Seizure of Controlled Substances and Related Property

The sheriff is authorized, upon process issued by the court having jurisdiction over the property, to seize:

1. All controlled substances that have been manufactured, distributed, dispensed or acquired in violation of Title 39, Chapter 17, Part 4 or Title 53, Chapter 11, Parts 3 and 4;
2. All raw materials, products and equipment of any kind that are used, or intended for use, in manufacturing, compounding, processing, delivering, importing or exporting any controlled substance in violation of Title 39, Chapter 17, Part 4 or Title 53, Chapter 11, Parts 3 and 4;
3. All property that is used, or intended for use, as a container for the property described above;
4. All conveyances, including aircraft, vehicles or vessels, that are used, or are intended for use, to transport, or in any manner to facilitate the transportation, sale or receipt of the property described above;
5. All books, records, and research products and materials, including formulas, microfilm, tapes and data that are used, or intended for use, in violation of Title 39, Chapter 17, Part 4 or Title 53, Chapter 11, Parts 3 and 4;
6. Everything of value furnished, or intended to be furnished, in exchange for a controlled substance in violation of the Tennessee Drug Control Act of 1989, compiled in Title 39, Chapter 17, Part 4, and Title 53, Chapter 11, Parts 3 and 4, 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, compiled in Title 39, Chapter 17, Part 4, and Title 53, Chapter 11, Parts 3 and 4; and
7. All drug paraphernalia as defined by T.C.A. § 39-17-402.

T.C.A. § 53-11-451(a). See Payne v. Breuer, 891 S.W.2d 200, 203 (Tenn., 1994) (The above statute clearly requires that a warrant be obtained prior to any seizure made under it unless one of the stated exceptions applies.).

Seizure without process may be made if:

1. The seizure is incident to an arrest or a search under a search warrant or an inspection under an administrative inspection warrant;
2. The property subject to seizure has been the subject of a prior judgment in favor of the state in a criminal injunction or forfeiture proceeding based upon Title 39, Chapter 17, Part 4, or Title 53, Chapter 11, Parts 3 and 4;
3. The sheriff has probable cause to believe that the property is directly or indirectly dangerous to health or safety; or
4. The sheriff has probable cause to believe that the property was used or is intended to be used in violation of Title 39, Chapter 17, Part 4, or Title 53, Chapter 11, Parts 3 and 4.

T.C.A. § 53-11-451(b). In Fuqua v. Armour, 543 S.W.2d 64, 68 (Tenn. 1976), the Tennessee Supreme Court held that T.C.A. § 52-1443(b)(4) [the earlier version of T.C.A. § 53-11-451(b)(4)] is constitutional only if the statute is construed to include an "exigent circumstances" requirement. The court stated:

T.C.A. § 52-1443(b)(4) should not be construed as authorizing the seizure of an automobile without a warrant under circumstances such as those disclosed in the facts of this case. The fact that probable cause exists for seizure is not enough; there must also exist “exigent circumstances”; therefore, T.C.A. § 52-1443(b)(4) should be construed as authorizing a seizure without a warrant, upon probable cause, only when “exigent circumstances” exist justifying summary seizure. “No amount of probable cause can justify a warrantless search or seizure, absent ‘exigent circumstances.’” Coolidge v. New Hampshire, [403 U.S. 443, 468 (1971)]. Thus construed and restricted, T.C.A. § 52-1443(b)(4) may constitutionally be applied.

Fuqua, 543 S.W.2d at 68.

Property taken or detained by the sheriff under T.C.A. § 53-11-451 is not subject to replevin but is deemed to be in the custody of the sheriff subject only to the orders and decrees of the court that has jurisdiction over the property. T.C.A. § 53-11-451(d). See State v. Vukelich, 2002 WL 31249910 (Tenn. Crim. App. 2002) (property held in custodia legis, or in the custody of the law). When the sheriff seizes property under Title 39, Chapter 17, Part 4, or Title 53, Chapter 11, Parts 3 and 4, the sheriff may (1) place the property under seal, (2) remove the property to a place designated by the sheriff; or (3) take custody of the property and remove it to an appropriate location for disposition in accordance with law. T.C.A. § 53-11-451(d). Regardless of any other method of disposition of the property, the sheriff may, with the permission of the court and under such terms and conditions as are approved by the court, use the property taken or detained in the drug enforcement program of the county. In addition, with the approval of the court having jurisdiction over the property, the sheriff may sell the property and use the proceeds for the drug enforcement program of the county. T.C.A. § 53-11-451(d)(4). See State v. Blackmon, 78 S.W.3d 322, 332 (Tenn. Crim. App. 2001) (judicial authorization to use seized property).

Pursuant to T.C.A. § 40-33-201, all personal property, including conveyances, subject to forfeiture under the provisions of T.C.A. § 53-11-451 shall be seized and forfeited in accordance with the procedure set out in Title 40, Chapter 33, Part 2. See also Rules of Tennessee Department of Safety Administrative Division, CHAPTER 1340-2-2, The Rules of Procedure for Asset Forfeiture Hearings.