Oliver v. Tenn. Dep't of Safety & Homeland Sec.

• Decision Date: 04 November 2022
• Docket Number: M2021-00121-COA-R3-CV
• Parties: DAYSPARKLES OLIVER v. TENNESSEE DEPARTMENT OF SAFETY AND HOMELAND SECURITY
• Court: Tennessee Court of Appeals

DAYSPARKLES OLIVER
v.
TENNESSEE DEPARTMENT OF SAFETY AND HOMELAND SECURITY

No. M2021-00121-COA-R3-CV

Court of Appeals of Tennessee, Nashville

November 4, 2022

Session September 15, 2021

Appeal from the Chancery Court for Davidson County No. 18-0639-I, 18-0657-I Patricia Head Moskal, Chancellor

Narcotics officers seized two vehicles and approximately $23,000 in U.S. currency while executing a search warrant at a residence. An administrative law judge ordered the Tennessee Department of Safety and Homeland Security to return the seized property to the purported owner. The judge determined that the search warrant was issued without probable cause, resulting in an illegal seizure. And, if not, the Department failed to prove that it strictly complied with the forfeiture statutes. The Department petitioned for judicial review. After reviewing the administrative record, the chancery court reversed in part, vacated in part, and remanded the administrative decision for further proceedings. We affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed

Herbert S. Moncier, Knoxville, Tennessee, for the appellant, DaySparkles Oliver.

Herbert H. Slatery III, Attorney General and Reporter, Andree Sophia Blumstein, Solicitor General, and Miranda Jones, Assistant Attorney General, for the appellee, Tennessee Department of Safety and Homeland Security.

W. NEAL MCBRAYER, J., delivered the opinion of the court, in which ARNOLD B. GOLDIN and KENNY W. ARMSTRONG, JJ., joined.

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OPINION

W. NEAL MCBRAYER, JUDGE

I.

A.

The narcotics unit of the Knox County Sheriff's Department suspected that Victor Hines was involved in illegal drug activity. As part of the investigation, officers arranged a controlled drug purchase. A confidential informant purchased cocaine from Mr. Hines three times at a residential address on Woodland Avenue. As a result, the officers obtained a warrant to search the home. They found six ounces of cocaine, two ounces of powder cocaine, and two firearms at that address. This discovery led a judge to issue three warrants for Mr. Hines's arrest.

A short time later, officers made two more controlled drug purchases from Mr. Hines at another residential location-818 Vermont Avenue. Mr. Hines's girlfriend, DaySparkles Oliver, owned the 818 Vermont Avenue property. Mr. Hines owned an adjacent vacant lot under a known alias.

The officers obtained a warrant to search both 818 Vermont Avenue and the adjacent lot. On May 10, 2017, the officers executed the warrant. Both Mr. Hines and Ms. Oliver were present. The search uncovered 59 Schedule II pills, $23,145 in U.S. currency, and miscellaneous drug paraphernalia. Mr. Hines was arrested. In addition to the contraband, the officers seized the currency, a Nissan Juke, and a Chevrolet Impala. See Tenn. Code Ann. § 53-11-451(a)(4), (a)(6)(A) (2022).

The seizing officer applied for forfeiture warrants for the seized property. See id. § 40-33-204(b)(2) (2018).^[1] Based on the officer's sworn affidavit, a general sessions judge found probable cause to believe that the seized property was subject to forfeiture under Tennessee law. See id. § 40-33-204(c)(1)(A). Ms. Oliver was the registered owner of the Nissan Juke. A public records search for the owner of the Chevrolet Impala was returned "not found." The judge found probable cause to believe that both Mr. Hines and Ms. Oliver had an ownership interest in the Nissan Juke and that their interests were subject to forfeiture under Tennessee law. See id. § 40-33-204(c)(1)(B). The judge also found probable cause to believe that Mr. Hines had an ownership interest in the Chevrolet Impala and that his interest was subject to forfeiture under Tennessee law. See id. § 40-33-204(d).

The seizing officer sent the forfeiture warrants and the supporting documents to the Tennessee Department of Safety and Homeland Security. See id. § 40-33-204(g). On June 5, 2017, the Department notified Ms. Oliver that a forfeiture warrant had been issued

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against the Nissan Juke and the currency. See id. Ms. Oliver filed a timely written claim and requested a forfeiture hearing. See id. § 40-33-206 (2018).

As for the Chevrolet Impala, the Department initially only notified Mr. Hines about the forfeiture proceedings. But after learning of Ms. Oliver's ownership interest, it also sent a notice to Ms. Oliver.^[2] See id. § 40-33-204(g). Shortly thereafter, Ms. Oliver submitted a second written claim and petitioned for a hearing. See id. § 40-33-206. This time, in lieu of a cost bond, Ms. Oliver submitted a uniform civil affidavit of indigency.^[3]See id. § 40-33-206(b).

The Department denied Ms. Oliver's request for indigent status, citing two defects in her affidavit. It was not notarized. And she had retained the services of an attorney, which disqualified her for indigent status under the Department's rules. See Tenn. Comp. R. &Regs. 1340-02-02-.07(5)(d) (2015) (listing requirements for an acceptable Pauper's Oath).

The Department notified Ms. Oliver that her second claim could not be processed as filed. See Tenn. Code Ann. § 40-33-206(b); Tenn. Comp. R. &Regs. 1340-02-02-.07(4)(a). She was given ten days to request a hearing or provide a cost bond. See Tenn. Comp. R. &Regs. 1340-02-02-.07(5)(f). Ms. Oliver opted for a hearing.

The Department set both requested hearings on the January 11, 2018 docket. The Department asserted that Ms. Oliver bore the initial burden of establishing her standing to contest the forfeiture. She disagreed, claiming that the Department was first required to prove strict compliance with the forfeiture statutes. Ms. Oliver raised other concerns in her pre-hearing pleadings. And shortly before the hearing, she notified the Department and the administrative judge that she planned to address the following issues at the hearing: (1) the qualifications of the administrative judge; (2) the standing issue; (3) the Department's strict compliance with the forfeiture statutes; (4) the validity of the search warrant; and (5) the merits of the seizure.

B.

At the outset of the hearing, the court heard argument from counsel concerning whether Ms. Oliver's second claim was valid. The Department maintained that Ms. Oliver's claim was invalid because she did not submit a cost bond or an acceptable

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affidavit of indigency. She did not meet the criteria for indigent status in the Department's rule. Ms. Oliver responded that the Department's rule conflicted with state law and violated her constitutional right to counsel.

The court then heard proof of the Department's compliance with the forfeiture statutes. Much of the proof focused on whether the Department provided Ms. Oliver with a notice of seizure and when it established a hearing date and set her claim on the docket. The Department filed as exhibits the documentation it initially received from the seizing officer, the forfeiture warrant letters sent to Mr. Hines, and an internal "cover sheet." Ms. Oliver's attorney also questioned the Department's attorney about various parts of the administrative record. The administrative judge agreed to consider the attorney's responses as additional proof on this issue.

Ms. Oliver submitted countervailing proof both before and after the hearing. Specifically, she filed an affidavit from her counsel and testimony from Pamela Patton, an administrative assistant at the Department, in an unrelated case. Ms. Oliver's counsel reported that the contested case file in the Administrative Procedures Division did not contain a notice of hearing on Ms. Oliver's first claim. In her testimony, Ms. Patton described the Department's routine practice for scheduling hearings in forfeiture actions.

To support her claim that the search was illegal, Ms. Oliver filed a transcript of the sworn testimony of Officer Chris Bryant. The affidavit used to obtain the search warrant stated that two controlled drug purchases occurred at 818 Vermont Avenue. Officer Bryant was the affiant. At the preliminary hearing in the related criminal action, he testified that the purchases occurred in the driveway of the 818 Vermont Avenue property. And Mr. Hines retrieved the cocaine from an outbuilding on his adjacent property. Based on Officer Bryant's testimony, Ms. Oliver asserted that the officers did not have probable cause to search her residence.

C.

The administrative judge permitted both sides to file post-hearing briefs. The Department's brief included 29 exhibits further documenting its compliance with the forfeiture statutes. Ms. Oliver moved to strike the post-hearing exhibits. She also filed a constitutional challenge to the rules the Department relied on to invalidate her second claim. And she asked the administrative judge to allow her fifteen days to file an application for attorney's fees and costs.

On April 10, 2018, the administrative judge issued his ruling. The judge concluded that the Department bore the initial burden of proving that the seizure was legitimate. The judge also determined that the affidavit submitted in support of the search warrant did not establish probable cause. Because the property was seized in violation of Tennessee law, the administrative judge granted Ms. Oliver's motion to suppress. Alternatively, the judge

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ruled that the Department failed to prove, by a preponderance of the evidence, that it had strictly complied with the forfeiture statutes. Specifically, the Department did not prove that it provided Ms. Oliver with a notice of seizure or that it set her claim on the docket by the statutory deadline. So the judge ordered the Department to return the seized property to Ms. Oliver.

Almost two months later, Ms. Oliver filed a document purporting to be both an application for attorney's fees and a motion for Rule 60 relief. She requested that the administrative judge "immediately (1) set a time for [Ms.] Oliver to file her...