University of Tennessee, Knoxville Trace: Tennessee Research and Creative Exchange Tennessee Department of State, Opinions from the Administrative Procedures Division Law 3-6-2012 TENNESSEE DEPARTMENT OF SAFETY vs. 2011 Nissan Maxima, VIN #1N4AA5AP7BC815006, $1,776.00 in U.S. Currency, SEIZED FROM: LAKECHA DAVIS, SEIZURE DATE: APRIL 26, 2011, CLAIMANT: LAKECHA DAVIS, LIENHOLDER: N/A 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
BEFORE THE COMMISSIONER OF THE TENNESSEE DEPARTMENT OF SAFETY In the matter of: TENNESSEE DEPARTMENT OF SAFETY, Docket No. 19.01-116069J Department of Safety Case No. L5292 v. 2011 Nissan Maxima VIN #1N4AA5AP7BC815006 $1,776.00 in U.S. Currency SEIZED FROM: LAKECHA DAVIS SEIZURE DATE: APRIL 26, 2011 CLAIMANT: LAKECHA DAVIS LIENHOLDER: N/A INITIAL ORDER This matter came to be heard on March 6, 2012, in Memphis, Tennessee before Rob Wilson, 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, Lakecha Davis, was present and represented by Handel R. Durham, Esq. The subject of this hearing was the proposed forfeiture of a 2011 Nissan Maxima and $1,776.00 in U.S. Currency for alleged violations of the Tennessee Drug Control Act, T.C.A. 39-17-401, et seq., and T.C.A. 53-11-451(a(4. After consideration of the evidence offered, the arguments of counsel, and the entire record in this matter, it is
ORDERED that the seized vehicle and currency be FORFEITED to the seizing agency. This decision is based upon the following Findings of Fact and Conclusions of Law. FINDINGS OF FACT 1. Detective Timothy Bogue testified on behalf of the State. 2. Detective Bogue stated that Claimant s residence had been under surveillance due to information received regarding prescription medications. 3. Detective Bogue saw Claimant carrying a white bag to her car. Claimant then drove her car to the Enterprise Rental Car parking lot on Covington Pike where she parked next to a car with two males in it. One of the males got into Claimant s car and shortly thereafter exited the car carrying the white bag that Claimant had in her car. 4. The male was later identified as Brandon Vales, and the bag he obtained from Claimant contained 1352.80 grams of promethazine with codeine. 5. A search warrant was obtained for Claimant s residence and 2.9 grams of marijuana was found in Claimant s bedroom, as well as $1,776.00 in U.S. Currency. Claimant was charged with possession of a controlled substance with intent to manufacture, deliver, and sell. The U.S. Currency was seized as proceeds from the sale of illegal narcotics. Claimant s vehicle was seized because it was being used to transport narcotics from Claimant s residence to the Enterprise parking lot. CONCLUSIONS OF LAW 1. The State has the burden of proving, by a preponderance of the evidence, that the seized vehicle 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. 39-17-401, et 2
seq. See T.C.A. 40-33-210 and T.C.A. 53-11-201(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. 40-33-210(b(1. 2. T.C.A. 53-11-451 states: Goods subject to forfeiture---seizure---disposition.--- (a The following are subject to forfeiture: (1 All controlled substances that have been manufactured, distributed, dispensed, or acquired in violation of parts 3 and 4 of this chapter or title 39, chapter 17, part 4; *** (4 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 property described in subdivision (a(1 or (2. 3. 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 or that claimant has a good faith interest in the vehicle and that he or she did not know or have reason to know that the property was being used to facilitate a violation of the drug laws. T.C.A. 53-11- 201(f(1. 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. 3
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 largescale 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. 6. T.C.A. 39-17-419 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. The seized money was found in proximity to illegal controlled substances; Furthermore, Claimant has no verifiable source of income. No tax returns, pay stubs, estate records, affidavits, or any similar documentation was offered to prove that the seized money came from any source other than drug sales. 8. The State has met its burden to show by a preponderance of the evidence that the currency seized was intended to be used or was the proceeds of violations of the Tennessee Drug Control Act. Although the officers did not witness an actual hand to hand buy, they did witness Claimant giving a bag to Brandon Vales, and Mr. Vales was stopped immediately thereafter with the illegal narcotics. This fact, coupled with the discovery of the marijuana and large amount of cash found at Claimant s residence, is 4
sufficient to establish the necessary nexus between the seized automobile, currency, and illegal drug sales activity. The connection is further strengthened by the lack of evidence of any legitimate source for the currency. 9. It is concluded, therefore, that the Department of Safety has proven by a preponderance of the evidence that the seized currency was furnished, or intended to be furnished, in exchange for a controlled substance, or was proceeds traceable to such an exchange, or was used, or intended to be used, to facilitate any violation of the Tennessee Drug Control Act, as required to support a property forfeiture under T.C.A. 53-11-451(a(6(A. 10. The evidence preponderates that Ms. Davis used the vehicle to illegally transport and/or conduct illegal drug sales. The evidence further preponderates that the currency found in Claimant s house is proceeds from the sale of illegal narcotics. Accordingly, for all the above reasons, it is ORDERED that Claimant s claim is DISMISSED, and the subject vehicle and U.S. Currency be FORFEITED to the seizing agency. This Order entered and effective this 22 day of May, 2012 5
Thomas G. Stovall, Director Administrative Procedures Division 6