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State v. Marshall6/3/2005
FACTS
From the sparse record on appeal, it appears that the appellant, suspected of driving under the influence , was stopped by Gallatin Police Officer Eben Bates on July 9, 2004. Although the appellant apparently was not arrested, his vehicle and a large sum of cash in the vehicle were seized by Officer Bates. The record contains a forfeiture affidavit detailing the events surrounding the seizure:
On Friday, July 9th, 2004, at approximately 2146, I, Officer Eben Bates, was dispatched to the area of Nashville Pike and Brown's Lane, Gallatin, TN, Sumner County, in reference to a possible intoxicated driver. The complainant stated that a blue Toyota Corolla, TN license plate #QHA928, was driving erratically inbound toward Gallatin. I made contact with the vehicle and observed the vehicle to cross over the white line with the right tires and then immediately cross over the yellow centerline with it's left tires. I conducted a traffic stop with the vehicle in the parking lot of Walgreens at W. Main and Maple.
I made contact with the driver, Lucian Henry Marshall III. I explained the reason I stopped him and he stated that he had not been drinking and that he had just left work. Marshall then gave consent to a search of the vehicle. I located a small black case with a large sum of cash inside. I asked Marshall where the money came from and he told me it was from gambling and that he had a lot of pay role checks in there also. I read Marshall his Miranda Rights and then asked him again about the money. Marshall stated, "I won the money from shooting dice and playing the numbers at a number house." He continued to say that he traveled to these houses in Nashville, Lebanon, Gallatin, and "all around", to shoot dice, play the numbers, and gamble. The money was counted and totaled $11,050.00, which was rolled in individual denominations of money. Also in the case were fourteen non-cashed pay role checks from IBP Tyson Foods. Marshall's money was seized in accordance with T.C.A. 39-17-502 and T.C.A. 39-11-703, with the moneys being illegal proceeds of gambling.
On Monday, July 12th 2004, Marshall came to the Gallatin Police Department and spoke with Investigator Shane Woodard and Captain Denise Thrasher in attempt to get his money back. He told the Investigator and Captain that he wished he had not told me the money was from gambling and should have told me something different on the night of the stop. When Investigator Woodard asked where he did get the money he again stated that he gained the money over several games of shooting dice.
The record also contains a Notice of Property Seizure and Forfeiture of Conveyances form signed by the appellant on July 9, 2004, detailing that the appellant's 1988 Toyota Corolla and $10,998.00 in cash had been seized and noting that because it was a "Category IV" seizure, the appellant should "refer to instructions provided by seizing agency for filing a claim on the above property." A forfeiture warrant finding probable cause to believe that $11,050.00 was subject to forfeiture as proceeds from gambling pursuant to Tennessee Code Annotated sections 39-17-502 and 39-11-703, was signed by the trial court on July 16, 2004.
On August 30, 2004, the trial court entered an order, "approved for entry" by the State and the appellant's counsel, stating that the parties had agreed that $3050.00 and the vehicle would be returned to the appellant, while $8000.00 would be retained by the Gallatin Police Department Drug Fund. It is from that order the appellant now appeals to this court.
ANALYSIS
The appellant, now represented by different counsel, asserts that the agreed order shou
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