University of Tennessee, Knoxville Trace: Tennessee Research and Creative Exchange Tennessee Department of State, Opinions from the Administrative Procedures Division Law 7-22-2013 Valorie D. Thacker vs. Department of 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:7-22-2013 BEFORE COMMISSIONER OF THE TENNESSEE DEPARTMENT OF SAFETY DEPARTMENT OF SAFETY, ] ] vs. ] DOCKET # 19.01-122040J ] DOS # N3760 $428.00 in U.S. Currency ] Seized From: Valorie D. Thacker ] Seizure Date: 11/9/12 ] Claimant: Valorie D. Thacker ] Seizing Agency: 1 st J.D.T.F. ] INITIAL ORDER This contested administrative case was heard in Fall Branch, Tennessee, on July 16, 2013, before J. Randall LaFevor, Administrative Judge, assigned by the Secretary of State and sitting for the Commissioner of the Tennessee Department of Safety. Ms. Nina Harris, Staff Attorney for the Tennessee Department of Safety, represented the Seizing Agency. The Claimant appeared pro se. This hearing was convened to consider the proposed forfeiture of $428.00 in U.S. currency, based on allegations that the Claimant s possession and/or receipt of that money was in violation of the Tennessee Drug Control Act. Upon full consideration of the record in this case, it is determined that the proposed forfeiture should be denied, and that the money should be returned to the Claimant. This decision is based on the following Findings of Fact and Conclusions of Law: FINDINGS OF FACT 1. On November 9, 2012, an officer with the First Judicial District Task Force received a phone call from an anonymous source, stating that a drug sale would take place in the parking lot of a local business during the employees lunch break. 1 Acting on that information, officers went to the parking lot, and watched for the cars and people described by the anonymous caller. 1 While that testimony was admitted to show the reason for the officer s further investigation, it cannot be considered as evidence supporting the substantive allegations against the Claimant.
2. When the lunch break began, an employee (Nancy Wilcox) left the building, went to her car, and sat in the back seat. Shortly thereafter, another car, occupied by Valorie Thacker ( the Claimant ) and Frances Bennett, entered the parking lot, and stopped. The Claimant left her vehicle and joined Wilcox in the back seat of her car. 3. The officers were not able to see what occurred in Wilcox s car, but they soon saw Wilcox leave her car, and return to the building. Assuming that a drug sale had just occurred, the officers approached the car and asked the Claimant to get out. 4. They searched the Claimant, and found several bottles containing prescription drugs: Dihydrocodeinone (118 tablets); Clonazepam (93 tablets); and Alprazolam (11½ tablets). They also found documents showing that the Claimant had valid prescriptions for the drugs, and receipts verifying that she had filled two of them earlier that morning: Dihydrocodeinone (150 tablets 30 day supply); and, Clonazepam (90 tablets 30 day supply). 2 5. The officers also found $428.00 in the Claimant s purse. That money was seized on the officers belief that it was the proceeds of illegal drug transactions. (The officers searched all other persons present, including Wilcox, whom the officers believed had bought drugs from the Claimant, and found no drugs or other contraband.) The Claimant filed a petition for the return of her money, and this hearing was scheduled to consider her claim. 6. At the hearing, the Claimant testified that she had purchased the medications earlier that morning at her local Kroger pharmacy. She then went home and filled her weekly pill dispenser from the pill bottles, transferred remaining pills from her previous prescriptions into the new bottles, and put the bottles in her purse. She then drove to the parking lot with her friend, Frances Bennett, where she was supposed to lend some money to one of Bennett s relatives. Her testimony was consistent with the information she provided to the officers when they approached her in the parking lot. The State 2 See Collective Exhibit #1, Prescription receipts detailing drugs, quantity etc. 2
offered no evidence challenging her testimony; and, her testimony was deemed to be highly credible, and supported by the documentary proof admitted during the hearing. CONCLUSIONS OF LAW and ANALYSIS 1. The State bears the burden of proof in this case, and must therefore prove, by a preponderance of the evidence, that the seized currency is subject to forfeiture, pursuant to law. Failure to carry the burden of proof operates as a bar to the proposed forfeiture. TENN. CODE ANN. 53-11-201(d)(2); Rule 1340-2-2-.15, TENN. COMP. R. & REGS., Rules of the Tennessee Department of Safety. 2. 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... used, or intended to be used, to facilitate any violation of the Tennessee Drug Control Act... are subject to forfeiture under the law. TENN. CODE ANN. 53-11-451(a)(6)(A). 3. In the instant proceeding, the State contends that the currency seized from the Claimant was received in exchange for controlled substances, or proceeds traceable to the illegal sale of drugs. The essence of that argument is the State s assertion that the Claimant sold drugs to Wilcox while sitting in her car in the parking lot. 4. However, that assertion is not supported by the evidence. First, the officers did not observe the Claimant selling drugs to anyone. From their location, they could only see the two women sitting in the back seat of Wilcox s car. The seizing officer admitted that he could not see what they were doing. And, second, the officers searched Wilcox in the parking lot shortly after the alleged sale, and found no drugs in her possession. 5. The seizing officer testified that his belief that a sale had occurred was supported by the fact that the Claimant had purchased 150 Dihydrocodeinone tablets only a short time before the seizure, and she had only 118 in the bottle when she was searched. He concluded that she must have sold the remaining pills to Wilcox. However, the Claimant told the officer at the parking lot, and testified at the hearing, that she had gone home and 3
filled her weekly pill dispenser from the new bottle of pills before she drove to the parking lot. Since her monthly prescription was for 150 pills, she would have transferred an allotment of five (5) pills per day (or approximately 35 pills, less any remaining in her previous prescription bottle) from her new bottle to her weekly dispenser. The bottle in her possession when she was searched contained 118 pills, 32 pills less than the 150 tablets dispensed to her earlier that morning. That is consistent with her testimony. 6. The State offered no direct evidence linking the money seized from the Claimant to the sale of drugs. The seizing officer was able to prove no more than that he saw the Claimant sitting in a car with another woman. Without direct or compelling circumstantial evidence of the Claimant s involvement in illegal drug transactions, or a valid inference upon which to rely, it is not possible to conclude that the seized money was rendered subject to forfeiture pursuant to the Tennessee Drug Control Act. While the State could offer no such direct proof in this case, the officers seized the Claimant s money because they believed the seized currency may have been received in trade for drugs. It would be highly inappropriate to deprive a citizen of her property based on such speculation and conjecture. Having failed to provide a nexus between illegal drug transactions and the money seized from the Claimant, the State has simply failed to carry its burden of proof. Failure to carry the burden of proof operates as a bar to the proposed forfeiture. TENN. CODE ANN. 53-11-201(d)(2); Rule 1340-2-2-.15, TENN. COMP. R. & REGS., Rules of the Tennessee Department of Safety. Accordingly, it is hereby concluded that the State failed to prove, by a preponderance of the evidence, that the currency seized from the Claimant in this case was the proceeds of illegal drug transactions, as alleged in the Drug Asset Forfeiture Warrant. 4
It is therefore ORDERED that the $428.00 seized from the Claimant on November 9, 2012 shall be returned to the Claimant. Entered and effective this day of 2013. J. Randall LaFevor, Administrative Judge Filed in the Administrative Procedures Division, Office of the Secretary of State, this day of 2013. J. Richard Collier, Director Administrative Procedures Division 5