57-9-202 - Procedure for seizing contraband property Claims Hearings. - Tennessee Statutes

57-9-202. Procedure for seizing contraband property Claims Hearings.

(a)  In all cases of seizure of any alcoholic beverages or other property subject to forfeiture under the provisions hereof, the officer or other person making the seizure shall proceed as follows:

     (1)  The officer or other person shall deliver to the person, if any, found in possession of such property, a receipt showing a general description of the seized goods, the reason for the seizure, the procedure by which recovery of the goods may be sought, including the time period in which a claim for recovery must be presented, and the consequences of failing to file within the time period. If the person found in possession of the seized property is not the sole unencumbered owner of same, the commission shall make a reasonable effort to furnish a copy of the receipt to the owner and/or lienholder. A copy of the receipt shall be filed in the office of the commission and shall be open to the public for inspection;

     (2)  All such property seized and confiscated under the provisions of this part may be designated by the director for use by the commission for any period of time or shall be sold at public sale by the commissioner of general services when the same has been turned over to the commissioner by the commission as now authorized by law.

(b)  (1)  Any person claiming any property so seized as contraband goods may, within fifteen (15) days from the date of receipt of notification of seizure, and after executing a bond for costs with one (1) or more good and solvent sureties in the sum of two hundred fifty dollars ($250), made payable to the state of Tennessee, file with the commission at Nashville a claim in writing, requesting a hearing and stating the person's interest in the articles seized. An indigent person may file a claim in forma pauperis by filing with the claim an affidavit stating that the indigent person is unable to bear the cost of the proceeding.

     (2)  The commission shall set a date for hearing within fifteen (15) days from the day the claim is filed.

     (3)  The commission is empowered to subpoena witnesses and compel their attendance at hearings authorized hereunder. All parties to the proceeding, including the person claiming such property, shall have the right to have subpoenas issued by the commission to compel the attendance of all witnesses deemed by such parties to be necessary for a full and complete hearing. All witnesses shall be entitled to the witness fees and mileage provided by law for legal witnesses, which fees and mileage shall be paid as a part of the costs of such proceeding.

(c)  At each hearing authorized in subsection (b), the state shall have the burden of proving by a preponderance of the evidence that the seized property was of a nature making its possession illegal or was used in a manner making it subject to forfeiture, under the provisions of this part, and failure to carry the burden of proof shall operate as a bar to any forfeiture hereunder.

(d)  In the event the ruling of the commission is favorable to the claimant, the commission shall deliver to the claimant the alcoholic beverages or property so seized. If the ruling of the commission is adverse to the claimant, the commission shall proceed as to such contraband goods in accordance with the foregoing provisions hereof. The expenses of storage, transportation, etc., shall be adjudged as a part of the cost of the proceeding in such manner as the commission shall fix.

(e)  (1)  Whenever, in any proceeding under this part, a claim is filed for any vehicle, aircraft or boat seized, as provided in this section, by an owner or other person asserting the interest of the owner, the commissioner shall not allow the claim unless and until the claimant proves that:

          (A)  The claimant has an interest in such property which the claimant acquired in good faith; and

          (B)  The claimant had at no time any knowledge or reason to believe that it was being or would be used in the violation of the laws of the United States or of the state of Tennessee relating to liquor.

     (2)  Whenever, in any proceeding under this section, a claim is filed for any property seized, as provided in this section, by a person who is the holder of a security interest or other claim arising out of a contract or agreement, the commissioner shall not allow the claim unless and until the claimant proves that such claimant has an interest in such property which such claimant acquired in good faith. An interest which is acquired in the ordinary course of business shall be presumed to be in good faith unless the commissioner receives evidence that the holder of the security interest had knowledge, at the time the interest attached, of the intended illegal use of the vehicle or was a co-conspirator in furtherance of the illegal activity. A holder of a security interest which is other than a natural person shall be considered a co-conspirator for purposes of this section, if evidence shows that an officer, employee or agent of the holder acting within the scope of employment is a co-conspirator, and the holder either:

          (A)  Has actual knowledge of the illegal activities of the officer, employee or agent from an individual other than the officer, employee or agent and fails to take appropriate action; or

          (B)  The holder has failed to reasonably supervise or monitor the activities of the officer, employee or agent.

     (3)  In the event the interest of the owner is forfeited as provided in subdivision (e)(1) and the interest of the holder of a security interest is not forfeited as provided in subdivision (e)(2), the commissioner may, at the request of the holder of such interest, return the property to the holder for disposition in accordance with the applicable security agreement or other contract. If the commissioner does not return the property to the holder, the forfeiture shall be subject to the holder's interest.

     (4)  An owner whose interest is forfeited after being arrested for, or charged with, any felony, shall be ineligible to purchase the property from, or to bid at any sale of the property by, the commissioner or any seizing agency. The owner whose interest is forfeited after being arrested for, or charged with, any felony, shall also be ineligible to redeem the property from, or to bid at any sale of the property by, any holder of a security interest acting pursuant to the agreement contract or title 47, chapter 9.

(f)  Pending any proceeding to recover a vehicle, aircraft or boat seized hereunder, the commission may order delivery thereof to any claimant who shall establish the right to immediate possession thereof, and who shall execute, with one (1) or more sureties approved by the commission, and deliver to the commission, a bond in favor of the state of Tennessee for the payment of a sum double the appraised value thereof as of the time of the hearing; and conditioned further that, if the vehicle, aircraft or boat is not returned at the time of hearing, the bond shall stand in lieu of and be forfeited in the same manner as such vehicle, aircraft or boat.

(g)  The commission may personally hold such hearings as it may deem proper. In addition thereto, the commission is authorized to designate a hearing officer who may hold such hearings in the place and in the absence of the commission. Such hearing officer shall make findings of fact, conclusions of law, and proposed order based thereon. If the commission concurs, it shall issue the order; or it may, upon review of the record, make such findings, conclusions and issue such order as, in its discretion, the record justifies. At all hearings provided for herein, the commission shall provide a stenographer or court reporter to take a stenographic record of the evidence adduced at such hearing. The claimant or protestant shall be entitled to a copy of the stenographic record, upon application therefor, and upon paying the reasonable cost thereof to be fixed by the commission.

[Acts 1941, ch. 119, § 2; 1947, ch. 128, § 1; C. Supp. 1950, § 6648.25 (Williams, § 6648.27); Acts 1955, ch. 347, § 6; impl. am. Acts 1959, ch. 9, §§ 5, 14; Acts 1959, ch. 301, § 3; 1959, ch. 302, § 1; impl. am. Acts 1961, ch. 97, § 5; Acts 1963, ch. 258, § 1; 1967, ch. 368, § 1; 1970, ch. 451, § 3; impl. am. Acts 1972, ch. 543, § 7; Acts 1973, ch. 357, §§ 2-4; T.C.A. (orig. ed.), § 57-623; Acts 1985, ch. 76, § 3; 1990, ch. 1037, §§ 2, 5.]