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Tennessee Department of State, Opinions from the
Administrative Procedures Division
7-21-2008
DEPARTMENT OF SAFETY vs. $7,000.00 U.S.
currency, Seized From: SHAMAIN M.
JOHNSON, Date of Seizure: April 29, 2008,
Claimant: SHAYLA L. BRYANT
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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]
Law
BEFORE THE COMMISSIONER OF THE
TENNESSEE DEPARTMENT OF SAFETY
IN THE MATTER OF:
DEPARTMENT OF SAFETY,
v.
DOCKET NO: 19.01-099671J
$7,000.00 U.S. currency
DOS No.: H3168
Seized From: SHAMAIN M.
JOHNSON
Date of Seizure: April 29, 2008
Claimant: SHAYLA L. BRYANT
INITIAL ORDER
This contested case was heard on July 21, 2008, before Mary M. Collier, Administrative
Judge, assigned by the Secretary of State to sit for the Commissioner of the Tennessee
Department of Safety. The Claimant, Shayla L. Bryant, appeared pro se, waiving the right to
legal counsel. Cynthia E. Gross, Metropolitan Attorney, represented the Department of Safety.
The subject of this hearing was the seizure of $7,000 in cash from Shamain M. Johnson,
based on allegations that Johnson received or possessed the cash in violation of the Tennessee
Drug Control Act. The Claimant alleges that a portion of the $7,000 cash seized from Johnson,
specifically $5,882.05, belonged to her and should be returned to her. Upon full consideration of
the record established during the hearing, it is determined that the seized property should be
forfeited to the Seizing Agency. This decision is based upon the following.
FINDINGS OF FACT
1.
On April 29, 2008, Officer Brad Bracey, while on patrol in Davidson County,
spotted a Ford Expedition, driven by Johnson, in which a television was playing in the
passenger-side front seat. Because it is illegal to have a television in the driver’s view, Officer
Bracey pulled Johnson over.
2.
Officer Bracey approached the vehicle, driven by Johnson and containing three
additional passengers, and began questioning Johnson. Johnson became belligerent, so Officer
Bracey called for backup. Claimant, who was incarcerated at the time, was not present at the
stop.
3.
Soon after, a canine officer arrived. Officer Bracey asked Johnson and the other
passengers to exit the vehicle so the canine could search the vehicle. The canine alerted to
narcotics in the vehicle.
4.
Officer Bracey patted down Johnson, and although he did not feel a weapon, he
felt a bulge in Johnson’s pocket. Officer Bracey asked Johnson to empty his pockets. Johnson
attempted to remove some items while leaving others in his pocket, at which point Officer
Bracey requested that Johnson remove everything from his pocket. Johnson refused to comply
and fled.
5.
Officer Bracey successfully apprehended Johnson and discovered five Lortab
pills, three Ecstasy pills, and six grams of crack cocaine in Johnson’s pocket.
6.
A search of the vehicle revealed digital scales with powder residue, a 30-round
Magnum with bullets, $6,000 in cash in a fake “flat fix-it” aerosol can, and $1,000 in cash in a
wallet. When questioned about the $7,000 obtained during the search, Johnson claimed that all
of the money was his. The above items, the cash, and the drugs were confiscated by the State.
7.
Johnson’s criminal record revealed that he had multiple drug-related charges, had
previously received an 11-year sentence related to some of these charges, and had pled guilty in
2002 to drug-related charges.
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8.
Claimant, who has a child with Johnson, filed a Petition for Hearing claiming
ownership of the $7,000 seized from Johnson.
9.
During the hearing, Claimant explained that she is really only entitled to $6,100
of the $7,000 seized from Johnson.
10.
Finally, later in the hearing, based upon the actual amount of her tax return
documentation, Claimant explained that she is really only entitled to $5,882.05 of the $7,000
seized from Johnson.
11.
In support of her claim of ownership of the $5,882.05, Claimant explains that on
February 4, 2008, while she was incarcerated for approximately one year, she gave her uncle,
John T. Maupins, a limited power of attorney for the purposes of filing her tax return for her. 1
Claimant further claims that her uncle received $5,882.05 cash from her tax return and turned the
money over to Johnson so that he could secure an apartment for Claimant to live in after her
release from jail. Claimant contends that $5,882.05 of the $7,000 cash confiscated from Johnson
on April 29, 2008, was the money from her tax return given from her uncle to Johnson.
Claimant’s testimony regarding the ownership of this $5,882.05 is not found to be credible.
12.
Claimant’s criminal history includes pleading guilty to facilitation of second
degree murder, violation of her probation for testing positive for cocaine, and lying to a police
officer.
CONCLUSIONS OF LAW
1.
“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
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The LIMITED POWER OF ATTORNEY specifically appoints John T. Maupins as Claimant’s “true and lawful attorney
–fact for the purpose of taking care of all of my personal and financial matters.”
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violation of the Tennessee Drug Control Act . . .” are subject to forfeiture under the law. TENN.
CODE ANN. § 53-11-451(a)(6)(A).
2.
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. TENN. CODE ANN. §§ 53-11-201(d)(2) & 40-33-210(a) & (b)(1);
RULE 1340–2–2–.15, TENN. COMP. R. & REGS., Rules of the Tennessee Department of Safety.
3.
It is not necessary that the Seizing Agency be able to trace the seized property to a
specific drug transaction. Lettner v. Plummer, 559 S.W.2d 785, 787 (Tenn. 1977).
4.
Although at the time of seizure, Johnson claimed that he could present evidence
of legitimate income, he has not done so. At this time, Johnson has not contested the seizure of
the cash at issue and at no time did he state that it belonged to anyone other than himself.
5.
At the time of seizure, Johnson had in his possession drugs, scales with powder
residue, large sums of cash, and a fake aerosol can that was used to store money. A sufficient
nexus has been established between Johnson’s illegal drug activities and the seized cash to
establish by a preponderance of the evidence that the cash is connected to the exchange of
controlled substances. See generally, United States v. All Assets & Equipment, 58 F.3d 1181,
1189 (7th Cir. 1995), cert. denied, 516 U.S. 1042 (1996); United States v. One 1987 Mercedes
560 SEL, 919 F.2d 327, 331-32 (5th Cir. 1990); United States v. Thomas, 913 F.2d 1111, 1114-15
(4th Cir. 1990).
6.
It is therefore concluded that the seized cash and other items were property “of
value furnished . . . in exchange for a controlled substance in violation of the Tennessee Drug
Control Act of 1989, . . .” and/or “. . . proceeds traceable to such an exchange, and . . . moneys . .
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. used, or intended to be used, to facilitate any violation of the Tennessee Drug Control Act,” and
that it is thus rendered subject to forfeiture under the law.
TENN. CODE ANN. § 53-11-
451(a)(6)(A).
7.
Claimant’s testimony that $5,882.05 is her money is not found to be credible due
to the lack of trustworthiness found in the Claimant’s demeanor, the vagueness of her testimony,
and the constantly changing details in her testimony. In addition, Claimant’s own criminal
history, including lying to an officer, diminishes her credibility further.
8.
Claimant has not offered any proof that her uncle transferred the $5,882.05 from
her tax return to Johnson. Even if Claimant’s uncle did give Claimant’s tax return money to
Johnson to secure housing for her, Claimant has offered no explanation or evidence to support
her claim that the actual $7,000 cash confiscated from Johnson on April 29, 2008, included the
same $5,882.05 cash that her uncle acquired from her tax return.
9.
It is determined that there is insufficient credible proof in the record to determine
that any of the seized cash belongs to the Claimant. Accordingly, it is concluded that the
Claimant has no ownership interest in any of the seized cash.
10.
As found above, it is determined that the State met its burden of proof.
11.
Accordingly, it is hereby determined that all property – $7,000 in U.S. currency –
which is the subject of this claim was properly seized pursuant to the Tennessee Drug Control
Act.
12.
IT IS THEREFORE ORDERED that all property seized from Johnson on April
29, 2008, be forfeited to the Seizing Agency, the Metropolitan Nashville and Davidson County
Police Department, for disposition as provided by law.
It is so Ordered.
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Entered and effective this the ______ day of __________________, 2008.
_____________________________________
MARY M. COLLIER
ADMINISTRATIVE JUDGE
Filed in the Administrative Procedures Division, Office of the Secretary of State, this
20th day of October, 2008.
THOMAS G. STOVALL, DIRECTOR
ADMINISTRATIVE PROCEDURES DIVISION
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