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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. One 2001 Plymouth Neon, VIN # 1P3ES46C , $ U.S. Currency, SEIZED FROM: MARVIN VALENTINE, SEIZURE DATE: MAY 1, 2012, REGISTERED OWNER VEHICLE: FELICIA IVY, CLAIMANT: MARVIN VALENTINE, LIENHOLDER: TITLEMAX 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. ) ) One 2001 Plymouth Neon ) VIN #1P3ES46C ) $ U.S. CURRENCY ) SEIZED FROM: MARVIN VALENTINE ) SEIZURE DATE: MAY 1, 2012 ) REGISTERED OWNER VEHICLE: ) FELICIA IVY ) CLAIMANT: MARVIN VALENTINE ) LIENHOLDER: TITLEMAX ) ) Docket No J ) ) Department of Safety ) Case No. M6793 ) INITIAL ORDER This matter came on to be heard on October 24, 2012 in Memphis, 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. Joe Bartlett, attorney for the Department of Safety, represented the State. Claimant Valentine was present at the hearing and elected to represent himself pro se, after waiving his right to counsel. The subject of this hearing was the proposed forfeiture of the above styled 2001 Plymouth Neon, VIN # 1P3ES46C , and $ in U.S. Currency for the seized property s alleged use in violation of the Tennessee Drug Control Act, T.C.A , et seq., and T.C.A (a)(4).

3 After consideration of the evidence offered, the arguments of counsel, and the entire record in this matter, it is ORDERED that the seized property be immediately FORFEITED to the seizing agency. This decision is based upon the following Findings of Fact and Conclusions of Law. FINDINGS OF FACT 1. On May 1, 2012, Officer Jamie Lambert, Memphis Police Department, was operating LIDAR (Light Detection and Ranging) at South Parkway and Driver St. in Memphis, Tennessee, for the purpose of detecting drivers of vehicles who were driving in excess of the posted speed limit. 2. Officer Lambert clocked Claimant Valentine driving his vehicle 48 mph in a 35 mph zone. 3. Based upon the speeding violation, Officer Lambert made a traffic stop on Claimant. 4. When Officer Lambert asked for Claimant s driver s license, Officer Lambert learned that it was suspended. The vehicle was registered to Felicia Ivy. Claimant did not have a proof of insurance in the vehicle. 5. Officer Lambert did a pat down of Claimant, and prepared to detain him. At that time, Claimant resisted arrest, and Officer Lambert sprayed Claimant with a chemical agent and called for back-up from other officers. 6. Claimant was arrested. 2

4 7. While doing an inventory of Claimant s vehicle after the arrest, the officers discovered a clear sandwich bag containing a green leafy substance which they believed to be marijuana. 8. The substance tested positive for marijuana, in the amount of grams. 9. The officers also found $ in currency on Claimant s person. 10. Claimant asserted that the currency found on his person was money from an income tax refund which he had recently received. He also asserted that the marijuana found in the vehicle was for personal use only. CONCLUSIONS OF LAW 1. The State has the burden of proving, by a preponderance of the evidence, that the seized vehicle and property 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

5 3. T.C.A (a)(2) provides that all raw materials, products, and equipment of any kind which are used, or intended for use, in manufacturing, compounding, processing, delivering, importing or exporting any controlled substance in violation of the Tennessee Drug Control Act are subject to forfeiture. 4. 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. 5. In Claimant s case, he possessed and had transported grams of marijuana. He had a large amount of cash on his person. 6. 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. 7. 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. 4

6 8. Because Claimant possessed and/or transported greater than onehalf ounce of marijuana, the inference is made that Claimant intended to transport and deliver or sell the marijuana recovered from the vehicle. 9. It is noted that no conveyance is subject to forfeiture under T.C.A for simple possession of a controlled substance as set forth in T.C.A See T.C.A (4)(C) and T.C.A If the State presents a prima facie case for forfeiture, i.e., that the vehicle was used or intended to be used to facilitate a violation of the Tennessee Drug Control Act or drug laws, the burden of going forward with the evidence shifts to the claimant to prove either that the vehicle is not subject to forfeiture. T.C.A (f)(1). See also, Urquhart v. Department of Safety, 2008 WL (Tenn. Ct. App. 2008). 12. Rule (4), The Rules of Procedure for Asset Forfeiture Hearings, Department of Safety (Revised) sets forth the criteria for determining ownership of a vehicle: If the person in possession of the property is not the registered owner as determined from public records of titles, registrations, or other recorded documents, the officer may submit certain indicia of ownership to the judge which proves that the possessor is nonetheless the owner of the property. Such indicia of ownership shall include, but is not limited to the following: (a) (b) (c) (d) (e) (f) How the parties involved regarded ownership of the vehicle in question; The intentions of the parties relative to ownership of the property; Who was responsible for originally purchasing the property; Who pays any insurance, license or fees required to possess or operate the property; Who maintains and repairs the property; Who uses or operates the property; 5

7 (g) (h) Who has access to the property; Who acts as if they have a proprietary interest in the property? 12. The vehicle was registered to Felicia Ivy. Claimant testified that he had purchased the vehicle from Ms. Ivy, and was making payments on it. Claimant admitted that he had never received a title for the vehicle, nor did he have any paperwork to evidence a purchase agreement from Ms. Ivy. 13. Ms. Ivy did not file a claim for the vehicle. Claimant asserted that the vehicle was his vehicle. 14. Claimant presented his A individual tax return which showed that Claimant was entitled to a tax refund in the amount of $1965. However, Claimant did not possess any evidence of the refund check or banking records which would reflect receipt of a tax refund in that amount. 15. At the hearing, Claimant presented as a nice, young man who has been employed, and has worked as a forklift operator in order to attend college at UT Chattanooga. The undersigned sincerely wishes that Claimant was not in the present forfeiture situation. 16. However, this Judge is charged with fairly and equally applying the law in Drug Forfeiture cases. Regrettably, Claimant is the person who has placed himself in this unfortunate position. 17. The evidence preponderates in favor of forfeiture. Claimant possessed a felony amount of marijuana in close proximity to a large sum of cash. 6

8 18. The State has met its burden of proof in this case with regard to the vehicle and the currency. The seized vehicle and the seized currency are subject to forfeiture pursuant to the Tennessee Drug Control Act. Accordingly, it is ORDERED that the above captioned vehicle and currency be immediately FORFEITED to the seizing agency (the Memphis Police Department). It is so ordered. This Order entered and effective this 15 day of January, 2013 Thomas G. Stovall, Director Administrative Procedures Division 7