TENNESSEE DEPARTMENT vs. $ in U.S. CURRENCY, SEIZED FROM: MOISES SILVA, SEIZURE DATE: DECEMBER 9, 2009 CLAIMANT: MOISES SILVA

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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 vs. $ in U.S. CURRENCY, SEIZED FROM: MOISES SILVA, SEIZURE DATE: DECEMBER 9, 2009 CLAIMANT: MOISES SILVA 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 v. ) ) $ in U.S. CURRENCY ) SEIZED FROM: MOISES SILVA ) SEIZURE DATE: DECEMBER 9, 2009 ) CLAIMANT: MOISES SILVA ) ) Docket No J ) ) Department of Safety ) Case No. K0626 ) INITIAL ORDER This matter came on to be heard on December 9, 2010 in Lawrenceburg, Tennessee before Joyce Grimes Safley, Administrative Judge, assigned by the Secretary of State, and sitting for the Commissioner of the Tennessee Department of Safety. Mr. Orvil Orr, attorney for the Department of Safety, represented the State. Claimant was represented by Ms. Rhonda Hooks, Attorney at Law, of the Maury County Bar. The subject of this hearing was the proposed forfeiture of $ in United States currency, for the seized currency s alleged use in violation of the Tennessee Drug Control Act, T.C.A , et seq., and T.C.A (a)(6)(A). After consideration of the evidence offered, the arguments of counsel, and the entire record in this matter, it is ORDERED that the seized currency be immediately FORFEITED to the seizing agency.

3 This decision is based upon the following Findings of Fact and Conclusions of Law. FINDINGS OF FACT 1. On December 9, 2009 Officer Brad Ribley of the Columbia, Tennessee Police Department was on duty and was conducting a routine patrol in the city of Columbia, Tennessee. 2. Officer Jason Lovett, a canine officer, observed what he believed was Claimant Moises Silva conducting a drug deal. Officer Lovett called in the tag number and vehicle description of the vehicle Claimant was driving. 3. Officer Ribley responded to the call and initiated traffic stop on Claimant s vehicle due to the report of Claimant engaging in a drug sale, and also due to the fact that Officer Ribley noticed that Claimant s vehicle had windows which were in violation of the greater than 35% tint which is legal in Tennessee. 4. The traffic stop was within 1000 feet of Little Rascals Daycare Center. 5. Claimant Silva denied that he had any contraband or drugs in the vehicle he was driving. 6. The Police Department deployed a canine officer and drug dog to the scene. 7. When the drug dog arrived at the vehicle driven by Claimant, it alerted to the presence of illegal drugs. 8. With probable cause to search Claimant s vehicle, Officer Ribley conducted a search and discovered five (5) ounces, or grams, of marijuana in the glove box of Claimant s vehicle. 2

4 9. When Officer Ribley searched Claimant, he found $1364 in cash upon Claimant s person. 10. At the time of the traffic stop, and Claimant s arrest, Claimant was unemployed and had no legitimate source of income. 11. Claimant was arrested, the vehicle was seized, and the currency in Claimant s possession was seized Claimant was incarcerated and was not present at the hearing. Claimant s counsel announced that she wanted to continue the hearing because her client was incarcerated and she wished to subpoena Claimant to be present at the hearing. 13. It is noted that several continuances had already been granted in this case. It is further noted that there is no statute or rule that allows an individual who is incarcerated to attend a civil proceeding such as a forfeiture proceeding. Claimant could have participated in the hearing via deposition or via teleconference had his attorney elected to arrange for such participation. 2 1 The vehicle was seized, however, a claim for the vehicle was filed by Pascual Silva and was returned to Pascual Silva. Consequently, the vehicle was not at issue during this contested case hearing. 2 T.C.A addresses the Petitioner s request as follows: (a) In no civil case can an inmate be removed from the penitentiary to give personal attendance at court, but testimony may be taken by deposition, as in other cases, the party seeking the testimony being required to make affidavit that the inmate is a material witness in the case. (Emphasis added.) The Court in Carson v. Gilleland, 2003 WL *2 (Tenn. Ct. App. 2003) states: This Court is aware of no authority granting a prisoner defendant a right to be present in a civil matter. An inmate s constitutional right of access to the courts does not include the right of the inmate to appear personally in all instances and present his version of the facts. Id. at *2, citing, with approval, Stone v. Morris, 546 F.2d 730 (7 th Cir. 1976). Nor will prisoners who file civil actions unrelated to their conviction be afforded the opportunity to appear personally in Court to present their cases during their prison terms. Robins v. Robins, 1990 WL (Tenn. Ct. App. 1990). A prisoner s unavailability for hearings and trials is due to his conviction. [The court] is unaware of any authorities giving compelling reasons to remove prisoners from their self-caused 3

5 14. Claimant s motion for continuance based upon his inability to personally attend the hearing was not well taken, and was respectfully denied. CONCLUSIONS OF LAW 1. The State has the burden of proving, by a preponderance of the evidence, that the seized currency was subject to forfeiture because it was being used or was intended to be used to violate the Tennessee Drug Control Act, T.C.A See T.C.A and T.C.A (d)(2). Failure to carry the burden of proof operates as a bar to any forfeiture and the property shall be immediately returned to the Claimant. T.C.A (b)(1). 2. T.C.A (a)(6)(A) authorizes the forfeiture of everything 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. T.C.A (a)(6)(A) 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, as amended,[ ] all proceeds traceable to such an exchange, and all moneys, negotiable instruments, and securities used, or restrictions and proceed with [a] case as though they could proceed at will. Carson v. Gilleland, 2003 WL *2 (Tenn. Ct. App. 2003), citing Seybold v. Milwaukee County Sheriff, 276 F. Supp. 484 (E.D. Wis. 1967). Pursuant to T.C.A , Claimant could have participated in the forfeiture hearing either by deposition or by teleconference, yet elected to do neither. 4

6 intended to be used, to facilitate any violation of the Tennessee Drug Control Act are subject to forfeiture. 4. The State is not required to trace money or proceeds to specific drug sales; as long as there is some proven nexus to connect the seized property with illegal drug 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.Ct. App. 1981). 5. Among the factors which may be considered in determining whether the State has met its burden are whether the money/property was found in close proximity to the illegal controlled substance; whether marked money was found with other money; whether the Claimant was unemployed; whether there is evidence or records of a large-scale drug operation; whether the Claimant is associated with known traffickers or users; the quantity of the money involved; the quantity of the drugs involved; the packaging of the drugs; and the prior records of those involved. Lettner v. Plummer, 559 S.W.2d 785 (Tenn. 1977); Goldsmith v. Roberts, 622 S.W. 2d 438 (Tenn.Ct. App. 1981). (Emphasis added.) 6. T.C.A permits an inference from the amount of controlled substance or substances possessed by an offender, along with other relevant facts surrounding the arrest, that the controlled substance or substances were possessed with the purpose of selling or otherwise dispensing. 7. A large amount of marijuana, five (5) ounces, or grams, was found in the glove box of Claimant s vehicle. Claimant provided no other legitimate source for the large amount of currency found on his person. Claimant admitted to 5

7 Officer Ribley that he was unemployed. Additionally, Claimant had been observed conducting a drug sale prior to being stopped and searched T.C.A states as follows: T.C.A Criminal offenses and penalties. --- (a) It is an offense for a defendant to knowingly: *** (4) Possess a controlled substance [such as marijuana] with intent to manufacture, deliver or sell such controlled substance. 9. T.C.A (g)(1) provides that subsection (a)(4) is violated [intent to manufacture, deliver, or sell) with respect to a Schedule VI controlled substance classified as marijuana when the amount is not less than one-half ounce ( grams) up to ten pounds (4535 grams) of marijuana. Such a violation is a Class E felony. 10. Because Claimant possessed and/or transported greater than one-half ounce of marijuana, the inference is made that Claimant intended to transport, deliver, and sell the marijuana recovered from the vehicle. 11. No witness was called to rebut any of Officer Ribley s testimony. Consequently, the State s proof was uncontraverted. 12. The State met its burden of proof in this case. Given all the evidence and circumstances surrounding Claimant s arrest, it is more probable than not that the currency seized from Claimant was currency received in exchange for controlled substances (marijuana) or intended to purchase additional marijuana. 13. Because the State met its burden of proof in this matter, the seized currency shall be forfeited to the seizing agency forthwith. 6

8 Accordingly, it is ORDERED that the above captioned currency be immediately FORFEITED TO THE SEIZING AGENCY. It is so ordered. This Order entered and effective this 16th day of February, Thomas G. Stovall, Director Administrative Procedures Division 7