University of Tennessee, Knoxville Trace: Tennessee Research and Creative Exchange Tennessee Department of State, Opinions from the Administrative Procedures Division Law 11-10-2008 TENNESSEE DEPARTMENT OF SAFETY, Department of Safety Cases No. H2996 and H3370, vs. 1987 OLDS CUTLASS1, VIN #1G3GK11Y3HR313392, and, FORD CONTOUR2, VIN #1FAFP6534XK141444 and $1387.00 in U.S. CURRENCY3, other property outlined below, SEIZED FROM: JOHN AND NAGOYA, HOOSIER, SEIZURE DATE: APRIL 24, 2008, CLAIMANTS: JOHN HOOSIER, and NAGOYA HOOSIER, 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. ) ) 1987 OLDS CUTLASS 1 ) VIN #1G3GK11Y3HR313392, and ) FORD CONTOUR 2 ) VIN #1FAFP6534XK141444, ) and $1387.00 in U.S. CURRENCY 3 ) other property outlined below ) SEIZED FROM: JOHN AND NAGOYA ) HOOSIER ) SEIZURE DATE: APRIL 24, 2008 ) CLAIMANTS: JOHN HOOSIER ) and NAGOYA HOOSIER ) LIENHOLDER: n/a ) ) Docket No. 19.01-100982J ) ) Department of Safety ) Cases No. H2996 and H3370 ) AMENDED INITIAL ORDER This matter came on to be heard on November 10, 2008 in Nashville Tennessee before Joyce Grimes Safley, Administrative Judge, assigned by the Secretary of State, and sitting for the Commissioner of the Tennessee Department of Safety. Mr. Orvil Orr, attorney for the Department of Safety, represented the State. Claimants John Hoosier and Nagoya Hoosier were present at the hearing and represented themselves pro se. 1 Claimants for the 1987 Olds Cutlass are John and Nagoya Hoosier. 2 Claimant for the Ford Contour vehicle is Nagoya Hoosier. 3 Claimants for the $1387 in U.S. Currency and other property are John and Nagoya Hoosier.
The Initial Order in this matter was issued on February 10, 2007. The State s Motion to Correct Initial Order is GRANTED, and this amended order is issued to correct the date of seizure in the style of the case. The subject of this hearing was the proposed forfeiture of 1987 OLDS CUTLASS automobile, VIN #1G3GK11Y3HR313392, a FORD CONTOUR automobile, VIN #1FAFP6534XK141444, $1387.00 in U.S. CURRENCY, and other property: 1 Techwood Stereo receiver, 1 Kenwood 5 disc changer, 3 large box speakers, 1 Compac computer (Presario), Lexmark color printer, Scarface picture, and1 Digital Camera 8 video. Said vehicles, currency and property was seized for the seized property 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). After consideration of the evidence offered, the arguments of counsel and the Claimant, and the entire record in this matter, it is ORDERED that the seized vehicles and the seized currency be immediately FORFEITED to the seizing agency. The other property, excluding the Compac computer and Lexmark printer, are also FORFEITED. The Compac computer and the Lexmark printer shall not be forfeited. This decision is based upon the following Findings of Fact and Conclusions of Law. FINDINGS OF FACT 1. Agent David O Dell, of the Clarksville, Tennessee Police Department, testified that on April 24, 2008 he and other law enforcement 2
officers executed a narcotics search warrant at the residence of John and Nagoya Hoosier, in Clarksville, Tennessee. 2. The search warrant was issued based upon the information obtained from approximately a year s investigation into illegal drug sales by Claimant John Hoosier. 3. On May 4, 2007 a confidential informant working with the Clarksville Police Department made a purchase of approximately one pound of marijuana from Claimant John Hoosier. 4. The State TBI lab confirmed that the substance purchased by the confidential informant was 424.7 grams of marijuana. 5. On May 11, 2007 the confidential informant made another drug purchase from Claimant John Hoosier. The lab results confirmed that the substance purchased from Claimant Hoosier was 213 grams of marijuana. 6. On May 31, 2007 the confidential informant purchased 364.3 grams of marijuana from Mr. Hoosier. The substance was confirmed by the lab testing and results. 7. On June 15, 2007, the confidential informant working with the Clarksville Police Department made a purchase of 430.7 grams of marijuana from Claimant John Hoosier. 8. On December 13, 2007, the Clarksville Police Department s confidential informant purchased 53.8 grams of marijuana from Claimant John Hoosier. 3
9. On April 21, 2008, the confidential informant made a purchase of marijuana from Claimant John Hoosier in the amount of 23.5 grams of marijuana. 10. Following the confidential informant s drug buys from Claimant John Hoosier, a search warrant was issued and executed on April 24, 2008. 11. Based upon Claimant Hoosier s history of selling illegal drugs and the fact that he had no visible means of income, Agent David O Dell testified that he and the other officers seized certain property from Claimants residence. 12. Agent O Dell testified that the 1987 Cutlass was actually used in at least one of the confidential informant s marijuana purchases. His testimony was deemed credible. 13. The titled owner of the 1987 Cutlass is Rashonda Hoosier, a relative of Claimant John Hoosier. 14. The Ford Contour vehicle was also seized because Claimant Nagoya Hoosier used the Contour on April 23, 2008 to transport 23.5 grams of marijuana to the drug deal with the confidential informant. 15. Claimants maintained they ran a catering business out of their home. However, Agent O Dell testified that he and the other agents found no receipts showing that Claimants were making a living as a catering business. The agents did note some aprons and cooking ware present at the residence. There were also pamphlets advertising a catering business. 4
16. The agents executing the search warrant found a small misdemeanor amount of marijuana (approximately seven grams) at the residence. 17. Agent O Dell noted that several of the drug deals were conducted out of the Claimants residence. 18. The 1987 Cutlass was registered to Claimant John Hoosier s sister, Rashonda Hoosier. 19. Agent O Dell testified that the 1987 Cutlass was parked at Claimant John Hoosier s house on multiple occasions, Claimant John Hoosier was observed driving the vehicle on multiple occasions, and he used it to conduct a drug transaction. 20. Rashonda Hoosier did not file a claim for the seized 1987 Cutlass. However, Claimant John Hoosier did file a claim for the 1987 Cutlass. 21. Claimant Nagoya Hoosier filed an Affidavit of Indigency in which she stated that her husband, John Hoosier, Jr., had a monthly income of 0 (zero). Ms. Hoosier declared, under penalty of perjury, that her answers to the affidavit of indigency were true, correct, and complete. Ms. Hoosier did not mention a catering business on her affidavit of indigency. 22. Claimant Nagoya Hoosier s statements that her husband, Claimant John Hoosier, had zero income, conflicts with her and her husband s testimony at the hearing that they made money from a catering business. 5
23. Claimant John Hoosier also filed an Affidavit of Indigency in which he stated that he had a monthly income of 0 (zero). Mr. Hoosier declared, under penalty of perjury, that his answers to the affidavit of indigency were true, correct, and complete. Mr. Hoosier did not mention a catering business on his affidavit of indigency. 24. The agents executing the search warrant on April 24, 2008 found the green plant material in a jacket hanging in the closet. 25. Claimant John Hoosier testified that his wife s father bought the computer for Claimant s children for Christmas. Claimant Hoosier s testimony is deemed credible regarding the purchase of the computer. 26. Claimant John Hoosier admitted that he had previously been convicted of marijuana possession and possession of marijuana for resale. 27. Mr. Hoosier did not deny that he sold marijuana on May 4, 2007, May 11, 2007, May 31, 2007, or May 15, 2007. He stated that he could not remember. He gave the same answer with regard to selling marijuana on December 13, 2007 and April 21, 2008. 28. Claimant Nagoya Hoosier did not deny that she had delivered illegal drugs in her Ford vehicle. She stated, I don t recall. 29. Neither of the Claimants testimony was credible that they did not remember or recall whether or not they made drug sales. CONCLUSIONS OF LAW 1. The State has the burden of proving, by a preponderance of the evidence, that the seized currency and property was subject to forfeiture 6
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)(6)(A) authorizes the forfeiture of everything of value furnished, or intended to be furnished in exchange for controlled substance, all proceeds traceable to such an exchange, and all moneys, negotiable instruments, and securities used, or intended to be used, to facilitate any violation of the Tennessee Drug Control Act. 3. 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. (Emphasis added.) 4. 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). 5. 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 7
substances were possessed with the purpose of selling or otherwise dispensing. 6. In the case of the Claimants, credible, u testimony was given that both Claimants made drug sales from their vehicles. 7. Both claimants filed affidavits of indigency. Claimant John Hoosier reported zero income. Claimant Nagoya Hoosier stated that she had zero income at the time she completed the affidavit of indigency due to school being out for the summer. Neither of the claimants mentioned income from a catering business on their affidavits of indigency. 8. 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. 9. 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. 10. Claimants sold marijuana to a confidential informant on several occasions. Claimants used the above referenced vehicles to deliver marijuana for sale. 8
11. Claimant John Hoosier cannot avoid forfeiture of his 1987 Olds Cutlass and state that he is not the owner, when he filed the claim for the vehicle, and his sister, Rashonda Hoosier did not file a claim. 12. There was no evidence presented that Claimant John Hoosier was employed or had any kind of legitimate, regular income. No income tax return or other evidence of a source of income was filed on Mr. Hoosier s behalf. The evidence preponderates that the currency found on Claimant s person was proceeds from drug sales. 13. 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 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 large-scale 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). 14. In this matter, Claimants currency was found in Claimants residence, the Claimant was unemployed, the Claimants did not deny that they had sold marijuana, and coolers with marijuana residue were found. 15. 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
16. 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. 53-11-201(f)(1). See also, Urquhart v. Department of Safety, 2008 WL 2019458 (Tenn.Ct.App. 2008). 17. The State presented a prima facie case for forfeiture of both the vehicle and the currency in this matter. 18. The State has met its burden of proof in this case. Claimants were transporting and delivering marijuana for the purpose of drug sales. Given all the evidence and circumstances surrounding Claimants arrest, it is more probable than not that the currency seized from Claimants was currency received in exchange for controlled substances or was intended to purchase controlled substances. In short, the currency recovered was used to violate the Tennessee Drug Control Act or was intended to violate the same. The State has met its burden of proof in this matter. The seized property, with the exception of the computer, is subject to forfeiture. The testimony given by the Claimants that the seized computer and printer was a Christmas present from their grandfather to Claimants children is deemed credible. The computer and printer shall be returned, forthwith, to Claimants. 10
Accordingly, it is ORDERED that the Claimants property (the vehicles, currency, and miscellaneous property listed above) shall be immediately FORFEITED to the seizing agency, with the exception of the Computer and priter, which shall be returned to Claimants. It is so ordered. This Order entered and effective this 10th day of February, 2009. Thomas G. Stovall, Director Administrative Procedures Division 11