University of Tennessee, Knoxville Trace: Tennessee Research and Creative Exchange Tennessee Department of State, Opinions from the Administrative Procedures Division Law 5-13-2014 Trey & Michael Torres vs. Safety 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
Mailed On:5-13-2014 BEFORE THE COMMISSIONER OF THE TENNESSEE DEPARTMENT OF SAFETY AND HOMELAND SECURITY IN THE MATTER OF: TENNESSEE DEPARTMENT OF SAFETY, Docket No. 19.01-123695J v. Department of Safety No. N9758 2007 Hummer H3 VIN# 5GTDN13E278109211 $171.00 in U.S. Currency SEIZED FROM: Trey Torres SEIZURE DATE: June 24, 2013 CLAIMANT: Michael Torres LIENHOLDER: N/A INITIAL ORDER This matter came to be heard on February 19, 2014, in Knoxville, Tennessee before Rob Wilson, Administrative Judge, assigned by the Secretary of State, and sitting for the Commissioner of the Tennessee Department of Safety. Mr. Patrick Rice, Attorney for the Department of Safety, represented the State. The Claimant, Michael Torres, was present, and was represented Attorney Brent R. Watson. The subject of this hearing was the proposed forfeiture of the subject automobile for its alleged use in violation of T.C.A. 53-11-201 et seq. and 40-33-201 et seq. After consideration of the entire record and the arguments of the parties, it is determined that forfeiture is not allowed in this case and that the 2007 Hummer H-3 should be returned to the Claimant. This decision is based upon the following Findings of Fact and Conclusions of Law.
FINDINGS OF FACT 1. On Monday, June 24, 2013, Officer J. Doran of the narcotics interdiction team observed the vehicle in question driving over the speed limit. 2. A traffic stop was initiated, and the officer smelled the odor of marijuana coming from within the vehicle. The vehicle was being driven by Trey Torres, who is the son of Claimant Michael Torres. 3. There were two other people in the vehicle in addition to Trey Torres, and all three occupants granted consent to search the vehicle. 4. A search of the vehicle revealed 1.4 ounces of marijuana, one digital scale, one pipe, and two pill bottles containing 120 unidentifiable pills. Defendant Trey Torres had $171.00 in U.S. Currency on his person. 5. Trey Torres was arrested and the truck and currency were seized pursuant to forfeiture laws. 6. Sergeant James Hammond was a backup officer during the June 24 th arrest. Sergeant Hammond testified that Trey Torres stated that the Hummer was his (Trey s) vehicle. 7. The Hummer is registered to Michael Torres, Trey s father. 8. Mr. Michael Torres (the claimant) testified that the Hummer belonged to him. He stated that he purchased the car in 2008 because his Aunt had a GM discount and he had wanted a luxury car. He testified that he drove the car exclusively until 2012, and in the fall of 2012 his son was going to college and needed transportation, so Michael 2
Torres allowed his sons to use the Hummer for school. Claimant s older son, Tanner, used the car first, followed by Trey. 9. Claimant Michael Torres paid to maintain and insure the vehicle. 10. Trey Torres also testified at the hearing. He stated that his father allowed him to use the vehicle for transportation at college. He further stated that he never told the arresting officers that the vehicle was his. He stated that he also occasionally drove his mother s vehicle to school. CONCLUSIONS OF LAW 1. The Notice of Seizure and Drug Asset Forfeiture Warrant in this case were issued pursuant to TENN. CODE ANN. 53-11-451(a)(4), which provides that, All conveyances... which are used, or are intended for use, to transport, or in any manner facilitate the transportation, sale or receipt of drugs in violation of the Tennessee Drug Control Act are subject to forfeiture under the law. 2. The Tennessee Department of Safety bears the burden of proof in forfeiture proceedings, and must therefore prove, by a preponderance of the evidence, that the seized property was used in a manner making it subject to forfeiture, pursuant to law. [See, TENN. CODE ANN. 40-33-210(a).] Failure to carry the burden of proof operates as a bar to the proposed forfeiture. TENN. CODE ANN. 40-33-210(b)(1); and, Rule 1340-2-2-.15, TENN. COMP. R. & REGS., Rules of the Tennessee Department of Safety. 3
3. The State s proof established, by a preponderance of the evidence, that the vehicle was used by Trey Torres to transport a quantity of marijuana in violation of the Tennessee Drug Control Act. It is therefore concluded that, when the vehicle was used to transport controlled substances, it became subject to forfeiture as a conveyance that was used, or intended for use, to transport, or in any manner facilitate the transportation, sale or receipt of drugs in violation of the Tennessee Drug Control Act. TENN. CODE ANN. 53-11-451(a)(4). 4. However, Trey Torres is neither the owner of the seized vehicle nor the Claimant for the vehicle. The only claimant is his father, Michael Torres, who is the owner of the vehicle. The law also provides that, when the owner of the vehicle is not present at the time of the seizure, his/her legal interest is not subject to forfeiture without proof that the owner knew that the vehicle was being used in a manner making it subject to forfeiture and consented to its use. TCA 40-33-210(c). In this case, the Claimant, Michael Torres, is an innocent owner in this situation and is therefore entitled to have the vehicle returned to him. 5. The State did not put on any proof that the registered owner of the vehicle (Michael Torres) knew that Trey was using or driving the vehicle in violation of the Tennessee Drug Control Act. Rather, the State relies upon an indicia of ownership argument that Trey, not Claimant, is actually the owner of the Hummer subjecting the vehicle to forfeiture. Further, the State relies solely on Trey s alleged admissions to the arresting officer that the Hummer was his car. 4
6. Proof of ownership of a vehicle involves evidence with regard to possession and exercise of the prerogatives of ownership rights. Cunningham v. Department of Safety, 1997 WL 266851, p. 2 (Tenn. Ct. App. 1997). 7. In order to determine ownership of a vehicle, the trier of fact may consider and weigh evidence regarding: (1) circumstances regarding the vehicle s purchase, (2) the registration of the vehicle, (3) purchase of insurance for the vehicle, (4) all the parties financial stake in the vehicle, (5) actual possession of the vehicle, (6) the person bearing the expense of operating, maintaining, and licensing the vehicle, and (7) the ultimate right to control the vehicle and make decisions regarding its use. Cunningham v. Department of Safety, 1997 WL 266851, p. 2 (Tenn. Ct. App. 1997). provides: 8. Rule 1340-2-2-.05(4) of the Rules of the Tennessee Department of Safety If the person in possession of the property is not the registered owner as indicated 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 an owner of the property. Such indicia of ownership shall include, but is not limited to the following: (a) How the parties involved regarded ownership of the property in question; (b) The intention of the parties relative to ownership of the property; (c) Who was responsible for originally purchasing the property; (d) Who pays any insurance, license or fees required to possess or operate the property; (e) Who maintains and repairs the property; (f) Who uses or operates the property; (g) Who has access to use the property; (h) Who acts as if they have a proprietary interest in the property. 5
9. In this matter Claimant Michael Torres asserts that he is the owner of the subject vehicle. The vehicle is titled in his name, he originally purchased the vehicle, he pays for the insurance and licensing fees, and he pays for the vehicle s maintenance. The only proof regarding anyone owning the Hummer (other than Michael Torres) was testimony from two arresting officers who stated that Trey Torres told them the Hummer was his. Trey Torres testified under oath that he never made such a statement, and Michael Torres testified the Hummer was his, but that he allowed his son to use the Hummer to travel to and from school. 10. It is determined, based upon a preponderance of the evidence presented, that Claimant Michael Torres is the owner of the vehicle. No proof was offered that Claimant knew or should have known that his son would use the vehicle in a manner that would make it subject to forfeiture. Accordingly, it is ORDERED that the subject vehicle be RETURNED to Claimant Michael Torres. This Order entered and effective this day of, 2014. Rob Wilson Administrative Judge 6
Filed in the Administrative Procedures Division, Office of the Secretary of State, this day of 2014. J. Richard Collier, Director Administrative Procedures Division 7