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Tennessee Department of State, Opinions from the
Administrative Procedures Division
7-27-2011
TENNESSEE DEPARTMENT OF SAFETY vs.
Two Hundred Seventy-Five Dollars $275.00 in US
Currency, Seized From: Brenda K. Gray, Date of
Seizure: February 1, 2011, Claimant: Brenda K.
Gray, Lien Holder: N/A
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This Initial Order by the Administrative Judges of the Administrative Procedures Division, Tennessee Department of State, is a public document made
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Law
BEFORE THE COMMISSIONER OF THE
TENNESSEE DEPARTMENT OF SAFETY
IN THE MATTER OF:
TENNESSEE DEPARTMENT OF
SAFETY
DOCKET NO: 19.01-113359J
(D.O.S. Case No: L2738)
v.
Two Hundred Seventy-Five Dollars
($275.00) in US Currency
Seized From: Brenda K. Gray
Date of Seizure: February 1, 2011
Claimant: Brenda K. Gray
Lien Holder: N/A
INITIAL ORDER
This hearing in this matter was conducted in Lawrenceburg, Tennessee, on July
27, 2011, 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, Attorney for the Tennessee Department of Safety, appeared for the
Department of Safety. The Claimant, Brenda K. Gray, represented herself.
The subject of this hearing was the proposed forfeiture of the seized currency for
its alleged use or intended use or receipt in violation of the Tennessee Drug Control Act,
T.C.A. §39-17-401, et seq., T.C.A. §53-11-451(a)(4) and T.C.A. §53-11-451(a)(6)A.
After consideration of the evidence offered, the arguments of counsel, and the
entire record in this matter, it is ORDERED that the seized currency be immediately
RETURNED to the Claimant. This decision is based upon the following Findings of
Fact and Conclusions of Law.
FINDINGS OF FACT
1.
On February 1, 2011, Detectives Zaidan and Stanfield of the Maury County
Sheriff’s Department observed two men purchasing a quantity of pseudoephedrine in
Wal-Mart. The men were then driven to CVS Pharmacy, where one man purchased
lithium batteries and the other purchased another quantity of pseudoephedrine.
Pseudoephedrine and lithium are ingredients used to produce methamphetamine.
2.
Claimant Brenda Gray was the driver of the vehicle in which the two men
were being transported. The detectives noted that the front seat passenger was not
wearing a seat belt, and made a traffic stop of the vehicle. William Gray, ex-husband of
the Claimant, was the front seat passenger. Jimmy Staggs rode in the back seat. After
Mr. Staggs was read his Miranda rights, he told the detectives that he purchased pills for
Mr. Gray with currency he obtained from Ms. Gray, who had told them to purchase the
pills. Mr. Gray, having been Mirandized, admitted he had purchased pills at Kroger and
Wal-Mart and purchased lithium batteries at CVS Pharmacy. He admitted he was doing
this to support his family, but would not reveal the identity of the person he supplied
because he feared for his life.
3.
When Ms. Gray was advised of her rights, she admitted to driving the two
men around, but denied knowing what they intended to purchase. When the vehicle was
searched by Detective Stanfield and Bucky Roland, a canine officer, a camera case found
under the driver’s seat was found to contain a plastic bag with 30 Lortab tablets, which
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the detectives interpreted as packaged for resale, and less than ½ ounce of marijuana. In
the middle of the front seat, a small plastic bag of off-white crystalline substance was
found which constituted just less than 2 grams of methamphetamine. A plastic pipe and
an aluminum boat pipe were found nearby. Ms. Gray was charged with possession of
these illegal substances and paraphernalia.
4.
Mr. Gray and Mr. Staggs identified Ms. Gray as the source of the currency
they used to make their purchases. Mr. Staggs said he was expected to get beer and
cigarettes also, but did not have enough currency left to make those purchases. Ms. Gray
denied that she gave the men money. She said that her money is separate from Mr.
Gray’s money. Ms. Gray possessed $276 on her person, which the detectives seized in
the belief that it was derived from the illegal resale of Lortab or pseudoephedrine. Ms.
Gray is unemployed and receives her disability check of $874 per month on the 3rd day of
the month. As this was the 1st day of the month, the detectives were convinced this
currency was not proceeds of a monthly disability payment. Ms. Gray said she had been
saving the money to pay her taxes. She did not explain why, if the money was meant to
be used to pay taxes, she was carrying it around with her. Alternatively or in addition,
Ms. Gray claimed she borrowed $513 in December from “Humboldt” in order to have
cash for holiday presents for her grandchild and to pay back taxes. She submitted as a
late exhibit a loan agreement document through World Finance Corporation which attests
that she financed the amount of $999.07 on December 3, 2010, of which $479.34 was
applied to her prior account and $519.73 was paid to her or paid on her behalf. Ms. Gray
testified that the bank teller was willing to tell police where the money in her possession
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had come from. She denied ever being in trouble before and claimed she would not drive
anyone to the store again if she could be held liable for what they did.
5.
Ms. Gray said that the vehicle is driven by many people, making the point
that any number of people might have left the drugs and paraphernalia found by the
officers, but she did not identify them. She explained that the vehicle belongs to her exfather-in-law, and that her ex-husband is blind and cannot drive. She said the elder Mr.
Gray would allow anyone to use the car. She denied knowing what Mr. Gray and Mr.
Staggs were doing when she drove them to their various destinations. She only saw
batteries among their purchases. She did not consider going to Kroger, CVS and WalMart redundant because they are different stores and sell a lot of different things. She
merely took them where they asked to go.
6.
Ms. Gray’s son has been arrested in the past for a violation involving
methamphetamines, but he was not living with her at the time. She denied knowing
much about methamphetamines or what the charges against him involved. Ms. Gray
admitted having used meth as a teenager, but denied current use or ever having sold
drugs. As she observed, “If so, I wouldn’t be borrowing money!”
7.
Ms. Gray personally takes about ten different medications for her heart,
high blood pressure, high sugar and back problems, including Lortabs by prescription.
Mr. Gray has a prescription for Lortabs also.
Ms. Gray pled guilty to charges of
possession and is currently on two years’ probation.
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8.
Ms. Gray has her own vehicle, but it was not running well at the time. She
went in it to get Mr. Gray’s father’s car to use because her vehicle needed repairs at the
time and was not reliable.
CONCLUSIONS OF LAW
1.
The State has the burden of proving, by a preponderance of the evidence,
that the seized currency 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.
§39-17-433
sets
forth
the
offense
of
“Promotion
Methamphetamine Manufacture.” It states:
(a) It is an offense for a person to promote methamphetamine manufacture.
A person promotes methamphetamine manufacture who:
(1)
Sells, purchases, acquires, or delivers any chemical,
drug ingredient, or apparatus that can be used to produce
methamphetamine, knowing that it will be used to produce
methamphetamine, or with reckless disregard of its
intended use;
(2)
Purchases or possesses more than nine (9) grams of an
immediate methamphetamine precursor to another person
with the intent to manufacture methamphetamine or deliver
the precursor to another person whom they know intends to
manufacture methamphetamine, or with reckless disregard of
the person’s intent; or
(3)
Permits a person to use any structure or real property
that the defendant owns or has control of, knowing that the
person intends to use the structure to manufacture
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of
methamphetamine, or with reckless disregard of the person’s
intent.
(b)
Expert testimony of a qualified law enforcement officer shall be
admissible to establish that a particular chemical, drug, ingredient, or
apparatus can be used to produce methamphetamine. For purposes of this
testimony, a rebuttable presumption is created that any commercially sold
product contains or contained the product that it is represented to contain on
its packaging or labels.
(c)
Possession of more than twenty (20) grams of an immediate
methamphetamine precursor shall be prima facie evidence of intent to
violate this section. This subsection (c) shall not apply to the following
persons or entities that lawfully possess drug products in the course of
legitimate business activities:
(1) A pharmacy or pharmacist licensed by the board of
pharmacy;
(2) A wholesale drug distributor...licensed by the board of
pharmacy;
(3) A manufacturer of drug products...licensed by the board
of pharmacy;
(4) A licensed health care professional possessing the drug
possessing the drug products in the course of carrying out the
health care provider’s profession.
(d)
For purposes of this section, “structure” means any house, apartment
building, shop, barn, warehouse, building, vessel, railroad car, cargo
container, motor vehicle, housecar, trailer, trailer coach, camper, mine,
floating home, watercraft, or any other structure capable of holding a
clandestine laboratory.
(e)
A violation of this section is a Class D felony.
3.
T.C.A. §39-17-435 states that the initiation of a process intended to result
in the manufacture of methamphetamine is a Class B felony, regardless of whether the
chemical process or reaction is complete, or that the process would not actually create
methamphetamine is completed.
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4.
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.”
5.
Pursuant to T. C. A. § 39-17-408, methamphetamine is a Schedule II
controlled substance.
6.
T.C.A. §53-11-451(a) sets forth that the following are subject to forfeiture:
(1) All controlled substances that have been manufactured, distributed,
dispensed or acquired in violation of part 3 of this chapter and this part, or
title 39, chapter 17, part 4;
(2) All raw materials, products and equipment of any kind that are used, or
intended for use, in manufacturing, compounding, processing, delivering,
importing or exporting any controlled substance in violation of part 3 of
this chapter and this part, or title 39, chapter 17, part 4;
(3) All property that is used, or intended for use, as a container for property
described in subdivision (a)(1) or (a)(2);
(4) All conveyances, including aircraft, vehicles or vessels that are used, or
are intended for use, to transport, or in any manner to facilitate the
transportation, sale or receipt of property described in subdivision (a)(1)
or (a)(2), but:
(A) No conveyance used by any person as a common carrier
in the transaction of business as a common carrier is subject
to forfeiture under this section, unless it appears that the
owner or other person in charge of the conveyance is a
consenting party or privy to a violation of part 3 of this
chapter and this part, or title 39, chapter 17, part 4;
(B) No conveyance is subject to forfeiture under this section
by reason of any act or omission established by the owner of
the conveyance to have been committed or omitted without
the owner's knowledge or consent;
(C) A conveyance is not subject to forfeiture for a violation of
§ 39-17-418(a) or (b) or § 39-17-425; and
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(D) A forfeiture of a conveyance encumbered by a bona fide
security interest is subject to the interest of the secured party
if the secured party neither had knowledge of nor consented
to the act or omission;
***
12.
Whether or not a criminal case is settled, dismissed, or not prosecuted has
little bearing on a civil forfeiture case, in which the State’s burden of proof is “the
preponderance of the evidence.”
13.
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. § 53-11201(f)(1). See also, Urquhart v. Department of Safety, 2008 WL 2019458 (Tenn. Ct.
App. 2008). The same reasoning applies when currency is at issue.
14.
The officers took $275 in currency from Ms. Gray on the basis that the
purchase by her two male companions of a quantity of pseudoephedrine with cash one of
them claimed came from her and the presence of Lortab pills and other drugs in the
vehicle she was driving led them to suspect that the currency in her possession was
received from the illegal sale of drugs. Neither Mr. Gray nor Mr. Staggs attended the
hearing. Detective Zaiden reported the hearsay testimony that Mr. Staggs claimed the
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currency he used for his purchases came from Ms. Gray, but Mr. Staggs’ credibility
cannot be determined here because he was not present. Ms. Gray, the Claimant for the
seized currency, was not only present, but was a credible witness. Unlike the two men,
she had two legitimate sources of currency, her monthly disability checks and a
documented loan. She was not observed making any of the purchases. She claimed not
to know what items the men were purchasing, and was convincing when she said that
their three destinations, Wal-Mart, CVS and Home Depot, did not appear duplicative or
suspicious to her. The terms of the loan she entered into are sufficiently onerous that it
does not seem likely that she would have borrowed the money on those terms if she was
making an income selling drugs. The vehicle did not belong to her, and was driven by
other people as well, so the inference that things found in the vehicle were hers because
she was driving is a weak inference. She did not admit the drugs and paraphernalia were
hers, there was no evidence other than their presence in a vehicle belonging to someone
else that she happened to be driving to associate them with her. It is as likely or more
likely that the drugs belonged to her ex-husband, his father or friends of his father who
also use the vehicle. Furthermore, Claimant denied any participation in the use or sale of
illegal drugs, and there was no evidence, other than propinquity to the drugs found in
someone else’s vehicle, with which to associate her with drug trafficking. It is noted that
there is no mention in this record of whether any action was taken against the vehicle or
the vehicle’s owner.
15.
There was no proof offered to show that Claimant knew or should have
known the two men were purchasing suspicious amounts of pseudoephedrine other than
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the detective’s report of Mr. Stagg’s statement. Since Mr. Staggs was not present, and
Claimant persuasively denied Detective Zaidan’s allegation that Staggs implicated her,
Mr. Staggs’ reputed self-serving statement is neither reliable nor convincing. If it is
possible to prove the null hypothesis, the Claimant has met her burden to show that she
did not have reason to know that the money in her possession that was seized from her
was intended to be used in a manner that violates the Tennessee drug laws. She had the
money in her possession, did not make any of the questionable purchases, and
convincingly denied both participating in any drug sales and providing any money to
assist others to violate the law. She qualifies as an innocent owner of the currency taken
from her.
16.
The State has failed to meet its burden of proof in this case. There is not a
preponderance of evidence to show that Ms. Gray knew the two men were purchasing
unusual amounts of pseudoephedrine, and there is only the presence of a small quantity
of drugs in the vehicle she and the two men were using to associate her with drugs.
There is no evidence that makes it more likely the drugs found belonged to her than to
either of the other occupants.
There is no evidence other than the existence of
unattributed drugs in the car and the reputed statement by the absent Mr. Staggs to
associate any money she possessed or might have shared with the two men with any drug
dealings. There is no evidence that she knew what purchases the men were making.
17.
The State failed to show by a preponderance of the evidence that claimant’s
currency was derived from or intended to be used to facilitate a violation of drug laws.
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Accordingly, it is ORDERED that the seized currency be RETURNED to the
Claimant.
It is so ordered.
This Order entered and effective this 25 day of October, 2011 Robertson
Administrative Judge
Filed in the Administrative Procedures Division, Office of the Secretary of State, this 25
day of October, 2011
Thomas G. Stovall, Director
Administrative Procedures Division
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