Ursula Bailey Lienholder: None. Seizing Agency: Knox Co SD. INITIAL ORDER PROCEDURAL THIS CONTESTED administrative proceeding was heard on 02 December 2008, at the State of Tennessee Department of Safety Office, Knoxville, Tennessee, before William Jay Reynolds, Administrative Judge, assigned by the Secretary of State, Administrative Procedures Division, and sitting for the Commissioner of the Tennessee Department of Safety. Lori Long represented the Department. Claimant, Vivian Hartsell, appeared with her attorney, Ursula Bailey. Any representative from the Knox County Sheriff s Office Failed To Appear. The Department of Safety did not present any witness. THE SUBJECT of this hearing was whether, Vivian Hartsell, was a proper party, or had standing, to make claim for the seized property.

3 FINDINGS OF FACT 1. ON 17 JULY 2008, Ernest Martwain Hartsell was driving the subject 2001 Ford Expedition. The vehicle was seized for alleged violations of Tennessee Code Annotated, et seq and The State of Tennessee Drug Asset Forfeiture Warrant has an interrogation block for the officer to complete, indicating the knowledge of any owner, co-owner or secured party s interest, was left not checked or completed. The block has a notation of N/A with the legal conclusion only defendant has any interest hand written on the left margin of the document. 3. Apparently, the vehicle was seized because of a narcotics offense committed by Ernest M. Hartsell. 4. Ernest M. Hartsell is the husband of Vivian Hartsell. 5. The title to the subject property was not produced at hearing. An officer from the Knoxville Sheriff s Department or Ernest M. Hartsell was not present for the hearing. 6. The Department sought to invoke the missing witness rule in regard to Ernest M. Hartsell, however, there was no indication the Department had attempted to secure his presence. The Department knew the Petitioner was making claim and it could have subpoenaed Ernest M. Hartsell. The Knox County Sheriff s Department signed for the Notice on 4 November 2008 and Failed To Appear. 7. Vivian Hartsell, produced evidence she had been making monthly payments for the subject property from funds she generated in her business; Shear Elegance Hair Salon. She insisted the vehicle was for her use and benefit and that she had directed its use since She produced a document from the ORNL Credit Union wherein 2

4 she testified it was her who paid off the Ten Thousand, Six Hundred Thirty Four and 75/100 ($10,634.75) Dollars Note on the 2001 Ford Expedition. She denied any knowledge of the use of the vehicle that would make it subject to seizure and forfeiture. CONCLUSIONS OF LAW The following legal authorities and precedents were considered in making a determination in this cause: 1. Tennessee Code Annotated, et seq provides for the procedure in confiscation cases. As to the issue of standing, the statute (f) (1) provides that a claim for seized property shall be allowed if asserted by an owner or other person asserting the interest of the owner. The title was not produced to determine the legally registered owner. From the documents produced at hearing, the equitable ownership belongs to the Claimant. Possession of the property at the time of seizure is sufficient to confer standing to challenge forfeiture. State v. LeMay, (Tenn. March 28, 1977), 15 APR 325. Clearly, the Claimant had a pecuniary interest and presumptive possession at the time of the seizure. Accordingly, it is concluded the Claimant was a proper party in interest and had standing to make claim. 2. The Burden of Proof was upon the Department to prove, by a preponderance of the evidence, the seized property was of a nature making its possession illegal or was used in a manner making it subject to forfeiture and the owner or co-owner knew the property was being used in a manner making it subject to forfeiture. The Rules of Tennessee Department of Safety, Rule , Tennessee Code Annotated,

5 3. Tennessee Code Annotated, , et seq provides in part that on the second or subsequent commission of a violation of Tennessee Code Annotated, the vehicle may be forfeited. The burden of proof was on the Department to show the seized property was used in a manner making it subject to forfeiture. Without any proof, the Department failed to meet this standard. 4. The intention of the parties determines the ownership of an automobile. Smith v. Smith, 650 S.W.2d 54 (Tenn.App.1983); Couch v Cockroft, 490 S.W.2d 713 (Tenn.App.1972). Vivian Hartsell made the decisions and exercised the ultimate control over the vehicle. She paid for the 2001 Ford Expedition and directed the use of the vehicle. There was no proof to the contrary. 5. Tennessee Code Annotated, (d) No person shall authorize or knowingly permit a motor vehicle owned by such person or under such person s control to be driven upon any highway by any person who is not authorized hereunder or in violation of any of the provisions of this chapter. The Department offered no proof the Claimant had any knowledge, constructive or actual, that Ernest Hartsell was operating the subject vehicle in a manner making it subject to forfeiture. On July 17, 2008 there is nothing in the proof showing permission was given to Ernest Hartsell to drive the subject property. The Claimant testified However, should this question arise in the future this case should serve as a strong factor indicating the Claimant s knowledge of the propensity of Ernest Hartsell to flagrantly disregard the law. 6. Tennessee Code Annotated, (h) (1) The vehicle used in the commission of a person s violation of , when the original suspension 4

6 or revocation was made for a violation of , or a statute in another state prohibiting driving under the influence of an intoxicant, is subject to seizure and forfeiture in accordance with the procedure established Tennessee Code Annotated, (a) In order to forfeit any property or any person s interest in such property *** the state shall have the burden to prove by a preponderance of the evidence that: (1) The seized property was of a nature making its possession illegal or was used in a manner making it subject to forfeiture under the sections set out in this subsection (a); and (2) The owner or co-owner of the property knew that such property was of a nature making its possession illegal or was being used in a manner making it subject to forfeiture, or, in the case of a secured party, that the standards set out in subsection (f) are met. (b) (1) Failure to carry the burden of proof shall operate as a bar to any forfeiture and the property shall be immediately returned to the claimant. (2) Notwithstanding that the hearing officer found that the State carried the burden of proof and recommended forfeiture of the property, the administrative head of the applicable agency may, in the interest of justice, order that the seized property be returned to the claimant. (c) (1) The interest of a co-owner or co-owners who were not in possession of the property at the time it was seized may be forfeited if the co-owners: (A) Were co-conspirators to the activity making the property subject to forfeiture; (B) Knew that the property was of a nature making its possession illegal; or (C) Knew that it was being used in a manner making it subject to forfeiture and consented to such use. 5

7 8. The Rules of Tennessee Department of Safety, Rule , (5) Statements against interest of the claimant by persons in possession of seized property are relevant and may be admitted into evidence pursuant to T.C.A Forfeitures are not favored in the law, and statutes that impose forfeitures must be strictly construed. Goldsmith v Roberts, 622 S.W.2d 438, 440 (Tenn. Ct. App. 1981). Turner v State,No I, 01-A CH00303, 1992 WL (Tenn.Ct.App. January 29, 1992). 16 APR Tennessee Code Annotated, (a) (1) (2) (b) (1) (A) (B) wherein the courts are instructed by statute to equitably divide, distribute or assign the marital property between the parties without regard to marital fault in proportions as the court deems just... (2)... the court, in its discretion, may equitably divide, distribute, or assign the marital property in whole or in part... (b) For purposes of this chapter: (1) (A) Marital property means all real and personal property, both tangible and intangible, acquired by either or both spouses during the course of the marriage... (B) Marital Property includes income from, and any increase in value during the marriage In Tennessee, the missing witness rule is applied with restraint, and when applied, it permits an inference by the finder of fact that the testimony of the absent witness would have been unfavorable to the party having special access to the testimony of the witness, McReynolds v. Cherokee Ins, Co, 815 S.W.2d 208, 209 (Tenn.App.1991). The missing witness rule may be applied when the evidence shows: 1) that the witness had knowledge of material facts, 2) that a relationship exists between the witness and the party that would naturally incline 6

8 the witness to favor the party; and 3) that the missing witness was available to the process of the Court for trial. State v Francis, 669 S.W.2d 85, 88 (Tenn.1984). Further, in Tennessee the missing witness rule authorizes a permissive inference rather than creating a presumption, State v Francis, 669 S.W.2d at 88 (Tenn.1984); Roberts v Traughber, 884 S.W. 2d 192, 196 (Tenn.App.1991). These requirements are to be strictly construed, particularly when the rights of a criminal defendant may be affected. State v Francis, 669 S.W.2d at 89 (Tenn.1984). The Department insists the missing person rule should apply. It insists Ernest Hartsell had peculiar knowledge of material facts, was kin to the Claimant, and someone in the Claimant s family, more likely than not, knew how to contact Ernest Hartsell. If applied, then the inference is the testimony of Ernest Hartsell would be unfavorable to the Claimant. In this case the Department was making the issue of standing and had equal opportunity to subpoena Ernest Hartsell and compel is attendance as the Petitioner. The Missing Witness Rule does not apply. The Department did not meet both prongs of the statutory burden of proof, by a preponderance of the evidence; that the vehicle was being used in a manner making it subject to forfeiture AND the owner knew and consented to the illegal use of the vehicle. Failure to carry the burden of proof operates as a bar to any forfeiture and the property shall immediately be returned to the claimant; accordingly, IT IS ORDERED that the seized property immediately be returned to the Petitioiner, Vivian Hartsell. 7

9 ORDERED AND ENTERED this 14th day of April, WILLIAM JAY REYNOLDS ADMINISTRATIVE JUDGE FILED in the Administrative Procedures Division, Office of the Secretary of State, this 14th day of April, THOMAS G. STOVALL, DIRECTOR ADMINISTRATIVE PROCEDURES DIVISION 8