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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 DOS Case. No. H4898, vs. $48, in U.S. CURRENCY, SEIZED FROM: Cary Wilkerson, SEIZURE DATE: June 24, 2008, CLAIMANT: Cary Wilkerson & Fanta, Walker, LIENHOLDER: N/A Follow this and additional works at: 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, ) Docket No J ) DOS Case. No. H4898 v. ) ) $48, in U.S. CURRENCY ) SEIZED FROM: Cary Wilkerson ) SEIZURE DATE: June 24, 2008 ) CLAIMANT: Cary Wilkerson & Fanta ) Walker ) LIENHOLDER: N/A ) INITIAL ORDER This matter came to be heard on April 28, 2009, before Rob Wilson, Administrative Judge, assigned by the Secretary of State, and sitting for the Commissioner of the Tennessee Department of Safety in Nashville, Tennessee. Ms. Lori Long, staff attorney for the Department of Safety, represented the Department of Safety/the State. Claimants Cary Wilkerson and Fanta Walker were present, and were represented by Roger Hyman, Esq. The subject of this hearing was the proposed forfeiture of the above referenced currency seized for its alleged use in violation of the Tennessee Drug Control Act, T.C.A , et seq. and T.C.A , et. seq, and T.C.A After a review of the record and the arguments of the parties at hearing, it is determined that the seized currency should be FORFEITED to the seizing agency. This determination is based on the following findings of fact and conclusions of law.

3 FINDINGS OF FACT 1. On June 24, 2009, Officer Dale Lockhart observed a tan Chevrolet HHR traveling above the posted speed limit and following traffic too closely (tailgating). 2. Officer Lockhart initiated a traffic stop and the vehicle pulled over. The vehicle s driver, Cary Wilkerson, stated that the car was his cousin s rental car. According to the rental car contract the car was to have been returned on April 16 th. 3. Officer Lockhart stated that Mr. Wilkerson was overly-talkative and seemed to be nervous. 4. Officer Lockhart asked for consent to search the vehicle. Mr. Wilkerson stated that Officer Lockhart could search the vehicle, and added that there were no weapons, drugs, or large sums of money in the vehicle. Mr. Wilkerson did state, however, that he had $3, in his left front pocket. 5. Officer Lockhart s search of the vehicle revealed marijuana shake on the passenger floorboard and $48, in U.S. Currency in sealed plastic taped under the windshield wiper cowling. 6. Mr. Wilkerson denied that the money was his, and he was transported for questioning. The currency was seized as proceeds from violations of the Tennessee Drug Control Act. At the subsequent forfeiture hearing, Mr. Wilkerson stated that he was a concert promoter and that the money found under the hood of the rental car was intended as payment to various artists who were to perform in concerts on August 22 nd and 23 rd. Mr. Wilkerson stated that the artists would only accept cash payments. 2

4 7. Mr. Wilkerson submitted as proof multiple performance agreements, business cards, advertising flyers, and backstage passes in support of his claim that the U.S. Currency found during the search of the rental car was legally and legitimately acquired through his employment as a concert promoter. 8. At the hearing, Mr. Wilkerson offered a more detailed explanation for the source of the money and claimed it as belonging to him. He said that he had obtained part of the $48,000 by hosting parties to which he charged an admission fee. He further stated that a large portion of the currency was lent to him by his girlfriend, Fanta. He stated that the money was vacuum-sealed and hidden in the car for safety reasons. CONCLUSIONS OF LAW 1. The State has the burden of proving by a preponderance of the evidence that the seized property is of a nature making its possession illegal, or that it was used in a manner making it subject to forfeiture, and failure to carry the burden of proof is a bar to any forfeiture. T.C.A (d). 2. Tennessee Code Annotated, Section (a)(6)(A), authorizes the forfeiture of [e]verything 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. The State is not required to trace money or proceeds to specific drug sales, so long as there is some proven nexus to connect the seized property with sales activity. 3

5 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. App. 1981). 4. It is well settled that the presence of cash associated with an individual, without further explanation, is not sufficient to prove that the currency was received in consideration for a controlled substance. See Goldsmith v. Roberts, 622 S.W. 2d 438, 440 (Tenn. App. 1981), or more recently, Fullenwider v. Lawson, 1992 WL (Tenn.Ct. App.) 5. During the actual stop the Claimant stated that there was no money in the car. Claimant now contends the currency was his all along, acquired from various sources and to be used to pay artists for performances. 6. The State succeeded in meeting its burden to show by a preponderance of the evidence that the currency at issue is, more probably than not, associated with illegal drug transactions. The currency was carefully hidden and vacuum sealed. It was bound in a manner associated with drug money. Mr. Wilkerson initially denied ownership of the money. He originally offered no information that would indicate a legitimate source for the discovered currency. His later explanation of how the money in question was obtained was inconsistent with possession of such a large amount of currency. Officer Lockhart s account of the traffic stop raised a reasonable suspicion that the money might be drug money. The preponderance of evidence available at the time of the seizure was that the discovered money was, more likely than not, associated with illegal drugs. The State has met its burden through circumstantial evidence to show that the currency is subject to forfeiture. 4

6 7. When property is seized, the claimant must establish that an ownership interest in the seized property that is acquired in good faith. TCA (f)(1). Without such an ownership interest, a party lacks standing to challenge the forfeiture. In this case, Mr. Wilkerson denied ownership of the currency originally. He affirmatively stated that the currency was not his. Now that he has decided to claim the currency, he must establish his ownership interest. He has attempted to do so by introducing evidence of his employment as a concert promoter. This evidence falls far short of being convincing that it establishes his acquisition of $48,000. The documents he provided do not substantiate a legitimate source for $48,000. He claims to have acquired part of the cash by selling tickets to a party, but offered no supporting documentation to substantiate this claim. The documents purporting to be contracts with performers, even if taken as he presented them and assuming that they are valid, do not explain how he came to have $48,000 in U.S. Currency vacuum-sealed and well-hidden in his car. Furthermore, the supposed concerts were allegedly scheduled to take place on August 22 nd and 23 rd. Apparently, then, Mr. Wilkerson is asking the court to believe that the $48,000 in U.S. Currency was going to remain sealed and taped under the hood of his cousin s rental car for the next two months, after which time he would pay it to an artist who only accepts cash on the night of the concert. Mr. Wilkerson s testimony is simply not credible. His original statement claiming that there was no cash in the car, together with his later denial of ownership of the currency and his failure to mention his work as a concert promoter at the time of the stop supports the conclusion that the $48,000 did not come from this endeavor. 5

7 8. Therefore, it is determined that there is no competent evidence supporting Mr. Wilkerson s claim for the seized $48, It is hereby ORDERED that the claim of Cary Wilkerson for seized currency is DENIED, and the $48, is FORFEITED to the seizing agency. This Initial Order entered and effective this 25th day of June, Rob Wilson Administrative Judge Filed in the Administrative Procedures Division, Office of the Secretary of State, this 25th day of June, Thomas G. Stovall, Director Administrative Procedures Division 6