University of Tennessee, Knoxville Trace: Tennessee Research and Creative Exchange Tennessee Department of State, Opinions from the Administrative Procedures Division Law 7-12-2012 Tina (M1888) Bilbrey, One thousand five hundred twenty- five ($1,525.00) in U.S. Currency, Seized from: Jason E. Phillips, Seizure date: November 23, 2011, Claimant: Tina Bilbrey, Seizing Agency: TN Highway Patrol Follow this and additional works at: http://trace.tennessee.edu/utk_lawopinions 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
IN THE MATTER OF: BEFORE THE COMMISSIONER OF THE TENNESSEE DEPARTMENT OF SAFETY Tina (M1888) Bilbrey One thousand five hundred twentyfive ($1,525.00) in U.S. Currency Seized from: Jason E. Phillips Seizure date: November 23, 2011 Claimant: Tina Bilbrey Seizing Agency: TN Highway Patrol DOCKET NO: 19.01-117594J D.O.S. M1888 INITIAL ORDER This matter was heard on July 12, 2012, Cookeville, Tennessee before Joyce Carter-Ball, Administrative Law Judge, assigned by the Secretary of State, and sitting for the Commissioner of the Tennessee Department of Safety. Jacob Wilson, Staff Attorney for the Department, represented the Seizing Agency. Claimant, Tina Bilbrey, elected to proceed without counsel. The subject of this hearing was the proposed forfeiture of the seized property for its alleged use in violation of T.C.A. 53-11-201 et seq and 40-33-201 et seq. After review of the record and arguments of the parties, it is DETERMINED that $1,000.00 should be returned to the Claimant, and $525.00 should be forfeited to the Seizing Agency. This conclusion is based on the following findings of fact and conclusions of law: FINDINGS OF FACT 1. Trooper Michael Robertson testified on behalf of the Department that a CI revealed that marijuana was being sold at the address where Claimant and Jason Phillips reside. Upon arrival at Claimant s residence, Claimant came to the door and was advised by the Drug Task Force that they had a search warrant. Claimant and Mr. Phillips were read their Miranda Rights.
2. Trooper Robertson testified that there was a strong odor of marijuana coming from the residence, and that there was a dog kennel against the wall in the living room with a pill bottle containing approximately 38 Hydrocodone pills with no label, two Soma pills in another pill bottle, and a pipe. 3. Next to the door on the left side was a monitor for a surveillance camera to watch the front of the residence. To the right side of the room was a couch that had a loaded.25 Cal Raven semi-automatic handgun on the right arm rest. On the couch arms were two packs of rolling papers. To the right of that couch was a shelf stand that had a loaded.45 Cal Hi Point semiautomatic handgun on top of it. 4. On the same stand there were shelves that had a mason jar containing marijuana, three (3) plastic bags of marijuana, grinder, and a pack of rolling papers. Behind the couch was a vaporizer. 5. Mr. Phillips had $525.00 on his person when he was searched. There was a hallway to the far left corner of the living room. The last bedroom on the right had marijuana residue on the bed. In the floor next to the door there was a green ammunition container containing several plastic bags of marijuana. 6. In a cabinet to the left of the door entrance of the bedroom was a stack of U.S. Currency in the sum of $1,000.00. The money was in $20, $10, $5, and $1 increments. Two plastic bags of partial marijuana cigarettes were on the dresser against the right wall. The total weight of the marijuana located in the bedroom was approximately one pound. 7. Located in different places in the bedroom were five (5) pipes and one set of electronic scales. When entering the garage on the floor to the right of the door was a large white cooler containing grow lights and four (4) dirt filled containers. One container had a marijuana plant growing above the dirt. 8. Inside the stand up shower in plain view from the doorway was a large marijuana plant with roots and grow lights all around it. There were several marijuana leaves in the shower. 9. Trooper Robertson testified that Claimant admitted that Hydrocodone was being sold at their residence. 10. Claimant and Mr. Phillips admitted to growing marijuana. 11. The amount of marijuana found at Claimant s residence was 1.4 lbs. 2
12. The $500.00 found on Mr. Phillips and the $1,000.00 found in the cabinet located in the bedroom was seized. CONCLUSIONS OF LAW 1. The State of Tennessee, as the moving party in this case, has the burden to introduce evidence that would, by a preponderance of the evidence, prove the issues should be resolved in its favor. Rule 1360-4-1-.02. 2. T.C.A. 39-17-418: Simple possession; casual exchange (a) It is an offense for a person to knowingly possess or casually exchange a controlled substance, unless the substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of professional practice. (b) It is an offense for a person to distribute a small amount of marijuana not in excess of onehalf ( ½ ) ounce (14.175 grams). 3. T.C.A. 53-11-451 (a)(6)(a) authorizes the forfeiture of 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 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 of 1989. 4. The forfeiture statute does not require the State to trace the seized property to a specific transaction. Lettner vs. Plummer, 559 S.W.2d 785 (1977). But the Department must show some nexus between the seized money and the drug trade. Goldsmith v. Dept. of Safety, 622 S.W.2d 438 (1981). 3
5. Funds intended to be used to further illicit drug transactions are subject to forfeiture even if a substantial amount of drugs are not present. Louisiana vs. Douglas, 541 So.2d 285 (La. App. 1989). 6. Aggregation of facts, each one insufficient standing alone, may suffice to meet government s burden in forfeiture proceedings involving money allegedly involved in illegal drug transaction. U.S. v. $67,220.00 in United States Currency, 957 F.2d 280 (6 th Cir. 1992). ANALYSIS Claimant testified that the subject $1,000.00 is funds she withdrew from her 401K account. Claimant presented a document as proof of the transaction. Claimant further testified that she never admitted to selling pills or marijuana. Claimant testified that she used to smoke lots of marijuana, but that she never sold any, and that she has foster children, therefore she has pills around her home for headaches and other illnesses. Mr. Phillips testified that he never admitted to selling marijuana or pills. Both Claimant and Mr. Phillips testified that the marijuana found in their home was for personal use. Trooper Robertson testified that Claimant admitted that Hydrocodone was sold at their residence. Claimant presented proof that the subject $1,000.00 is funds she received from her 401K. Mr. Phillips, on the other hand, did not present any proof as to how he got the subject $525.00. Based on the above, it is ORDERED that $1,000.00 be returned to the Claimant, and $525.00 be forfeited to the Seizing Agency. IT IS SO ORDERED. This Initial Order entered and effective this 26 day of July, 2012 Joyce Carter-Ball Administrative Judge 4
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