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Tennessee Department of State, Opinions from the
Administrative Procedures Division
1-26-2010
TENNESSEE DEPARTMENT OF SAFETY vs.
Two Thousand Two Hundred Forty-Eight and no/
100 Dollars $2,248.00 in US Currency, Seized
From: Larry M. Moore, Date of Seizure: 6/5/09,
Claimant: Larry M. Moore
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Part of the Administrative Law Commons
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 [email protected]
Law
BEFORE THE COMMISSIONER OF THE
TENNESSEE DEPARTMENT OF SAFETY
IN THE MATTER OF:
TENNESSEE DEPARTMENT OF
SAFETY
DOCKET NO: 19.01-106274J
(D.O.S. Case No. J6595 )
v.
Two Thousand Two Hundred FortyEight and no/100 Dollars ($2,248.00)
in US Currency
Seized From: Larry M. Moore
Date of Seizure: 6/5/09
Claimant: Larry M. Moore
INITIAL ORDER
This matter was heard on January 26, 2010 in Lawrenceburg, Tennessee, before
Margaret R. Robertson, Administrative Law Judge, assigned by the Secretary of State,
and sitting for the Commissioner of the Tennessee Department of Safety. Orvil Orr, Staff
Attorney for the Department of Safety, represented the State. The Claimant, Larry M.
Moore, was represented by J. Daniel Freemon of the Lawrence County bar.
The subject of this hearing was the proposed forfeiture of the subject property for
its alleged use in violation of T.C.A. §53-11-201 et seq. and §40-33-201 et seq.
MOTION TO DISMISS
As a preliminary matter at the hearing, the Claimant raised an objection to the
validity of the forfeiture warrant in this matter. The State opposed consideration of the
motion on the basis that the motion is required by the Department’s Rules of Procedure
for Asset Forfeiture Hearings to be filed at least ten days prior to a hearing on the merits.
Rule 1340-2-2-.10(3)(b). Claimant contended he had not had access to the forfeiture
warrant and accompanying documents before attending the scheduled hearing and thus
was prevented from making the motion at an earlier time.
There was no evidence to
contradict the assertion that Claimant had just learned of the omission in the forfeiture
warrant affidavit. Therefore, the State’s objection to the motion was overruled and a
prehearing conference was held in which the motion was considered.
Claimant contended that the Forfeiture Warrant was fatally defective because the
line in the warrant that addresses evidence of the officer’s probable cause to believe the
items seized are subject to forfeiture was left blank. Two blank lines are provided on the
warrant affidavit form for this information. Under one of the blank lines is printed the
instruction “(attach narrative and all supporting documents).” A completed two-page
“Narrative Form” and an itemized list of property seized, location and seizing officer was
stapled to the Forfeiture Warrant and accompanying affidavit.
The same General
Sessions Judge signed both the warrant and the affidavit.
Claimant argues that because the line on the affidavit form was left blank, the
affidavit was fatally defective and that, therefore, the property for which he filed a claim
(the $2,248 in currency) must be returned to him. This argument fails. A timely
narrative affidavit of two pages and a list of property seized are attached to the affidavit.
The seizing officer, Officer Rob Franks, testified that he presented the narrative and
property list together with the warrant and affidavit to the judge for signature. His
testimony was credible. It is less likely than not that the judge would intentionally sign
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an affidavit that was entirely devoid of a representation of probable cause. Thus it is the
more probable conclusion, supported by the officer’s testimony and the current
presentation of affidavit, warrant and supporting documentation, that the attached
narrative and seizure list accompanied the warrant and affidavit when they were
presented to the judge and were available to be considered by the judge prior to signature
of the warrant and affidavit. Therefore, Claimant’s motion to dismiss on this basis is
DENIED. A hearing on the merits followed.
FINDINGS OF FACT
1.
Pursuant to knowledge that a confidential informant had recently made a
controlled purchase of marijuana from Claimant there, Officer Rob Franks and his
colleagues obtained a search warrant for Claimant’s residence and executed it on June 5,
2010. While there, they seized the following contraband substances: 24.1 grams of
marijuana in a plastic baggie plus some used roaches and partially smoked cigarettes, and
17 tablets of dihyrocodeinone, a Schedule II drug, found in a pill bottle without any
prescription label.
2.
Officers also seized a “hitter” box, a match holder with marijuana, a
quantity of incense, two shotguns with rounds, a hat bearing the word “POLICE” and the
currency at issue in this case.
Two Thousand Dollars in currency was found in
Claimant’s wallet, which was underneath the mattress in the master bedroom. Another
Forty-Eight dollars in currency was found on the nightstand in the master bedroom.
3.
Officer Frank’s check of the Claimant’s criminal history revealed that the
Claimant had a prior conviction for possession of marijuana for resale. No evidence was
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presented at the hearing of any legitimate source for the currency or of employment of
the Claimant. The Claimant declined to offer any testimony or witnesses at the hearing.
CONCLUSIONS OF LAW AND ANALYSIS
1.
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 or
dihydrocodeinone] with intent to manufacture, deliver or sell such
controlled substance.
2.
T.C.A. §39-17-417(g)(1) provides that subsection (a)(4) [intent to
manufacture, deliver, or sell] is violated 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. Subsection (d)(1) provides that a violation of Subsection (a)(4) with respect to
a Schedule III controlled substance such as dihydrocodeinone is a Class D felony. The
quantity of marijuana seized 924.1 grams) exceeded 14.175 grams and therefore falls
under subsection (a)(4).
In addition, 17 pills of dihydrocodeinone, a Schedule III
narcotic, were seized.
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.” The controlled substances seized at
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Claimant’s residence exceeded the amount of marijuana that might be construed for
personal use. Given the amount of marijuana found and the presence of narcotics without
a prescription, there is a permissible inference that these drugs were possessed for the
purpose of selling or otherwise dispensing. In addition, the Claimant’s prior record for
possession of drugs for resale and the evidence that a controlled buy was made at
claimant’s residence just days prior to the search and seizure further support this
inference.
4.
“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. T.C.A. §53-11-451(a)(6)(A). [Emphasis added.]
5.
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 is subject to forfeiture, pursuant to law. Failure to carry the burden of
proof operates as a bar to the proposed forfeiture. T.C.A. §§53-11-201(d)(2) and 40-33210(a) and (b)(1); Rule 1340-2-2-.15, TENN. COMP. R. & REGS., Rules of the
Tennessee Department of Safety. Specifically, in this case, the State must prove that the
money found in the Claimant’s residence was “intended to be used, to facilitate [a]
violation of the Tennessee Drug Control Act.”
6.
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
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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). (Emphasis
added.)
7.
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).
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 actual currency used in the controlled buy
was not retrieved, several days had passed, and that particular currency could have been
spent. The marijuana was found in the living room and the pills in the adjacent bedroom,
where the currency was also located, so the drugs and currency were located near one
another. The packaging of the marijuana was consistent with packaging for sale. The
presence of drugs, the controlled buy and the Claimant’s prior record for possession of
drugs for sale are sufficient to establish the necessary nexus between the seized currency
and illegal drug sales activity.
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9.
In a forfeiture proceeding such as this one, proof that a Claimant has a
criminal record for felony drug sales may legitimately raise an issue concerning the
source of the Claimant’s income. The connection here between evidence of prior drug
sales and the currency seized is further strengthened by the lack of evidence of any
legitimate source for the currency.
10.
It is concluded, therefore, that the Seizing Agency 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).
Therefore, the Two Thousand Two Hundred Forty-Eight and no/100 Dollars
($2,248.00) in US Currency seized from the Claimant is hereby FORFEITED to the
seizing agency for disposition according to law.
This Initial Order entered and effective this 23rd day of December, 2010.
_____________________________________
Margaret R. Robertson
Administrative Judge
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Filed in the Administrative Procedures Division, Office of the Secretary of State,
this 23rd day of December, 2010.
Thomas G. Stovall, Director
Administrative Procedures Division
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