Watson v. Tennessee Department of Safety

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

May 3, 2011 Session

BOB KEITH WATSON

v.

TENNESSEE DEPARTMENT OF SAFETY

Appeal from the Chancery Court of Davidson County

No. 09-485-IV Walter C. Kurtz, Senior Judge

No. M2010-02193-COA-R3-CV - Filed September 30, 2011

This appeal involves the forfeiture of personal property seized in connection with a criminal

investigation. The petitioner’s home was searched pursuant to a search warrant executed on

his home. Items of his personal property were seized by authorities, and later forfeited and

sold. The petitioner property owner filed this lawsuit, arguing that administrative protocols

regarding forfeiture proceedings were not followed and contesting the forfeiture of his

personal property. The administrative law judge held that the forfeiture and sale were valid,

and the property owner appealed to the trial court. The trial court affirmed. The property

owner now appeals to this Court. We affirm.

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

H OLLY M. K IRBY, J., delivered the opinion of the Court, in which A LAN E. H IGHERS, P.J.,

W.S., and J. S TEVEN S TAFFORD, J., joined.

William Kennerly Burger, Murfreesboro, Tennessee, for Petitioner/Appellant Bob Keith

Watson

Robert E. Cooper, Jr., Attorney General and Reporter, Joseph F. Whalen, Associate Solicitor

General and Benjamin A. Whitehouse, Assistant Attorney General, for Respondent/Appellee

Tennessee Department of Safety

OPINION

F ACTS AND P ROCEEDINGS B ELOW

In 2000, Petitioner/Appellant Bob Keith Watson (“Watson”) resided in Madisonville,

Monroe County, Tennessee. At that time, he was unemployed.

In 2000, the Monroe County Sheriff’s Department (“Sheriff’s Department”) received

information that Watson was involved in drug trafficking and commenced a lengthy

investigation. During the course of the investigation, an informant working with the

Sheriff’s Department made nine controlled methamphetamine purchases from Watson’s

residence. On January 25, 2001, the Sheriff’s Department issued and executed a search

warrant on Watson’s premises. In and around his home they found and seized a large amount

of methamphetamine and associated drug paraphernalia.

During the course of the January 25, 2001 search, the authorities who searched Watson’s

home also seized numerous items of personal property. These included currency, tools,

weapons, sixteen vehicles, lawn care equipment, boots, coffee pots, flashlights, and other

miscellaneous belongings. All told, officers seized approximately 240 items of personal

property with an estimated value of $400,000. The items were stored in various locations,

including the county impound lot, warehouses, and on the premises of a wrecker service

owned by a relative one of the Sheriff’s department officers. The same day, Watson was

arrested and charged with various drug related charges by Scott Wilson (“Officer Wilson”),

then director of Narcotics & Special Operations for the Monroe County Sheriff’s

Department.

After further investigation, the Sheriff’s Department took the position that the personal items

seized from Watson’s home were proceeds of Watson’s illegal activities, including drug

trafficking. After the seizure, on February 16, 2001, Notices of Property Seizure were

issued; they were served on Watson’s attorney at the time on February 23, 2001. Also post-

seizure on February 16, 20011 and March 2, 2001, Drug Asset Forfeiture Warrants for the

seized property were obtained.

At the same time that the Sheriff’s Department was investigating Watson, the Federal Bureau

of Investigation (“FBI”) was investigating him as well, for similar drug trafficking offenses

1

Each forfeiture warrant dated February 16, 2001 also contains an extension order signed by Monroe County

Criminal Court Judge Steve Bebb, dated February 2, 2001. These extension orders granted officers ten

additional days to seek forfeiture warrants based on circumstances justifying the exception to the five

working day requirement under Tenn. Code Ann.§ 44-33-204(b).

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and for involvement in a vehicle “chop-shop” operation.2 Watson was subsequently arrested

and charged on five federal counts of drug distribution, possession, and conspiracy to

manufacture and possess methamphetamine with the intent to distribute, as well as several

charges related to the chop-shop operation.

The record indicates that, on May 22, 2001, the state charges against Watson were apparently

dropped. The record does not show why the state charges were dropped.

On December 20, 2001, Watson pled guilty to five federal drug charges and to eleven

charges related to tampering with motor vehicle VIN numbers. As a result, Watson began

a lengthy incarceration in federal prison in Alabama.3

On November 6, 2004, the items of personal property seized from Watson’s home were sold

at a public auction. It is undisputed on appeal that the sale of Watson’s personal property

occurred prior to any hearing authorizing such a sale, in contravention of Tennessee Code

Annotated § 40-33-210(d). The State offers no explanation in the record of why these items

were sold prematurely. The record contains no documentation or itemization concerning the

value or disposition of the property.

After the auction of the property, an initial forfeiture hearing was held on November 19,

2004.4 During this hearing, Watson represented himself by telephone from federal prison.

At the hearing, Administrative Law Judge (“ALJ”) Randall LaFevor heard testimony from

Watson and Officer Wilson. Officer Wilson testified about the seizures that took place at

Watson’s home in January 2001.

On January 22, 2005, the ALJ issued an initial order concerning the disposition of the seized

property. In this initial order, the ALJ found that the State had established by a

preponderance of the evidence that Watson had been involved in drug trafficking for several

years prior to his January 2001 arrest based on the nine encounters Watson had with the

Sheriff’s Department’s confidential informant during that time. The ALJ found that Watson

had offered no evidence to refute the State’s evidence that, at the time his property was

2

Chop shop is defined as “a garage where stolen automobiles are dismantled so that their parts can be sold

separately.” Black’s Law Dictionary 234 (7th ed. 1999).

3

The record does not show how long Watson was incarcerated, but he remained incarcerated in federal prison

during the pendency of the proceedings below.

4

A hearing before Administrative Law Judge Randall LaFevor was convened on July 8, 2004, but was

postponed so that the ALJ could review Watson’s recently-filed pleadings.

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seized, Watson had neither a legal source of income nor an explanation for how he had been

able to accumulate such valuable property in the absence of a legal source of income. The

ALJ found that the State had established a “sufficient nexus” between Watson’s illegal drug

activities and the seized property to warrant a conclusion that the property was derived from

Watson’s drug enterprise. On April 29, 2005, this initial order was adopted and affirmed by

the Appeals Division of the Tennessee Department of Safety.

For reasons not affecting this appeal that we need not detail here, Watson’s appeal of the

administrative forfeiture order was delayed for several years. Eventually, on July 21, 2010,

Senior Judge Walter C. Kurtz was appointed to preside over the case, and he immediately

scheduled a hearing, which took place on September 17, 2010. As with the hearing before

the ALJ, Watson participated in the hearing before Judge Kurtz by telephone from federal

prison. By this time, he was represented by counsel. The appellate record does not include

either a transcript or a statement of the evidence from the hearing before Judge Kurtz.

A few days later, on September 21, 2010, Judge Kurtz issued a memorandum opinion and

order in the cause. In the memorandum opinion, the trial court addressed the issues argued

by Watson at the hearing. The trial court deflected Watson’s first argument, that his property

could not be forfeited because he was not convicted of violating state drug laws, citing

Ramsey v. State, No. M2006-01172-COA-R3-CV, 2007 WL 1237690, at *2 (Tenn. Ct. App.

Apr. 27, 2007).5 Watson’s argument that the seizure of his property was unconstitutional was

rejected because Watson failed to timely file a motion to suppress prior to the administrative

hearing, as required by Department of Safety regulations. Next, Watson contended that the

fact that the property was sold prior to the administrative forfeiture hearing deprived the

Department of Safety of jurisdiction over the forfeiture. Judge Kurtz recited that the State

conceded that the State’s action in selling Watson’s property prior to the hearing violated

Tennessee’s statutes. Nevertheless, Judge Kurtz found that Watson had cited no authority

establishing that the premature sale divested the Department of jurisdiction over the

forfeiture.

Finally, the trial court addressed Watson’s argument that the record does not support the

seizure because it does not show which items were related to Watson’s drug activities and

which were related to his theft activities, i.e., the “chop shop.” Watson noted that only the

state drug statutes authorize forfeiture of the offender’s property.

5

We note parenthetically that Ramsey v. State is a Memorandum Opinion, pursuant to Rule 10 of the Rules

of the Court of Appeals of Tennessee, and is therefore not to be cited. Ramsey, 2007 WL 1237690, at *1.

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The trial court first reviewed the testimony of the narcotics officer, Officer Wilson, outlining

the evidence of Watson’s illegal activities and the fact that Watson was unemployed and had

no legal means of support. It then characterized as “speculation” Watson’s assertion that the

property may not be connected to his drug activity. The trial court stated that Watson had

not established through cross examination or testimony that any of the seized property was

legitimately procured or was related to his theft activities as opposed to his drug activities.

Based on the administrative record, the trial court found that it could not “say that the factual

or legal conclusions of the administrative law judge were wrong,” under the standards set

forth in Tennessee Code Annotated §§ 40-33-213(a) and 4-5-322(h). Watson now appeals.

ISSUES ON A PPEAL AND S TANDARD OF R EVIEW

On appeal, Watson challenges the trial court’s holding that the record supports the

conclusions that Watson’s property was forfeited in accordance with the procedural

requirements set forth in Tennessee Code Annotated § 40-33-201, that the seized property

was subject to the lawful “disposition” under Tennessee Code Annotated § 53-11-201 et seq.,

and that the seized property was properly inventoried, disposed of, or accounted for pursuant

to Tennessee Code Annotated § 40-17-118.

In response, the State argues that the record shows that Watson had engaged in numerous

drug transactions, had illegal drugs in his possession at the time the seizure occurred, and had

amassed substantial property without any visible means of support. The State maintains that

the trial court correctly held that premature sale of Watson’s property had no effect on the

administrative forfeiture proceedings, and that the Department of Safety was under no

obligation to return the seized property to Watson following the dismissal of the drug charges

in state court, in light of the fact that Watson pled guilty to federal drug charges.

On appeal, the standard of review for the appellate court is the same as that of the trial court.

In Urquhart v. Tenn. Dep’t of Safety, No. M2006-02240-COA-R3-CV, 2008 WL 2019458,

at *4 (Tenn. Ct. App. May 9, 2008), the Court explained:

Judicial review of forfeiture proceedings is primarily governed by Tenn. Code

Ann. § 4-5-322 of the Uniform Administrative Procedures Act. Subsection (h)

of that statute provides that

The court may affirm the decision of the agency or remand the case for further

proceedings. The court may reverse or modify the decision if the rights of the

petitioner have been prejudiced because the administrative findings,

inferences, conclusions or decisions are:

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(1) In violation of constitutional or statutory provisions;

(2) In excess of the statutory authority of the agency;

(3) Made upon unlawful procedure;

(4) Arbitrary or capricious or characterized by abuse of discretion or clearly

unwarranted exercise of discretion; or

(5)(A) Unsupported by evidence that is both substantial and material in the

light of the entire record.

***

A variation from the above standard applies in forfeiture cases, which is set out

in Tenn. Code Ann. § 40-33-213. That statute explicitly refers to Tenn. Code

Ann. § 4-5-322(h) but declares that in forfeiture cases “[t]he reviewing court

shall use the preponderance of evidence standard in determining whether to

sustain or reverse the final order of the applicable agency. The burden of proof

on review shall be the same as in the proceedings before the applicable

agency.” . . .

Thus, the trial court must examine the evidence under the preponderance of the

evidence standard rather than the more deferential “substantial and material

evidence” standard. The appellate court must in turn follow the same standard

as the trial court when reviewing administrative proceedings under Tenn. Code

Ann. § 4-5-322.

Id. at *4-5. The analytical framework under Sections 4-5-322 and 40-33-213(a) has been

capsulized as follows:

Our review of forfeitures [under T.C.A. §§ 4-5-322 and 40-33-213(a)]

involves a three stage process. McEwen v. Tenn. Dep’t of Safety, 173 S.W.3d

815, 820-21 (Tenn. Ct. App. 2005). First, we must decide whether the agency

properly identified the appropriate legal principles. Id. Second, we review the

agency’s findings of fact to determine whether such findings are supported by

a preponderance of evidence. Id. Finally, we determine whether the agency

properly applied the governing legal standards to the facts. Id.

Brown v. Tenn. Dept. of Safety, No.M2010-01040-COA-R3-CV, 2010 WL 5541185, at *1

(Tenn. Ct. App. Dec. 23, 2010), perm. app. den., May 26, 2011.

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A NALYSIS

The authority of State officials to seize and cause the forfeiture of private property carries

with it an obligation to insure that the power is not abused. Redd v. Tenn. Dep’t of Safety,

895 S.W.2d 332, 335 (Tenn. 1995). Forfeitures are not favored by the law and statutes

authorizing forfeitures are to be strictly construed. Id. at 335.

Validity of Forfeiture Warrant

On appeal, Watson argues that, contrary to the requirements in Tennessee Code Annotated

§ 40-33-204(b),6 the Sheriff’s Department failed to seek a forfeiture warrant on his property

within five days of the January 25, 2001 seizure, and failed to provide him with

documentation of the ex parte forfeiture hearing. It is undisputed that the seizure occurred

on January 25, 2001, and each forfeiture warrant is dated no earlier than February 16, 2001.

Each forfeiture warrant contains an “extension order” signed by Monroe County Criminal

Court Judge Bebb,7 stating: “Based on the Seizing Officer’s sworn statements as to

extraordinary circumstances justifying exception to the ‘five (5) working days requirement,’

I grant up to ten (10) additional days through February 16, 2001 to seek a Forfeiture

Warrant.” The extension orders were signed on February 2, 2001, slightly more than five

working days8 after the seizure of Watson’s property.

6

This statute states:

The officer making the seizure shall apply for a forfeiture warrant by filing a sworn affidavit

within five (5) working days following the property seizure. The forfeiture warrant shall be

based upon proof by affidavit and shall have attached to it a copy of the notice of seizure.

The hearing on the application for a forfeiture warrant shall be ex parte and shall be

recorded. It is the duty of the court to maintain the recording. Certified copies of the

proceeding shall be made available to any party requesting them, and the same shall be

admissible as evidence. The affidavit in support of a forfeiture warrant shall be sworn to and

state the following: (1) The legal and factual basis making the property subject to forfeiture;

...

Tenn. Code Ann. § 40-33-204(b) (2006).

7

Watson alleges that Judge Bebb’s son, Andy Bebb, was an officer in the narcotics unit and accompanied

Officer Wilson in the search of Watson’s home on January 25, 2001. (TR Vol. III at 35–36).

8

A definition of the term “working days” is not included in the forfeiture statutes. For the purpose of our

analysis, we have assumed that the term has a meaning similar to the description in Rule 6.01 of the

Tennessee Rules of Civil Procedure which excludes “intermediate Saturdays, Sundays and legal holidays .

(continued...)

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Forfeiture warrants are addressed in Tennessee Code Annotated § 40-33-204. Subsection

(b) of the statute mandates that “[t]he officer making the seizure shall apply for a forfeiture

warrant by filing a sworn affidavit within five (5) working days following the property

seizure.”9 Tenn. Code Ann. § 40-33-204(b) (2006) (emphasis added). It is undisputed that

the seizing officers did not obtain the forfeiture warrants within five working days, but

instead obtained extension orders on February 2, 2001. Such extension orders are addressed

in subsection (c)(2), which states:

(c) If the seizing officer asserts to the judge that the officer was unable to

determine the owner of the seized property or whether the owner’s interest is

subject to forfeiture within the required five-day period, the judge may grant

up to ten (10) additional days to seek a forfeiture warrant if the judge finds that

the seizing officer has:

(A) Exercised due diligence and good faith in attempting

to determine the owner of the property or whether the owner’s

interest is subject to forfeiture; and

(B) Made a factual showing that because the existence of

extraordinary and unusual circumstances an exception to the

five-day forfeiture warrant requirement is justified.

Tenn. Code Ann. § 40-33-204(c)(2) (2006). The language in the statute is ambiguous on

whether the extension order must be obtained within five working days after the seizure of

the subject property. Watson does not address this statute, preferring to rely only on the

statement in Section 40-33-204(b) that the officer is to apply for the forfeiture warrant within

five days. In the absence of argument or authority that the extension order must be obtained

within five working days, we decline to interpret Section 40-33-204(c)(2) to include such a

requirement.

8

(...continued)

. . .” Tenn. R. Civ. P. 6.01.

9

Section 40-33-204(b) also states that the ex parte forfeiture hearing “shall be recorded” and that certified

copies of it “shall be made available to any party requesting them.” T.C.A. § 40-33-204(b). We find no copy

of the record of the forfeiture hearing in the appellate record. Watson alleges in his appellate brief that his

requests for a record of the forfeiture hearing were denied, but points us to no place in the appellate record

showing a timely request for such a record. We are not obliged to search the appellate record for it. Rather,

under Rule 27(a)(6) of the Tennessee Rules of Appellate Procedure, Watson is obliged to include references

to the record in his brief.

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Premature Sale of Property, Accounting of Proceeds

It is undisputed that Watson’s personal property was sold on November 6, 2004, prior to the

forfeiture hearing mandated by Tennessee Code Annotated § 40-33-210. The State concedes

that the premature sale of Watson’s property was improper and in violation of the stay

provided for in Tennessee Code Annotated § 39-11-708(c). In his appellate brief, Watson

argues the impropriety of the premature sale and argues, as he argued at the trial court level,

that the premature sale deprived the Department of Safety of jurisdiction and made the

administrative proceedings a nullity. As noted by the trial court below, Watson points to no

authority supporting his theory or detailing the consequences of a premature sale of seized

property. We agree with the trial court below that, had Watson prevailed in the forfeiture

proceedings, he would have had a claim against the Department of Safety under Tennessee

Code Annotated § 40-33-215 for the wrongful deprivation of his property. However, we find

no support for Watson’s argument that the premature sale of the property left the Department

of Safety without jurisdiction. Under the circumstances of this case, we agree with the trial

court that this argument must be rejected.

Watson also claims that he requested an accounting of the proceeds from the sale of his

property and that he was not provided this information. Watson points to no place in the

appellate record showing that he made such a request,10 and cites no authority for his

assertion that he is entitled to such an accounting, unless he had prevailed in the forfeiture

proceeding. He cites no authority detailing the consequences of the alleged failure to provide

such an accounting. Under these circumstances, this argument must be rejected.

Confiscation of Stolen Property, Dismissal of State Charges

Watson argues that the State was not authorized to seize or confiscate his property under

Tennessee Code Annotated § 40-17-118 because there is no evidence that any of the property

was stolen or related to illegal drugs. In support, he cites Cruse v. City of Columbia, 922

S.W.2d 492 (Tenn. 1996).

We agree with the trial court that neither Section 40-17-118 nor Cruse are applicable to the

case at bar. In Cruse, police had seized several items of jewelry, based on their suspicion

that the subject jewelry had been stolen. Cruse, 922 S.W.2d at 494. The theft charges

10

The record cite furnished by Watson to support his assertion that he asked for an itemization of the

proceeds of the sale does not support his assertion. The document at the page in the record cited by Watson

is an order by the ALJ denying Watson’s “Emergency Motion for Production of Property for Inspection.”

The order does not give the date of the “Emergency Motion,” but the ALJ order is dated March 12, 2005,

well after the sale of the property.

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against Cruse were eventually dismissed, but by that time, the jewelry was no longer in the

possession of government officials. Id. Under Section 40-17-118, Cruse was deemed to

have a cause of action for the value of the confiscated jewelry. The Cruse Court determined

that Section 40-17-118 gave rise to a separate cause of action for the return of confiscated

property and for damages in the event the property was damaged or destroyed. Id. at 496.

In the instant case, Watson’s property was not seized or confiscated as suspected stolen

property. Rather, Watson’s property was seized based on the allegation that the property was

procured in exchange for a controlled substance or with proceeds traceable to such an

exchange, pursuant to Tennessee Code Annotated § 53-11-451. Therefore, we agree with the

trial court that both Tennessee Code Annotated § 40-17-118 and Cruse are inapposite. This

argument must be rejected.

Watson also claims that the Department of Safety lost jurisdiction over the forfeiture

proceedings after the dismissal of the state drug charges against him. Once the state drug

charges were dismissed, Watson contends, the seized property could not be linked to any

violation of Tennessee drug laws, and thus was not subject to forfeiture. Watson contends

that his guilty plea on federal drug charges cannot support the forfeiture of his property.

We must respectfully disagree. The Department of Safety has broad power to determine

whether confiscated property is subject to forfeiture. Tenn. Code Ann. § 53-11-201 (2011);

see also Redd, 895 S.W.2d at 335. The dismissal of a criminal case does not divest the

authority of the Commissioner of Safety to determine whether personal property that has

been seized under Tennessee’s drug statutes should be forfeited. Hargrove v. State, No.

M2004-00410-COA-R3-CV, 2005 WL 2240970, at *2 (Tenn. Ct. App. Sept. 15, 2003). This

argument must be rejected as well.

Finally, Watson argues vigorously that the State did not meet its burden of proving by a

preponderance of the evidence that the seized property was related to his illegal drug activity

as opposed to his illegal theft. Watson again points to the dismissal of the state drug charges

against him, and contends that, in the face of that dismissal, the Department of Safety cannot

establish that the seized property was connected to activity that violates state drug laws.

Given the lengthy list of items seized, Watson argues, the evidence does not show that all of

the items were related to drug activity, instead of resulting from Watson’s lawful work or

inheritance.

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Preponderance of Evidence

On appeal, Watson notes that the state drug charges against him were dismissed. From this,

he argues that the seized property could not be related to any violation of Tennessee drug

laws, and therefore seizure and forfeiture of the property was not authorized under Tennessee

statutes. Watson argues that his guilty plea on federal drug charges does not support the

seizure or forfeiture of his property. Thus, he contends, the evidence preponderates against

the finding that the items of property seized and forfeited were connected to any violation of

Tennessee’s drug statutes.

Under Tennessee Code Annotated § 53-11-451(a)(6)(A), the State must prove by a

preponderance of the evidence that each item seized was either “furnished, or intended to be

furnished, in exchange for a controlled substance in violation of the Tennessee Drug Control

Act” or that each item was furnished with proceeds traceable to such an exchange.11 Tenn.

Code Ann. § 53-11-451(a)(6)(A) (2008); McEwen v. Tenn. Dep’t of Safety, 173 S.W.3d

815, 824 (Tenn. Ct. App. 2005). Thus, the State must establish that each item of the seized

property, more likely than not, was exchanged or intended to be exchanged in an illegal drug

transaction, or was traceable to such a transaction. McEwen v. Tenn. Dep’t of Safety, 173

S.W.3d 815, 824 (Tenn. Ct. App. 2005). Direct evidence,12 circumstantial evidence,13 or a

combination of the two may be employed by the State to carry its burden. Id. at 825.

The Supreme Court’s decision in Lettner v. Plummer, 559 S.W.2d 785 (Tenn. 1977), is

instructive. In Lettner, the State attempted to establish that cash found under a mattress in

the home of an elderly couple, in close proximity to illegal drugs, was subject to forfeiture.

Id. at 786. The Lettner Court held that it is not necessary for the State to trace each

individual item of property to specific drug sales. Id. at 787. The claimants proffered

testimonial evidence to support their assertion that the seized cash was procured by legitimate

means through loans and gifts. Id. at 786-87. However, other circumstantial evidence

11

If the State is able to meet this burden with respect to every item seized, the fact that the initial seizure

warrant also indicated that the property could be traceable to theft activities becomes irrelevant. Fuqua v.

Armour, 543 S.W.2d 64, 68 (Tenn. 1976); see Wood v. United States, 41 U.S. 342, 359 (1824) (“It is of no

consequence, whatsoever, what were the original grounds of the seizure, whether they were well founded

or not, if in point of fact the goods are by law subjected to forfeiture.”).

12

Direct evidence is evidence that which, if believed, establishes the main fact at issue without inference or

presumption. State v. Phillips, 138 S.W.3d 224, 231 (Tenn. Ct. App. 2003).

13

Circumstantial evidence is evidence of collateral facts and circumstances from which the trier of fact may

infer that the main issue is based on reason and common experience. Phillips, 138 S.W.3d at 231.

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tended to show that the cash was connected to illegal drug activity. Id. at 787. The

circumstantial evidence included evidence that there was a known drug operation in the

claimants’ home, several known drug users had visited the home while the seizure was taking

place, both defendants had at least one prior drug charge, weapons were in the home, and the

elderly couple were both unemployed and without any visible means of support. Lettner, 559

S.W.2d at 786. This evidence was deemed sufficient to support the forfeiture. Id. at 787.

In light of Lettner, we examine the evidence in the November 19, 2004 administrative

hearing before Judge LaFevor. Officer Wilson testified that Watson was unemployed with

no legal source of income, and that Watson was engaged in illegal drug trafficking at his

home during the months leading up to the search of his home and his arrest, including nine

transactions with a confidential informant. The items seized from Watson’s home included

drugs, drug paraphernalia, weapons, and substantial cash.14 On December 20, 2001, Watson

pled guilty to the federal drug charges.

Juxtaposed against Officer Wilson’s testimony is the complete absence of any evidence from

Watson. While Watson does not have the burden of showing that his property was

legitimately procured, once the State offered proof, Watson risked an adverse result by

failing to counter the State’s proof. At the hearing , Watson expressed frustration that he had

no documentary proof of how his property was procured because he was in prison and/or

because important legal documents were allegedly “stolen” by law enforcement officers

during the search and seizure operation in January 2001. However, Watson was present at

the hearing by telephone and was free to testify about how his procurement of the seized

items was unrelated to his drug activities, with or without supporting documentation. Watson

failed to do so.

After reviewing the evidence in the administrative record, the trial court below held: “On

this record, the Court cannot say that the factual or legal conclusions of the administrative

law judge were wrong.” We agree. Therefore, the trial court’s affirmance of the forfeiture

order must be affirmed.

14

The list of items seized also included numerous vehicles and tools arguably related to “chop shop”

activities.

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C ONCLUSION

The decision of the trial court is affirmed. Costs on appeal are assessed against Appellant

Bob Keith Watson, for which execution may issue if necessary.

___________________________

HOLLY M. KIRBY, JUDGE

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