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Tennessee Department of State, Opinions from the
Administrative Procedures Division
Law
12-2-2008
DEPARTMENT OF SAFETY vs. Four Thousand
Nine Hundred, Eighty Two Dollars, In U.S.
Currency, Claimed by: Eric Sensat, Seizure Date: 2/
11/08, Seized from: Eric Sensat
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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
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]
BEFORE THE COMMISSIONER OF THE
TENNESSEE DEPARTMENT OF SAFETY
IN THE MATTER OF:
DEPARTMENT OF SAFETY
v.
Four Thousand Nine Hundred
Eighty Two Dollars
In U.S. Currency
Claimed by: Eric Sensat
Seizure Date: 2/11/08
Seized from: Eric Sensat
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DOCKET NO. 19.01-100573J
DOS Case No. H1126
INITIAL ORDER
This matter was heard on December 2, 2008, in Lawrenceburg, Tennessee before
Marion P. Wall, Administrative Law Judge, assigned by the Secretary of State, Administrative
Procedures Division, and sitting for the Commissioner of the Tennessee Department of Safety.
Mr. Orvil Orr, attorney for the Department of Safety, represented the State. Claimant was
represented by Mr. John S. Colley, III, of the Columbia Bar.
The issue in this contested case is whether the four thousand nine hundred eighty two
dollars ($4,982.00) seized from Eric Sensat on February 11, 2008, is subject to forfeiture. After
consideration of the entire record and the argument of counsel, it is determined that the seized
property should be RETURNED to the Claimant.
This conclusion is based on the following Findings of Fact and Conclusions of Law:
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FINDINGS OF FACT
1.
On February 11, 2008, Officer David Stanfill of the Maury County Sheriff’s
Department Drug Unit made an undercover purchase of marijuana from the Claimant, Eric
Sensat. He purchased approximately 13.5 pounds of marijuana from the Claimant. Upon his
arrest, the seized currency was found in Mr. Sensat’s pants pocket. Some 23.6 additional pounds
of marijuana was found in Claimant’s truck. Considering the pauper’s affidavit filed by Mr.
Sensat to initiate this contested case, the undersigned has little difficulty in finding that the
seized currency most likely represented the proceeds of drug sales. In fact, given that this was
the third buy made from the Claimant, the conclusion that the seized currency represents drug
proceeds is almost inescapable.
2.
Officer Stanfill did not give Mr. Sensat a seizure form until some eight days after
the actual seizure of the money, on February 19, 2008. He had the forms with him at the time of
arrest, but failed to provide Mr. Sensat with the statutorily required notice. There was no reason
given for this delay.
3.
On February 21, 2008, Officer Stanfill executed an affidavit in support of a
forfeiture warrant. In this affidavit, Officer Stanfill noted the undercover purchase of the 13.5
pounds of marijuana, as well as the other marijuana found in his vehicle. It noted the other buys,
as well.
4.
A forfeiture warrant was issued on February 21, 2008, the same date as the
affidavit. The warrant finds probable cause to believe that the money represented drug proceeds.
It had a box checked for an Extension Order, reciting that “based on the Officer’s sworn
statements as to extraordinary circumstances justifying exception to the ‘five (5) working days
requirement’, I grant up to ten (10) additional days thru 2/29/08 to seek a Forfeiture Warrant.”
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5.
The warrant and affidavit were issued ten days after the actual seizure in this
matter. The seizure occurred on Monday, February 11th. Officer Stanfill testified that the judge
who signed the warrant was away attending a conference from February 13th through the 15th
(Wednesday through Friday). February 18th, the following Monday, was not a working day,
being President’s day. Thus, it could be said that the warrant was sought on the fourth working
day for the particular judge from the date of seizure, by excluding Wednesday through Monday.
6.
There were three other full time General Sessions judges available to Officer
Stanfill during this time, as well as four full time Circuit Court Judges. Many of these judges
were actually closer than the one Officer Stanfill wanted to use. Officer Stanfill stated that he
uses this judge because this judge records the proceedings.
Considering that the only
requirement of the statute is that the proceedings are tape recorded, this contention is, at best,
unconvincing. The undersigned is quite sure that Maury County judges other than the one who
issued the warrant have access to tape recorders.
7.
The forfeiture warrant was therefore issued five days past the time the statute
requires, and five days past the time for the issuance of an extension order. Given the fact that
the affidavit must be accompanied by a copy of the notice of seizure, the warrant could not have
been sought any earlier than eight days after the initial seizure, a period of some six working
days after the seizure. As it was, the warrant issued eight working days after the seizure.
STATUTORY PROVISIONS
1.
TCA §53-11-451 provides in pertinent part:
(a)
The following are subject to forfeiture:
(6)(A) 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, as
amended, compiled in parts 3 and 4 of this chapter and title 39, chapter 17, part 4, all
proceeds traceable to such an exchange, and all moneys, negotiable instruments, and
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securities used, or intended to be used, to facilitate any violation of the Tennessee Drug
Control Act, compiled in parts 3 and 4 of this chapter and title 39, chapter 17, part 4;
(b) Property subject to forfeiture under parts 3 and 4 of this chapter or title 39,
chapter 17, part 4, may be seized by the director of the Tennessee bureau of
investigation or the director's authorized representative, agent or employee, the
commissioner of safety or the commissioner's authorized representative, agent or
employee, or a sheriff, deputy sheriff, municipal law enforcement officer or
constable upon process issued by any circuit or criminal court having jurisdiction
over the property. Seizure without process may be made if:
(1) The seizure is incident to an arrest or a search under a search warrant or an
inspection under an administrative inspection warrant;
(2) The property subject to seizure has been the subject of a prior judgment in
favor of the state in a criminal injunction or forfeiture proceeding based
upon parts 3 and 4 of this chapter or title 39, chapter 17, part 4;
(3) The director or the director's authorized representative, agent or employee,
the commissioner or the commissioner's authorized representative, agent
or employee, or a sheriff, deputy sheriff, municipal law enforcement
officer, or constable has probable cause to believe that the property is
directly or indirectly dangerous to health or safety; or
(4) The director or the director's authorized representative, agent or employee,
the commissioner or the commissioner's authorized representative, agent
or employee, or a sheriff, deputy sheriff, municipal law enforcement
officer, or constable has probable cause to believe that the property was
used or is intended to be used in violation of parts 3 and 4 of this chapter
or title 39, chapter 17, part 4.
2.
TCA 40-33-204 provides: Forfeiture warrant. —
(a) Once personal property is seized pursuant to an applicable provision of law, no
forfeiture action shall proceed unless a forfeiture warrant is issued in accordance with
this section by a general sessions, circuit, criminal court or popularly elected city judge.
The forfeiture warrant shall authorize the institution of a forfeiture proceeding under this
part. As used in this subsection (a), “popularly elected city judge” means a licensed
attorney who is elected to the office of city judge pursuant to title 16, chapter 18, part 2.
(b) The officer making the seizure shall apply for a forfeiture warrant by filing a sworn
affidavit within five (5) working days following the property seizure. The forfeiture
warrant shall be based upon proof by affidavit and shall have attached to it a copy of the
notice of seizure. The hearing on the application for a forfeiture warrant shall be ex parte
and shall be recorded. It is the duty of the court to maintain the recording. Certified
copies of the proceeding shall be made available to any party requesting them, and the
same shall be admissible as evidence. The affidavit in support of a forfeiture warrant
shall be sworn to and state the following:
(1) The legal and factual basis making the property subject to forfeiture;
(2) If the owner or co-owner of the property was not the person in possession of
the property at the time of seizure and can be determined from public records of
titles, registrations or other recorded documents, the affidavit shall state with
particular specificity the officer's probable cause for believing that the owner or
co-owner of the property knew that the property was of a nature making its
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possession illegal or was being used in a manner making it subject to forfeiture as
well as the legal, and factual basis for forfeiture of the interest; and
(3) If the interest of a secured party with a duly perfected security interest as
reflected in the public records of titles, registrations or other recorded documents,
is sought to be forfeited, the affidavit shall state with particular specificity the
officer's probable cause that the secured party's interest in the property is
nevertheless subject to forfeiture as well as the legal and factual basis for
forfeiture of the interest.
(c) (1) The judge shall issue the forfeiture warrant if the judge finds that the
offered proof establishes probable cause to believe that:
(A) The property is subject to forfeiture; and
(B) If the property is owned by one whose interest is described in public records
of titles, registrations or other recorded documents, that the owner's interest is
subject to forfeiture under the applicable provision of law.
(2) If the seizing officer asserts to the judge that the officer was unable to determine
the owner of the seized property or whether the owner's interest is subject to
forfeiture within the required five-day period, the judge may grant up to ten (10)
additional days to seek a forfeiture warrant if the judge finds that the seizing officer
has:
(A) Exercised due diligence and good faith in attempting to determine the
owner of the property or whether the owner's interest is subject to
forfeiture; and
(B) Made a factual showing that because of the existence of extraordinary
and unusual circumstances an exception to the five-day forfeiture warrant
requirement is justified.
(3) General sessions judges may authorize magistrates or judicial commissioners
to issue forfeiture warrants. Prior to the authorization, the judges shall train and
certify that the magistrates or judicial commissioners understand the procedure
and requirements relative to the issuance of a forfeiture warrant.
(d) 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 judge may
consider other indicia of ownership that proves that the possessor is nonetheless an owner
of the property. Other indicia of ownership shall include, but is not limited to, the
following:
(1) How the parties involved regarded ownership of the property in question;
(2) The intentions of the parties relative to ownership of the property;
(3) Who was responsible for originally purchasing the property;
(4) Who pays any insurance, license or fees required to possess or operate the
property;
(5) Who maintains and repairs the property;
(6) Who uses or operates the property;
(7) Who has access to use of the property; and
(8) Who acts as if they have a proprietary interest in the property.
(e) If the owner or co-owner of the property was not the person in possession of the
property at the time of the seizure and can be determined from public records of titles,
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registrations or other recorded documents, the judge shall put the seizing officer under
oath and ask the following questions:
(1) What is the officer's probable cause that the owner or co-owner of the
property knew that the property was of a nature making its possession illegal or
was being used in a manner making it subject to forfeiture;
(2) What is the officer's probable cause that the co-owner or co-owners who are
not in possession of the property at the time it was seized were co-conspirators to
the activity making the property subject to forfeiture; and
(3) Any other questions necessary to determine the legal and factual basis for
forfeiture.
(f) If a secured party's interest is sought to be forfeited, the judge shall put the seizing
officer under oath and ask the following questions:
(1) What is the officer's probable cause that the secured party is a co-conspirator
to the activity making the property subject to forfeiture;
(2) Did the secured party at the time the interest attached, have actual knowledge
of the intended illegal use of the property; and
(3) Any other question deemed necessary to determine the legal and factual basis
for forfeiture of the secured party's interest.
(g) Upon issuance of the forfeiture warrant, the judge shall retain the affidavit relied
upon in support of the warrant and the officer shall, within seven (7) working days, send
the warrant, a copy of the affidavit and the notice of seizure to the applicable agency. By
signing and issuing the forfeiture warrant, the judge is affirming that the required finding
of probable cause necessary to issue the warrant has been made. Upon receipt of the
documents, the applicable agency shall notify any other owner, as may be determined
from public records of titles, registrations or other recorded documents, or secured party
that a forfeiture warrant has been issued. Upon receipt of the notice of seizure and
forfeiture warrant and after interviewing any witnesses, the applicable agency shall
release the property if there is no legal and factual basis for forfeiture. The seizing agency
shall maintain a copy of the notice of seizure for all property seized at its main office and
the notices and receipts shall be public records.
(h) If no forfeiture warrant is issued, and the property is not needed for evidence in a
criminal proceeding, the seizing agency shall immediately return the property to the
owner, as determined from public records of titles, registrations or other recorded
documents, or if the owner cannot be determined, to the person in possession of the
property at the time of seizure.
(i) Upon the request of any general sessions, circuit, criminal court or popularly elected
city judge, the administrative office of the courts shall provide a cassette tape recorder for
the purpose of recording the hearing on the application for a forfeiture warrant. As used
in this subsection (i), “popularly elected city judge” means a licensed attorney who is
elected to the office of city judge pursuant to title 16, chapter 18, part 2.
3.
TCA §40-33-201 provides that all personal property seized under the provisions
of TCA § 53-11-451 shall be seized and forfeited in accordance with the procedure of that part.
(emphasis supplied)
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ANALYSIS AND CONCLUSIONS OF LAW
Claimant seeks the return of the property for failure to comply with the statutory
requirements relating to the forfeiture warrant. It is clear that the provisions of the statute
regarding forfeiture warrants were not complied with.
Firstly, the warrant was not sought within five working days. The fact that the judge
preferred by Officer Stanfill was not available during part of this time 1 does not excuse the
failure to obtain the warrant from one of the other seven judges who were available. Thus, the
warrant was not timely obtained.
Although the judge signed an extension order, it is of no avail. The statute allows an
extension order to issue if the officer “asserts to the judge that the officer was unable to
determine the owner of the seized property or whether the owner's interest is subject to forfeiture
within the required five-day period.” T.C.A. 40-33-204(c) (2). Here, there was no doubt as to
the owner. The owner was the man from whose pants pocket the officer had removed the money
after purchasing over 13 pounds of marijuana from him, and to whom the officer later gave the
notice of seizure before seeking the forfeiture warrant. In short, the warrant was not timely
sought, and there was no justification, statutory or factual, for the delay.
Finding that the forfeiture warrant was not obtained as required by the statute, the
question becomes what remedy there is for this defect. In Ross v. Green, Docket No. 96-2779-II
(Chancery Court for Davidson County, Opinion filed 2/12/97), the Administrative Law Judge
determined that the affidavit in support of the forfeiture warrant was deficient and did not
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support the issuance of the warrant, and ordered the property returned. Dept. of Safety v.
Charles A. Ross, Docket No. 19.01-56-0714J, (Initial Order entered 4/23/96). Upon appeal to
the Commissioner of the Department of Safety, the Commissioner issued a Final Order finding
that there was no provision for administrative or judicial review of the forfeiture warrant, and
denied the Motion to Dismiss previously granted by the Administrative Law Judge.
This
decision was appealed to Chancery Court, which, in the opinion cited above, did review the
issuance of the forfeiture warrant, finding that it was properly issued upon an adequate finding of
probable cause. Thus, it is concluded that the issuance of the forfeiture warrant is reviewable 2 .
Other cases likewise have turned on a determination of whether the forfeiture warrant is
valid. In Woodward v. Green, Docket No. 99-3713-III (Davidson Chancery Court, Opinion filed
5/11/01), the Court considered whether an error in the forfeiture warrant mandated the return of
the property at issue. The ALJ had found the warrant was untimely issued, and ordered a return
of the property. The Commissioner reviewed the warrant and reversed, finding that the warrant
was, in fact, timely issued. The Court reviewed that determination, and found that substantial
and material evidence supported the Commissioner’s decision that the warrant was timely
issued. There would be little point in the inquiry in Ross or Woodward were there no remedy for
an invalid warrant.
Since there is a right to a forfeiture warrant to institute a forfeiture
1
Although it is noted that had the Claimant been given a notice of seizure on the day of the seizure the judge would
have been available.
2
TCA § 39-11-708(b) provides that defective forfeiture warrants do not constitute grounds for dismissal of a
complaint for forfeiture filed under the judicial forfeiture statute. Forfeitures under the judicial forfeiture statute use
a completely different procedure involving a complaint and answer in the Circuit, Chancery, or General Sessions
courts. The statutes governing forfeitures under the administrative forfeiture procedure use a different procedure,
and notably lack the provision that a defective warrant does not result in dismissal of the action. Conversely, the
judicial forfeiture statute does not contain the provision that no forfeiture action can proceed unless a forfeiture
warrant is issued in accordance with the statute. Likely, this difference explains the Chancery Court decision to
review the warrant at issue in Ross.
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proceeding, there must be a remedy when that right is violated, at least absent some statutory
provision excusing it, as in the judicial forfeiture statutes.
Having determined that the issuance of the warrant is reviewable and having further
determined that the issuance of the warrant in this matter was not in compliance with the statute,
the question becomes the proper remedy. It is a legal truism that where there is a right there is a
remedy. A forfeiture is quasi criminal in nature. Forfeitures are not favored in the law, and
forfeiture statutes must be strictly construed. Goldsmith v. Roberts, 622 S.W.2d 438 (Tenn.
1981). Here, there is a failure to comply with the mandatory requirements of the procedures
used to institute a forfeiture proceeding. The statute provides that forfeiture proceedings “shall”
be conducted in accordance with the procedure set out. This one was not. It further provides
that “no forfeiture action shall proceed unless a forfeiture warrant is issued in accordance with
this section.” Thus, by the words of the statute, this action cannot proceed.3 Therefore, return of
the property is the appropriate remedy 4 for the defective forfeiture warrant, at least in this case.
This Initial Order entered and effective this 10th day of February, 2009.
_________________________________
Marion P. Wall
Administrative Judge
Filed in the Administrative Procedures Division, Office of the Secretary of State, this 10th day of
February, 2009.
3
The State argues that the requirements of the statute are merely directory. In other statutes where language has
been held to be directory, the statute made no provision about the action not being maintained. See, e.g. Garrett v.
Dept. of Safety, 717 S.W.2d 290 (Tenn. 1986).
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It is noted that the statute provides that after seizure of property where no forfeiture warrant is issued the property
shall immediately be returned to the owner of record. TCA § 40-33-204(h).
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__________________________________
Thomas G. Stovall, Director
Administrative Procedures Division
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