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Tennessee Department of State, Opinions from the
Administrative Procedures Division
7-7-2010
TENNESSEE DEPARTMENT OF SAFETY vs.
$3300 in U.S. CURRENCY and Miscellaneous
Property see listed below, SEIZED FROM:
DONALD REEDER, SEIZURE DATE: APRIL
16, 2009 CLAIMANT: DONALD REEDER
LIENHOLDER: 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,
v.
$3300 in U.S. CURRENCY and
Miscellaneous Property (see listed below)
SEIZED FROM: DONALD REEDER
SEIZURE DATE: APRIL 16, 2009
CLAIMANT: DONALD REEDER
LIENHOLDER: n/a
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) Docket No. 19.01-108637J
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Department of Safety
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Case No. J337
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INITIAL ORDER
This matter came on to be heard on July 7, 2010 in Cookeville,
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. Claimant Donald Reeder was not present at the hearing
but was represented by Mr. Frank Lannom, attorney, of the Wilson County
Bar.
The subject of this hearing was the proposed forfeiture of $3300 in U.S.
currency, and the following property:
Barrell Saddle bag; three motorcycle
helmets; motorcycle seat with backrest; Snap-On Toolbox (bottom); Craftsman
Top Box; Kennedy Top Box; Mac Top Box; Dewalt Saw Kit Reciprocating Saw;
Hosovarna 650rtt Ready Heater; 5000 lb. jack; Poulan Pro 722 Chainsaw;
Samsung 32” LCD flat pane television; Lincoln Mig Welder and Cart; Welders
Coat and Masks; Brute Air Compressor (10 gallon, Serial #1453200); Lincoln
Arc Welder (Serial # 9422-911); Motorist 10” Buffer; two dirt bike tires; John
Deere Tractor with Front End Loader; and a Suzuki Motocross Dirt Bike (VIN
#15A6T2100944)
for the seized currency’s and 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.
The transcript of this contested case was filed on August 13, 2010,
making the Initial Order in this matter due on or before November 13, 2010.
Accordingly, the matter is ripe for consideration.
After consideration of the evidence offered, the arguments of counsel,
and the entire record in this matter, it is ORDERED that the seized vehicle and
above listed property 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.
Detective Vance Walker of the Cannon County, Tennessee Sheriff’s
Office testified on behalf of the State.
2.
Since February, 2007, multiple marijuana purchases have been
made by undercover confidential informants from Claimant Donald Reeder.
3.
Confidential Informants were given money and sent to Claimant
Reeder’s home to make marijuana “buys” from him.
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4.
On May 22, 2008, Claimant Donald Reeder was arrested for
possession of controlled substances and narcotics sales.
5.
Thereafter a search warrant was executed at Claimant Reeder’s
residence.
6.
The search conducted pursuant to the search warrant discovered a
large quantity of marijuana (approximately nine pounds) under the wheel well
of a Titan motorcycle in Claimant Reeder’s garage.
7.
When Claimant was interviewed by the Sheriff’s Department, he
told the officers that he was employed as a “carpenter” and only earned around
$15,000.00 annually.
8.
On April 16, 2009, another search warrant was executed at
Claimant Reeder’s home by the Cannon County Sheriff’s Department and the
Warren County Sheriff’s Department.
9.
During the search, officers found a large quantity of marijuana,
some of which was packaged for resale.
10.
Numerous military ammunition containers were found which had
been buried on Claimant Reeder’s property. The containers had the odor of
marijuana and contained ziplock baggies.
11.
Other ammunition containers were found on the Reeder property,
buried near a large brick of marijuana which had been buried.
12.
Officers executing the search warrant found nineteen pounds of
marijuana on Claimant Reeder’s property during the April 16, 2009 search,
along with stolen firearms.
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13.
Claimant Reeder was arrested for a second time on April 16, 2009
and charged the sale of illegal drugs.
14.
After Claimant Reeder was arrested and incarcerated in 2008,
Detective Walker began monitoring Claimant Reeder’s telephone calls which
Claimant made from the jail.
15.
Claimant Reeder made numerous calls to his brother, Forest
Reeder.
16.
During one such a telephone call on January 22, 2009, Forrest
Reeder told his brother, Claimant Reeder, that “he walked around until he
heard it rattle”. Claimant Reeder then told his brother to “be careful what you
say, because they are listening to us.”
17.
Forrest Reeder continued talking with Claimant, and told
Claimant that “he got it” and “put it in the safety deposit box.”
18.
Based upon Claimant and his brother’s telephone conversation,
the Sheriff’s Department obtained a search warrant for Forrest Reeder’s safety
deposit box at Liberty State Bank in Smithville, Tennessee. $48,000 cash was
discovered in the safety deposit box.
19.
Sometime after Claimant Reeder’s second arrest, on April 27,
2009, Claimant Reeder told his son during a telephone conversation that “there
is a hundred down in the corners where the cows feed.” He also told his son to
“make sure everything is dry.”
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20.
Thereafter, the Sheriff’s Department executed a search warrant
and searched a small shed on Claimant Reeder’s property which was behind a
barn where Reeder’s cows were being fed.
21.
Deputies found marijuana and digital scales, along with drug
paraphernalia, buried in the far left corner of the shed.
22.
Reeder.
Claimant Donald Reeder talked with another brother, Danny
Danny Reeder admitted to Sheriff’s Department deputies that the
“four-wheeler” discussed actually belonged to Claimant Donald Reeder, but it
was titled in Danny Reeder’s name to keep it from being seized and subject to
forfeiture 1. Danny Reeder also admitted that the box trailer was titled to him
rather than the Claimant for the same reason.
23.
During a search pursuant to a search warrant of Claimant Donald
Reeder’s house, a package of marijuana and case was found in the bedroom
used by Nick Reeder, Claimant’s son.
24.
Thereafter, during a monitored telephone conversation, Claimant
and his brother, Forrest Reeder, discussed Forrest Reeder warning “Nick”
about “having more than a ‘smoke bag” with him”, and the large quantity of
currency which was found.
25.
Claimant Donald Reeder stated to the Sheriff’s Department
deputies that he made $15,000 annually.
26.
The forensic chemistry reports revealed that the seized substances
suspected to be marijuana were tested and were determined to be marijuana.
1
The “four wheeler” was actually returned to Danny Reeder.
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27.
Claimant was not present at the hearing, and did not offer
testimony via telephone or deposition. No one testified in Claimant’s behalf.
28.
On cross-examination Detective Walker stated that Claimant may
have engaged in some carpentry work or mechanic work, but did not know how
much or how often. No evidence was presented at the hearing to document
any monies received from such work.
29.
No individuals other than Claimant Donald Reeder filed any claim
for the seized property detailed above.
Accordingly, if no claim is filed, even if
the seized property is later determined to belong to someone else, the seized
property is forfeited by operation of law.
30.
Detective Walker’s testimony was credible.
CONCLUSIONS OF LAW
1.
As a preliminary matter, a claimant must file a “claim” with the
Department of Safety in order to assert a claim for seized property. See Rules of
the Department of Safety, Rule 1340-2-2-.07. A “claim” is defined as: “a written
request, signed under oath, for a hearing by a claimant seeking to recover an
alleged interest in seized property. A claim must conform to Rule 1340-2-2.07.” Rules of the Department of Safety, Rule 1340-2-2-02.
2.
Rule 1340-2-2-.06 of the Rules of the Department of Safety states,
in pertinent part:
(c)
All potential claimants and secured parties shall be sent
notification to their last known address that Forfeiture Warrant
has been issued. The notice shall state the name of the potential
claimant or secured party, the name of the person(s) in possession
of the seized property, give a general description of the seized
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property, the reasons for the seizure, the procedure by which
recovery of the property may be sought, including the time period
in which a claim or proof of security interest shall be filed with the
Legal Division, and the consequences of failing to file within the
time period.
(d)
Notice to a potential claimant or secured party shall be given
in accordance with state and federal constitutional requirements.
Such notice may be proven by notice sent to the potential claimant
or secured party by certified mail, return receipt requested, at the
claimant’s or secured party’s last known address.
3.
Secured parties or lienholders may submit a claim for their interest
in seized property as follows:
If a secured party with a duly perfected security interest receives
notification pursuant to T.C.A. §40-33-204(g) that a forfeiture
warrant has been issued with regard to such secured property,
such secured party must submit proof of the security interest
(copy of title and security agreement) to the department within
thirty (30) days of receipt of such notification in order for the
provisions of this subparagraph to apply. A secured party with a
duly perfected interest or any successor in interest to such secured
party who does not receive notice of intent to forfeit such interest
pursuant to T.C.A. §40-33-204(b)(3), need not file a claim to
preserve any right such party may have to such property. Upon
receiving proof of a security interest, no cost bond or other
pleadings need be filed by the secured party or successor in
interest in order to protect its interest in the seized property or to
assert a claim to the property as provided in T.C.A. §40-33-206. If
the department notifies a secured party that it intends to seek
forfeiture of the secured party’s interest, it shall seek a forfeiture
warrant against such secured party as provided in T.C.A. §40-33204(b). Upon receiving notice that such a forfeiture warrant has
been issued, the secured party is required to file a claim for the
property as provided in this part. (Emphasis added.)
Any secured party, other than one described above, or any
successor in interest to such secured party may file a claim for
seized property by complying with the provisions of T.C.A. §40-33206, within thirty (30) days of the date the forfeiture warrant is
issued.
Rule 1340-2-2-.07 of the Rules of the Department of Safety.
.
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4.
The State has the burden of proving, by a preponderance of the
evidence, that the seized vehicles, currency and property were subject to
forfeiture because they was being used or were 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).
5.
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.”
6.
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.
7.
The State is not required to trace money or property bought with
drug proceeds to specific drug sales; as long as there is some proven nexus to
connect the seized property with illegal drug sales activity.
evidence can be used to make this connection.
Circumstantial
Lettner v. Plummer, 559
S.W.2d 785 (Tenn. 1977); Goldsmith v. Roberts, 622 S.W. 2d 438 (Tenn.Ct.
App. 1981).
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8.
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).
9.
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.”
10.
T.C.A. §39-17-417 states as follows:
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.
11.
Marijuana is a controlled substance (Schedule VI drug). See T.C.A.
§39-17-415.
12.
Possession of marijuana is a Class D felony if the amount involved
is greater or equal to ten (10) lbs and less or equal to seventy (70 lbs).
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Here,
the amount of marijuana seized from Claimant’s residence and farms was
nineteen (19) lbs. See T.C.A. §39-17-417(g)(2).
13.
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 14.175 grams or more
of any substance containing marijuana (one-half ounce). Nineteen pounds of
marijuana was seized from Claimant’s residence and property.
14.
It is clear, from the evidence presented at the hearing, that the
seized property was either used to transport, store, or facilitate illegal drug
sales, was purchased with proceeds from illegal drug sales, or was actually
proceeds, cash or currency received from illegal drug sales.
15.
The only claims to the seized property which were filed were claims
made by Claimant and owner, Donald Reeder.
None of the other Reeder
brothers filed claims, nor did Claimant’s son, Nick Reeder, file a claim
concerning the currency found in a drawer in the bedroom used by Nick
Reeder. Certainly all of the Reeder family (brothers and son) had notice of the
searches of Claimant’s property pursuant to search warrants and had
discussions with Donald Reeder.
16.
No assertion was made by Donald Reeder that any of the property
belonged to anyone other than himself. In fact, he identified himself as “owner”
in his petition.
17.
No affidavit, deposition testimony, or other testimony was offered
to support that the property had been “given” to him.
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18.
Nor did Donald Reeder offer income tax records, receipts, pay
stubs, or payment records for any other type of work which he may have done.
19.
The evidence preponderates that the seized property and currency
were obtained or intended to be used in violation of the Tennessee Drug
Control Act.
20.
The preponderance of the evidence supports that Claimant was
involved in a large scale illegal drug (marijuana) operation. Claimant offered no
evidence which supported income, other than drug income, purchased the
seized tractor, motorcycles (dirt bikes), or other property. Claimant offered no
evidence of additional employment (tax records, pay stubs, etc.) which would
support the purchase of any of the seized goods, tractor, or vehicles. Nor did
Claimant offer any evidence to support any source, other than drug sale
proceeds, of the seized currency.
21.
Frankly, the evidence preponderates that Petitioner did not
purchase the property listed above with a salary of $15, 000 per year. Nor was
there any kind of reasonable explanation for $3300 in U.S. currency being in a
drawer in close proximity with marijuana.
22.
The State has met its burden of proof in this case.
The seized
tractor, vehicles (motorcycles or “dirt bikes”), and other property is subject to
forfeiture.
Accordingly, it is ORDERED that the above referenced property and
currency be immediately forfeited to the seizing agency.
It is so ordered.
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This Order entered and effective this 20th day of September, 2010.
Thomas G. Stovall, Director
Administrative Procedures Division
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