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University of Tennessee, Knoxville Trace: Tennessee Research and Creative Exchange Tennessee Department of State, Opinions from the Administrative Procedures Division Law 3-24-2008 TENNESSEE DEPARTMENT OF SAFETY vs. 1999 PONTIAC GRAND AM, VIN #1G2NE52T5XM842965, SEIZED FROM: IRENZO LEE TERRELL, SEIZURE DATE: NOVEMBER 8, 2007, CLAIMANT: MARSHA TERRELL, 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, v. ) ) 1999 PONTIAC GRAND AM ) VIN #1G2NE52T5XM842965 ) SEIZED FROM: IRENZO LEE TERRELL ) SEIZURE DATE: NOVEMBER 8, 2007 ) CLAIMANT: MARSHA TERRELL ) LIENHOLDER: N/A ) ) Docket No. 19.01-098469J ) ) Department of Safety ) Case No. G8516 ) INITIAL ORDER This matter came on to be heard on March 24, 2008, in Chattanooga, Tennessee before Joyce Grimes Safley, Administrative Judge, assigned by the Secretary of State, and sitting for the Commissioner of the Tennessee Department of Safety. Ms. Lori Long, attorney for the Department of Safety, represented the State. Claimant, Marsha Terrell, was present at the hearing and represented herself. The subject of this hearing was the proposed forfeiture of a 1999 Pontiac Grand Am, VIN #1G2NE52T5XM842965, for its alleged use in violation 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 pro se claimant, and the entire record in this matter, it is ORDERED that the seized vehicle 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. Agent Dave Jones of the 10 th District Drug Task Force testified on behalf of the State. 2. On November 8, 2007, Agent Jones and other agents on duty, stopped at the Rocky Top gas station in Cleveland, Tennessee. 3. While Agent Jones was inside the store, the store clerk told him that a suspicious car had pulled in front of the gas pumps. 4. The man driving the vehicle (driver of the first car) left the engine running while his passenger jumped out and got into a Pontiac Grand Am, later found to be driven by Irenzo Terrell. The passenger in the first car rode off with Irenzo Terrell. 5. Based upon his years of experience and his training as a Drug Task Force agent, Agent Jones believed that the occupants of the two vehicles were involved in an illegal narcotic transaction. 6. Agent Jones returned outside the gas station market as the passenger in the first car was dropped off by the person driving the Pontiac Grand Am (Irenzo Terrell). 7. The driver of the first car drove off with his passenger, and was followed by some of the other Drug Task Force agents present at the gas

station. The driver of the Pontiac Grand Am (Irenzo Terrell) drove off, driving southbound on Keith Street in Cleveland, Tennessee. Agent Jones and another agent followed the blue Pontiac Grand Am (driven by Irenzo Terrell). 8. The Pontiac Grand Am began traveling at 51 mph in a posted 45 mph speed zone. When Agent Jones ran the vehicle s tags, the registration identified it as belonging on a gold Pontiac. 9. Agent Jones initiated a traffic stop. He explained to the vehicle s driver, Irenzo Terrell, what he had observed at the Rocky Top Market. Mr. Terrell denied that he had been at the market, and stated he had just been at a friend s house. 10. Agent Jones believed he had witnessed a drug transaction, and asked for permission to search Mr. Terrell s vehicle. 11. Mr. Terrell gave consent for Agent Jones to search the vehicle. 12. Agent Jones found approximately ½ ounce of marijuana stuff between the passenger seat and the center console of Mr. Terrell s vehicle. He also found digital scales which had fresh marijuana residue on them. Upon searching further, Agent Jones discovered a box of sandwich bags and numerous corner baggies on the rear seat. 13. The driver of the first vehicle, the green vehicle, was stopped by other agents. The passenger in the first vehicle, John Carter, gave a statement that he had purchased marijuana from Mr. Terrell. Adam Macon, the driver of the green vehicle, also gave a statement in which he admitted that he had met

with Mr. Terrell and purchased two twenty sacks of marijuana from Mr. Terrell, and had paid with two twenty dollar bills. 14. Mr. Terrell stated that the vehicle he was driving, the blue Pontiac Grand Am referenced above, belonged to him and he had been the sole owner since he was 16 years of age. Mr. Terrell told Agent Jones that the Grand Am was registered to his mother, but belonged to him. 15. Mr. Terrell s personal belongings were in the Grand Am. They included sales receipts, CD s with Mr. Terrell s name written on them with magic marker, and check stubs. 16. $211 in cash was seized by the agents 1, along with the vehicle. 17. Additionally, a cell phone was seized. 18. Claimant asserted a claim for the vehicle, and at the hearing testified that the seized cell phone was also hers. 19. Claimant s testimony that the cell phone was her telephone is not deemed credible. The cell phone contained pictures of bags of marijuana, Mr. Terrell, 100 dollar bills, a stack of currency, Mr. Terrell holding bags of marijuana, and a young woman dressed only in underwear who appeared to be touching her genitals. There were also pictures of Mr. Terrell with Claimant, a picture of Claimant s birthday cake, and other family members. 20. It strains credulity to believe that Claimant, a middle-aged woman, has a cell phone containing the pictures of marijuana, cash, and the lingerieclad young woman described above. 2 1 No claim was made for the currency seized.

21. At the time the above vehicle was seized, Mr. Terrell was not living at Claimant s residence but was living with his girlfriend at a different residence. Mr. Terrell kept the car with him, and bought gas for the vehicle. 22. Claimant conceded that she primarily drove a truck she owns. She testified that she paid for the vehicle and that she paid the vehicle s insurance. 23. Mr. Terrell was in possession of the vehicle at the time the traffic stop was made. 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 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 2 For argument s sake, even if the cell phone belonged to Claimant Marsha Terrell, she could not claim that she did not know or have reason to believe Mr. Terrell was selling marijuana when the cell phone contained such photographs.

facilitate the transportation, sale or receipt of property described in subdivision (a)(1) or (2). 3. It is noted that no conveyance is subject to forfeiture under T.C.A. 53-11-451 for simple possession of a controlled substance as set forth in T.C.A. 39-17-418. See T.C.A. 53-11-451 (4)(C) and T.C.A. 39-17-418. 4. 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). 5. Rule 1340-2-2-.05 (4), The Rules of Procedure for Asset Forfeiture Hearings, Department of Safety (Revised December 2007), 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;

(g) (h) Who has access to the property; Who acts as if they have a proprietary interest in the property. 6. Mr. Terrell stated that the vehicle he was driving, the blue Pontiac Grand Am referenced above, belonged to him and he had been the sole owner since he was 16 years of age. Mr. Terrell told Agent Jones that the Grand Am was registered in his mother s (claimant s) name, but belonged to him. 7. Mr. Terrell s personal belongings were in the Grand Am. They included sales receipts, CD s with Mr. Terrell s name written on them with magic marker, and check stubs. 8. Mr. Terrell did not reside with his mother, and had possession and control of the vehicle. 9. Mr. Terrell s cell phone was in the vehicle. Claimant s testimony regarding her ownership of the cell phone was not credible. 10. It is clear that Mr. Terrell regarded the vehicle as his vehicle. There is no evidence that any belongings of Claimant s were found in the automobile. All of these facts support Mr. Terrell s being the true owner of the vehicle. These facts also support that the intentions of Mr. Terrell, and his mother, Claimant Marsha Terrell, were for the vehicle to be considered Mr. Terrell s. Clearly, the vehicle was intended for his use and benefit, not his mother s. 11. With regard to the person who used or operated the vehicle, the evidence preponderates that Mr. Terrell used and operated the subject vehicle. He kept it at his new residence, not at Claimant Terrell s residence.

12. While Claimant testified that both she and her son had a set of keys to the subject vehicle, it is clear from the testimony provided that Mr. Terrell was the person with unlimited access to use the vehicle. Claimant did not have access to the vehicle while it was at Mr. Terrell s work or at his new home. 13. Mr. Terrell acted as if he had a proprietary interest in the vehicle when he told the drug agents that he was the sole owner of the car. 14. Agent Jones testimony regarding Mr. Terrell s statements of ownership is deemed credible. 15. While it is true that Claimant is the registered owner of the car, there was no testimony that Claimant put any restrictions on Mr. Terrell s use of the vehicle. 16. Pursuant to all the indicia of ownership, Mr. Terrell is the true owner of the above referenced vehicle. 17. 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 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. 18. T.C.A. 53-11-451(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. 19. 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. 39-17-415 20. Marijuana is a controlled substance (Schedule VI drug). T.C.A. 21. Possession of marijuana is a Class E felony if the amount involved is greater or equal to 14.175 grams (one-half ounce) and less than or equal to 4535 grams (10 lbs). See T.C.A. 39-17-417(g)(1). 22. T.C.A. 39-17-417 states as follows: 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. 23. T.C.A. 39-17-417(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 14.175 grams (one-half ounce) or more of any substance containing marijuana. Here, the amount of marijuana seized from Claimant s vehicle was one-half ounce

24. The State has met its burden of proof in this case. Given all the evidence and circumstances in this matter, it is more probable than not that Mr. Terrell was using the seized vehicle to conduct illegal drug sales and to transport illegal drugs (marijuana). 25. Additionally, the evidence preponderates that Mr. Terrell, not Claimant, is the true owner of the vehicle. Claimant Marsha Terrell s claim for the vehicle must fail. 26. The seized property is subject to forfeiture. Accordingly, for all the above reasons, it is ORDERED that Claimant s claim is DISMISSED, and the subject vehicle be immediately FORFEITED to the seizing agency. It is so ordered. This Order entered and effective this 25th day of April, 2008. Thomas G. Stovall, Director Administrative Procedures Division