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1 University of Tennessee, Knoxville Trace: Tennessee Research and Creative Exchange Tennessee Department of State, Opinions from the Administrative Procedures Division Law TENNESSEE DEPARTMENT OF SAFETY vs. One Hundred Seven Dollars $ in U.S. Currency & One 2006 Ford F150 Pick-up V.I.N. No.: 1FTPW14556FA17438, Seized from: Trent Matherly, Date of Seizure: April 18, 2011, Claimant: Steve Matherly d/b/a SMT&H, Lienholder: N/A Follow this and additional works at: Part of the Administrative Law Commons 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

2 BEFORE THE COMMISSIONER OF THE TENNESSEE DEPARTMENT OF SAFETY IN THE MATTER OF: ) ) TENNESSEE DEPARTMENT ) OF SAFETY ) ) v. ) DOCKET NO J ) [D.O.S. Case No. L6273] ) One Hundred Seven Dollars ) ($107.00) in U.S. Currency ) & ) One 2006 Ford F150 Pick-up ) V.I.N. No.: 1FTPW14556FA17438 ) Seized from: Trent Matherly ) Date of Seizure: April 18, 2011 ) Claimant: Steve Matherly d/b/a SMT&H ) Lienholder: N/A ) ) INITIAL ORDER The contested hearing in this matter came forward on October 26, 2011, in Knoxville, Tennessee, before Mattielyn B. Williams, Administrative Judge, assigned by the Secretary of State, Administrative Procedures Division, sitting for the Commissioner of the Tennessee Department of Safety. Ms. Nina Harris, Staff Attorney III, Tennessee Department of Safety, represented the State. The Claimant, Mr. Steve Matherly, d/b/a SMT&H, LLC, was represented by Attorney Jonathan M. Holcomb, of the Morristown Bar. 1

3 The subject of this matter was the proposed forfeiture of the subject 2006 Ford F150 Pick-up and One Hundred Seven Dollars ($107.00) in U.S. Currency which were seized for their use as transportation, as storage containers, as proceeds, as facilitating, as obtained in an exchange, as intended for use, or otherwise involved in an exchange, in violation of the Tennessee Drug Control Act, thus making the vehicle and currency subject to seizure, pursuant to T.C.A The parties stipulated that the One Hundred Seven ($107.00) Dollars seized should be forfeited to the seizing agency, for disposition as provided by law. After consideration of the record, it is DETERMINED that the subject vehicle should be RETURNED to Claimant Steve Matherly, d/b/a SMT&H, an innocent owner. This conclusion is based on the following findings of fact and conclusions of law: FINDINGS OF FACT 1. The parties stipulated that the One Hundred Seven ($107.00) Dollars seized should be forfeited to the seizing agency, for disposition as provided by law. 2. Driver Trent Matherly is the son of Claimant Steve Matherly, d/b/a SMT&H, LLC. Driver is a UT college student in Tennessee. SMT&H, LLC is located in Alabama. 2

4 3. Officer Adam Mitchell, of the Knox County Sherriff s Office, testified that he had received specialized illegal drug training, including attending drug interdiction school, beyond the training he received at the Police Academy. Such training equips Officer Mitchell to be able to identify different kinds of narcotics. 4. Officer Mitchell continued that an undercover Officer had purchased illegal drugs from Driver Trent Matherly s residence. As a result of such buy, a search warrant was obtained for Driver Trent Matherly s residence. 5. When Officer Mitchell and his colleagues entered Trent Matherly s residence, they found Driver Trent Matherly attempting to flush marijuana down the toilet. Collective Exhibit 1 consists of photos taken at the scene, showing the toilet, weight scales, baggies, smoking pipes, rolling papers, glass jars, mason jars, bowls with a leafy substance believed to be marijuana in them, and pill bottles with residue from a leafy substance believed to be marijuana in them. Exhibit 2, the Report from the TBI Lab, shows that the leafy substance did test as being 1.6 grams of marijuana. 6. Officer Mitchell further testified that based on his experience, the weight scales, baggies, jars, pipes, and 3

5 marijuana were indicative of both marijuana use and the packaging of marijuana for re-sale. Officer Mitchell continued that persons who only smoke marijuana and do not re-sell it do not usually have scales and keep their marijuana in one place, rather than in assorted baggies and jars, in his experience. 7. Although Trent Matherly had a roommate, Trent Matherly claimed the marijuana as belonging to him (Trent Matherly). Trent Matherly informed the Officers that he routinely buys an ounce of marijuana, twice a week, using the subject vehicle. The personal property in the truck belonged to Trent Matherly. Per Officer Mitchell, Trent Matherly told the Officers that the truck, parked outside the residence, which he utilizes for his purchases of marijuana, belonged to him (Trent Matherly). 8. Upon further inquiry, Driver Trent Matherly explained that his father, Mr. Steve Matherly, purchased the truck for him. The truck is registered to SMT&H. 9. Driver Trent Matherly was charged with unlawful possession of drug paraphernalia, distribution, and with having illegal drugs in his possession. A drug dog hit, i.e. alerted positively, on the subject truck. The subject truck 4

6 was seized. The subject currency was also seized, but its disposition was addressed by stipulation at the commencement of the hearing. 10. Officer Mitchell candidly admitted that there was no evidence to suggest that Mr. Steve Matherly knew that the subject vehicle was being used as transportation, as a container, and to facilitate illegal drug purchases by Driver Trent Matherly. 11. Claimant Steve Matherly is the sole owner of SMT&H, LLC. Mr. Matherly trades with museums and has been involved in the antique aircraft industry for fifteen to twenty (15-20) years. Claimant Matherly has four (4) children total. 12. Claimant Steve Matherly testified that he pays for Driver Trent Matherly s apartment at college. Claimant Matherly purchased the subject vehicle used and pays for all the repairs and the insurance on the subject vehicle. Claimant Matherly was adamant that he never has purchased vehicles for his children as gifts. Claimant Matherly explained that he maintains control over the use of the vehicles that he allows his children to borrow for example, if a child misbehaves, that child s car privileges are revoked and the child rides the 5

7 bus. Claimant Matherly continued that he monitors his children s activities by telephone. Claimant Matherly also noted that if a child was going to drive a vehicle out-of-state, the child had to get permission from him (Claimant Matherly) to do so. 13. Claimant Steve Matherly firmly and convincingly testified that if he had known about the marijuana in Driver Trent Matherly s apartment, prior to his arrest, he would have put his foot in his ass! 14. Driver Trent Matherly was sequestered until he was called as a witness by the State. Driver Matherly admitted trying to flush the marijuana down the toilet, admitted purchasing and selling marijuana, but denied using the truck to acquire the marijuana. Early on, Driver Trent Matherly said that it would surprise him if Officer Mitchell said that he used the truck to acquire the marijuana. Later in his testimony, Driver Trent Matherly admitted that he did use the truck to pick-up marijuana, sometimes. 15. Driver Trent Matherly further testified that his father, Mr. Steve Matherly, purchased the truck for him to drive in college, but that his father owns the truck. Driver Trent Matherly cited his (Trent Matherly s) inability to drive 6

8 the subject vehicle out-of-state as evidence of his father s control over the vehicle. Driver Trent Matherly continued that if the subject vehicle is returned to the family/family business, that he will be required to stay out of trouble for a year before he can drive the subject vehicle again. 16. Driver Trent Matherly indicated that he has not paid one dime toward the maintenance of the subject vehicle. Driver Trent Matherly said that his father pays for the gas, tires, windshield wipers, and oil changes on the subject vehicle. Driver Trent Matherly continued that he does not have the authority to sell the subject vehicle. 17. Claimant Steve Matherly did not submit receipts for his payment of insurance, tires, gas, and other maintenance of the subject vehicle. 18. No evidence was presented to suggest that Driver Trent Matherly was employed and therefore able to afford car insurance, tires, gas, windshield wipers, oil changes, and other maintenance of the subject vehicle. 7

9 CONCLUSIONS OF LAW 1. The State must carry its burden of proof, by a preponderance of the evidence, that the subject vehicle was used to facilitate, used as a container, used to transport, constitutes proceeds, or was obtained in an exchange, in a manner that violated the Tennessee Drug Control Act. Such violation subjects property to forfeiture pursuant to the provisions of T.C.A No illegal drugs and/or residue were found in the subject vehicle. The one controlled buy took place at Driver Trent Matherly s residence, not at a remote location. 3. Although Driver Trent Matherly testified, at one point, that he did not use the subject vehicle in acquiring marijuana, later in his testimony he did admit doing so. The drug dog s positive alert on the subject vehicle is CONCLUDED to be consistent with Driver Trent Matherly s latter testimony. Thus, by a preponderance of the evidence, it is CONCLUDED that the subject vehicle WAS USED to transport, as a container, and to facilitate transactions in violation of the Tennessee Drug Control Act. 4. Officer Mitchell testified that there was no evidence to suggest that Claimant Steve Matherly was aware that the subject vehicle was being used in violation of the Tennessee Drug Control Act. Based on Claimant Steve Matherly s candid, firm demeanor and the disgust on his face, it is CONCLUDED that Claimant Steve Matherly was unaware that the subject vehicle was being used in violation of the Tennessee Drug Control Act. 8

10 5. In asset forfeiture cases, the parties intent and a number of factors determine who is the true owner of a vehicle. Many persons engaged in the illegal drug trade have their vehicles intentionally registered in the names of other persons, in an effort to not have their vehicles confiscated. 6. Both parties argued that the subject vehicle was not co-owned. 7. In this particular matter, Claimant Steve Matherly purchased the vehicle, titled it in the name of his solely-owned business, paid for the insurance, tires, gas, windshield wipers, oil changes, and all other aspects of maintenance of the vehicle. Although it is true that Driver Trent Matherly did not have to obtain his father s permission to drive the subject vehicle daily and had his own key to the vehicle, it is CONCLUDED that Claimant Steve Matherly maintained control over the vehicle in terms of it being driven out-of-state and also maintained the ability to stop Driver Trent Matherly s use of it completely for misbehavior. 8. Given that Driver Trent Matherly was a UT student in Tennessee, while Claimant Steve Matherly remained in Alabama, it is CONCLUDED to be reasonable that Driver Trent Matherly had his own key to the subject vehicle; similarly, it is CONCLUDED to be reasonable that a college student not have to ask for permission to drive the subject vehicle in-town daily. 9. Based on the above, it is CONCLUDED that the subject vehicle is owned by Claimant Steve Matherly, an innocent owner. Therefore, it is hereby ORDERED that the subject F150 be RETURNED to Claimant Steve Matherly, d/b/a SMT&H, LLC. 9

11 This Initial Order entered and effective this 23 day of January, 2012 Mattielyn B. Williams Administrative Judge Filed in the Administrative Procedures Division, Office of the Secretary of State, this 23 day of January, 2012 Thomas G. Stovall, Director Administrative Procedures Division 10