University of Tennessee, Knoxville Trace: Tennessee Research and Creative Exchange Tennessee Department of State, Opinions from the Administrative Procedures Division Law 10-13-2009 TENNESSEE DEPARTMENT OF SAFETY vs. 1993 GMC SUBURBAN, VIN #1GKEC16RXWJ720616, SEIZED FROM: JERMAIN BLAIR, SEIZURE DATE: APRIL 10, 2009, CLAIMANT: ASHLYN KNIGHT, 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. ) ) 1993 GMC SUBURBAN ) VIN #1GKEC16RXWJ720616 ) SEIZED FROM: JERMAIN BLAIR ) SEIZURE DATE: APRIL 10, 2009 ) CLAIMANT: ASHLYN KNIGHT ) LIENHOLDER: n/a ) ) Docket No. 19.01-105023J ) ) Department of Safety ) Case No. J3236 ) INITIAL ORDER This matter came on to be heard on October 13, 2009 in Knoxville, 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. Nina Harris, attorney for the Department of Safety, represented the State. Claimant Ashlyn Knight was present at the hearing and was represented by Ms. Lauren Biloski, attorney, of the Oak Ridge, Tennessee Bar. The subject of this hearing was the proposed forfeiture of a 1993 GMC Suburban vehicle, VIN #1GKEC16RXWJ720616, for the seized vehicle s 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). $1062.00 in U.S. currency was also seized from the driver of the
vehicle, Jermaine Blair. However, no claim was filed for the currency, so the currency is forfeited by operation of law. After consideration of the evidence offered, the arguments of counsel, 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. On April 10, 2009 Officer Ray Steakley, of the Oak Ridge, Tennessee Police Department, was on patrol in Oak Ridge when he received a BOLO ( be on the lookout ) for a blue Suburban vehicle with TN registration 023-THZ. 2. Officer Steakley was informed by the Oak Ridge Police Department dispatch that a citizen had called in a complaint stating that he had observed the occupants of the vehicle making a drug transaction. The caller informed dispatch of the description and tag number of the vehicle, as well as the exact location of the vehicle. 3. Officer Steakley found the subject vehicle. He verified the tag number, and when he observed that the driver of the vehicle, Jermaine Blair, was not wearing a seat belt, Officer Steakley initiated a traffic stop on Mr. Blair. 4. Officer Steakley smelled a strong odor of marijuana coming from the vehicle driven by Mr. Blair. 5. Officer Steakley and an assisting officer, Dustin Henderson, found four plastic baggies containing marijuana laying on the ground beside the passenger side 2
of the vehicle, and also discovered one plastic baggie of marijuana stuck in the passenger s side door of the vehicle. 6. Both the driver of the vehicle, Mr. Blair, and the passenger of the vehicle were arrested and placed into custody. Mr. Blair was charged with possession of marijuana for resale. 7. Jermaine Blair had $1062.00 in U.S. currency in his pockets. Mr. Blair was unemployed except for occasional landscaping work, and could not explain a legitimate source for the currency. Consequently, Mr. Blair s currency was seized. No claim was filed for the seized money. 8. Mr. Blair s criminal record was retrieved by the officers. It revealed that Mr. Blair had a criminal record for felony possessions of schedule VI drugs for resale, felony possessions of marijuana for resale, possession of schedule IV drugs for resale, and felony possession of a schedule II drug (crack cocaine) for resale. 9. The TBI Forensic Chemistry Report revealed that the seized marijuana was 14.6 grams in weight. 10. Officer Steakley s testimony was credible. 11. Claimant Ashlyn Knight testified. She stated that she is the owner of the seized Suburban. 12. Ms. Knight testified that the driver of the seized vehicle, Jermaine Blair, is her fiancé. Ms. Knight related that she and Mr. Blair have been together in a relationship for eleven years. 13. Ms. Knight admitted that she knew Mr. Blair had a history of drug activities. Ms. Knight was aware of Mr. Blair s previous arrests and criminal record. 3
14. According to Ms. Knight, Mr. Blair sometimes used her Suburban. She kept the Suburban s keys on the bookshelf. 15. Mr. Blair testified that he had lived with Ms. Knight for seven years. He and Ms. Knight have a daughter. He admitted that he did not have to ask permission to use the Suburban, and he has his own key to the Suburban. He testified that he used the Suburban two or three times per week. 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. 39-17-402. 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(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. 3. 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. 4. In Claimant s case, he had transported 14.6 grams of marijuana, which was packaged in four baggies. He had a large amount of cash on his person which 4
could not be attributed to employment or legitimate acquisition. When the Officer made the traffic stop, there was a strong odor or marijuana in the vehicle. 5. T.C.A. 39-17-417 states as follows: T.C.A. 39-17-417. 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. 6. 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 not less than one-half ounce (14.175 grams) up to ten pounds (4535 grams) of marijuana. Such a violation is a Class E felony. 7. Because Claimant possessed and/or transported greater than one-half ounce of marijuana, packaged in four bags, the inference is made that Claimant intended to transport and deliver or sell the marijuana recovered from the vehicle. 8. 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. 9. 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 5
laws. T.C.A. 53-11-201(f)(1). See also, Urquhart v. Department of Safety, 2008 WL 2019458 (Tenn. Ct. App. 2008). 10. Claimant did not show that she did not know or have reason to know that her vehicle was being used to facilitate a violation of Tennessee s drug laws. In fact, her testimony supports that she knew of Mr. Blair s past criminal record and his drug activities. Mr. Blair did not have to ask permission to use the Suburban, but was free to use it as he chose. 11. Rule 1340-2-2-.05 (4), The Rules of Procedure for Asset Forfeiture Hearings, Department of Safety (Revised) 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) How the parties involved regarded ownership of the vehicle in question; (b) The intentions 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 the property; (h) Who acts as if they have a proprietary interest in the property? 12. Claimant cannot show that she is an innocent owner when she had knowledge of Mr. Blair s drug activities. Further, the testimony of both Mr. Blair 6
and Claimant supports that Mr. Blair can use the vehicle at his pleasure, which fulfills many of the indicia of ownership factors. 13. The evidence preponderates that Mr. Blair was using the seized vehicle to transport and deliver marijuana for resale. Claimant has not shown that she is an innocent owner. Claimant s use of the vehicle supports that he used the vehicle as his own vehicle without asking Claimant s permission. 14. The State has met its burden of proof in this case. The seized vehicle is subject to forfeiture. Accordingly, it is ORDERED that the above captioned vehicle be immediately FORFEITED to the seizing agency. It is so ordered. This Order entered and effective this 25th day of November, 2009. Thomas G. Stovall, Director Administrative Procedures Division 7