The opinion of the court was delivered by: THOMAS A. WISEMAN, JR.
On February 27, 1991, three police officers seized $ 9000.00 in United States currency from Willie L. Jones at the Nashville International Airport. The currency was subsequently the subject of summary forfeiture proceedings by the Drug Enforcement Administration (DEA) of the United States Department of Justice. In this action, Mr. Jones seeks the return of his currency and declaratory relief against the officers-- Claude Byrum and Stephen Wood of the Metropolitan Nashville Police Department and Taran Perry of the Metropolitan Airport Authority-- and the DEA. The case was tried to the Court on September 17-23, 1992, after the Court orally denied both parties' Motions for Summary Judgment.
This Memorandum constitutes the Court's Findings of Fact and Conclusions of Law. For the reasons described below, the Court concludes that the Government failed to carry its burden of establishing probable cause for the forfeiture, and orders the Government to restore $ 9,000.00 to Mr. Jones. The Court grants Mr. Jones a declaratory judgment that officers of the Drug Interdiction Unit (DIU) seized his currency in violation of his Fourth Amendment rights, but denies his request for injunctive relief against the DIU.
1. In the afternoon of February 27, 1991, Willie Jones came to the American Airlines ticket counter where a ticket agent, Mary Lou Wadley, was working. He told Ms. Wadley his name, and that he had reservations on a flight to Houston. He did not ask to check any luggage, and carried one small overnight bag. Ms. Wadley verified his identity with his driver's license and a credit card, and told him that the ticket would cost $ 267.00; Mr. Jones handed her the payment in cash. Ms. Wadley had become concerned by now, because she felt that Mr. Jones appeared to be nervous, and looked behind himself often. The airport was in a heightened state of security because of Operation Desert Storm, and Ms. Wadley decided to discuss her concerns about Mr. Jones with her supervisor. She told Mr. Jones that she was unsure how to handle a cash payment, and stepped into a back room where her supervisor told her that no action was necessary because Mr. Jones had a return ticket. On her return, Mr. Jones, in an attempt to alleviate any problems posed by his cash payment, offered to write a check instead. Ms. Wadley told him that everything was in order, issued him the ticket, and instructed him that the plane would depart from gate C-8. At some point, Ms. Wadley informed the lead ticket agent of her concerns. See Record at 5-15 (testimony of Mary Lou Wadley); id. at 210-212, 290-292 (testimony of Willie Jones).
2. Although the testimony at trial regarding Mr. Jones's appearance at the ticket counter was contradictory, the Court finds that he did behave nervously. Ms. Wadley says that he appeared nervous, and that this motivated her to speak with her supervisors. Mr. Jones denies that he was behaving in a nervous manner. Ms. Wadley specifically testified, however, that the cash payment and the short stay in Houston did not concern her, and there was no evidence of other factors which would explain why she alerted her supervisors about Mr. Jones. The Court credits her testimony, therefore, and concludes that Mr. Jones appeared to be nervous at the ticket counter.
The lead agent to whom Mary Lou Wadley had spoken at the American Airlines counter placed a call to the Drug Interdiction Unit office, located in the parking garage at the Nashville Airport. Sergeant Claude Byrum answered the phone, and the lead agent told him of Mr. Jones's nervousness. She also gave Sergeant Byrum Mr. Jones's name, flight information, a description of his physical characteristics and clothing, and she told Sergeant Byrum that Mr. Jones had paid cash for his ticket. Sergeant Byrum left the office to locate Mr. Jones. See Record at 17-18, 20, 74-77 (testimony of Sergeant Claude Byrum).
3. Sergeant Byrum met two other officers of the Drug Interdiction Unit, Officers Taran Perry and Steve Wood of the Metropolitan Nashville Airport Authority, inside the airport terminal between the ticket counters and Concourse C. Sergeant Byrum related to his fellow officers the information he had received, and the men spotted Mr. Jones departing the security checkpoint and beginning to walk down the concourse. Officer Wood remained behind at the checkpoint to speak with the checkpoint employees, while Sergeant Byrum and Officer Perry followed Mr. Jones. See Record at 18-21, 77-79 (testimony of Sergeant Byrum).
4. Passing through the checkpoint had been uneventful for Mr. Jones. The magnetometer did not go off as he walked through it, and he permitted the attendant to open and inspect his carry-on bag. Later, Mr. Jones recalled seeing Officer Woods at the checkpoint. Officer Woods asked the attendant who had inspected the overnight bag what it contained, and she told him that it contained personal items, some clothing, and a paper with numbers written on it. See Record at 213, 294-95 (testimony of Mr. Jones); id. at 471-73 (testimony of Officer Wood).
The demonstration challenged Sergeant Byrum's and Officer Perry's testimony, and the Court finds that the officers in fact did not observe a bulge on Mr. Jones until sometime later. It is hard to believe that Sergeant Byrum could see a bulge from the money pouch on Mr. Jones as he walked down the concourse away from Sergeant Byrum and was 40-50 feet ahead of him, when Sergeant Byrum couldn't see the bulge from the money pouch in the courtroom when he was within 5 feet of Mr. Jones. As for Mr. Jones's "pooched out" jacket, the Court finds that this effect was probably just the natural posture of a person who is carrying an overnight bag in one hand, with nothing in the other to act as a counterweight. The empty hand tends to hang away from the body slightly (as shown in Plaintiff's Exhibits 8A-G).
See Record at 21-22, 25-26, 28-29, 83-88, R127-28 (testimony of Sergeant Byrum); id. at 291-93 (testimony of Mr. Jones); id. at 419-24, 435-36 (testimony of Officer Perry); compare Plaintiff's Exhibit 25 (the black nylon money pouch with tissue paper) to Defendants' Exhibits 16 and 17 (photographs showing the currency which the money pouch contained).
6. Mr. Jones continued down the concourse toward gate C-8, and then entered the men's restroom. Sergeant Byrum, believing that he recognized Mr. Jones as a man named "Little" who had been a suspect in a case involving drugs, followed Mr. Jones into the bathroom. Upon closer observation, Sergeant Byrum realized that he had been mistaken. Mr. Jones left the restroom and walked down to gate C-8. See Record at 21-23, 79 (testimony of Sergeant Byrum); id. at 213, 295-96 (testimony of Mr. Jones).
7. At the gate, Mr. Jones sat with his back to the windows which faced the airport ramp. The police officers sat facing him across the concourse in the passenger area for gate C-6, and observed him. The officers each testified that Mr. Jones sat straight in his seat and looked around the departure lounge nervously as they watched him. At some point, the officers testified, Mr. Jones spotted them watching him, and he focussed his attention on them. Mr. Jones denied acting in this fashion, and stated that he sat slightly twisted in his chair in order to observe the movements of airplanes and tractors on the ramp outside the window. He recalled being particularly interested in the airlines' use of Koboda tractors, because such tractors are used in landscaping.
Although the Court credits the officers' testimony, their observation of Mr. Jones's nervousness lacks significant probative weight. The testimony, which was credible on both sides, is easily reconciled. The officers' observations are not entirely inconsistent with the appearance from across an airport concourse of a man who is behaving as Mr. Jones claimed to have behaved. It is also a reasonable inference that a person sitting alone in an airport departure lounge would find the fixed attention of three strangers to be curious. Nervousness, particularly at the time in question, is also not a distinguishing characteristic. People who travel by air infrequently are often nervous about their trip and the dangers, real or imaginary, which air travel poses to them. In addition, the testimony of Mary Lou Wadley, and indeed, that of the officers themselves, established that people at the airport were anxious about travel during the period of the Desert Storm war. The Court concludes that although the officers may have observed what they took to be "hawking," this observation is of relatively low probative value. See Record at 23-26, 80-83 (testimony of Sergeant Byrum); id. at 213-28, 296 (testimony of Mr. Jones); id. at 418-419 (testimony of Officer Perry); id. at 474-76 (testimony of Officer Wood); Plaintiff's Exhibits 8A-B (photographs of Mr. Jones); Defendants' Exhibits 8-11 (photographs of the departure lounge at gate C-8).
8. Sergeant Byrum and Officer Wood left Officer Perry where they were sitting, approached Mr. Jones, addressed him by name, and introduced themselves. He was surprised that the two men knew who he was. They asked him if he would step aside to a more private area, and he agreed. Mr. Jones claimed to have seen Sergeant Byrum's gun when the officer introduced himself and his partner. The testimony on this point at trial was in dispute, however. Sergeant Byrum testified that the gun was not visible, and that he takes care to hide it because passersby may become alarmed at the sight of a man in plain clothes carrying a gun in the secured parts of the airport.
The Court finds that the gun was, in fact, visible to Mr. Jones as he was seated in the departure lounge. Sergeant Byrum carried his gun in a position from which it could be readily observed by someone seated and able to see inside his right front jacket. Although Sergeant Byrum may be careful to conceal it from the general public, there was no need for such precautions when he approached Mr. Jones, because Mr. Jones's back was to the window. It would have been impossible for bystanders to see the gun unless they were sitting next to Mr. Jones. Nevertheless, the Court finds that Mr. Jones's consent to walk with and speak with the officers and to accompany them to the jetway was voluntarily given. See Record at 26-29, 57-58, 88-90, 128-29 (testimony of Sergeant Byrum); id. at 218, 296-300 (testimony of Mr. Jones); id. at 476 (testimony of Officer Wood); Defendants' Exhibit 17 (photograph of Sergeant Byrum, with his jacket off and with the gun visible).
9. The officers led Mr. Jones across the concourse to gate C-9, at which there were relatively few people. Officer Perry joined his companions, and the three men passed through double glass doors into the empty jetway. See Record at 29-32, 89-91 (testimony of Sergeant Byrum); id. at 218-19, 220-21, 299-302 (testimony of Mr. Jones); id. at 434-35 (testimony of Officer Perry); id. at 476-79 (testimony of Officer Wood).
10. Once in the jetway, Sergeant Byrum told Mr. Jones that the three officers were investigating the movement of drugs and currency through the airport, and asked to see Mr. Jones's airline ticket. Mr. Jones produced the ticket, which Sergeant Byrum examined. Sergeant Byrum observed that Mr. Jones's hands shook as he handed over the ticket. Sergeant Byrum could see that Mr. Jones's destination was Houston, that there was a short turnaround in Houston, and that the ticket was issued in Mr. Jones's name. He handed the ticket to Officer Wood, and asked Mr. Jones for his driver's license. Mr. Jones produced the license, and Sergeant Byrum confirmed Mr. Jones's identity.
Sergeant Byrum asked Mr. Jones for permission to search his carry-on bag, and Mr. Jones assented. At this point, the evidence produced at the trial begins to diverge. Sergeant Byrum testified that he requested permission to search both Mr. Jones's bag and person, and that Mr. Jones consented. Mr. Jones testified that Sergeant Byrum did not mention searching his person, and that his subsequent consent did not extend to such a search.
Mr. Jones's testimony on this point was the most credible, and the Court finds that he consented to a search of his carry-on bag, and was not asked for consent to search his person. It is likely that Mr. Jones would more readily consent to a search of his bag than of his person, too-- in fact, he had already consented to one search of his bag a mere five minutes before at the security checkpoint, and the second search would invade his privacy to no greater extent. Additionally, the officers waited several minutes before conducting a search of Mr. Jones's person. In light of their stated suspicions, it is unlikely that had they already obtained permission to search him, they would have waited as long as they did before patting him down.
While this was going on, Mr. Jones stood with his back to the jetway, and Sergeant Byrum stood in front of him. Officer Wood knelt to Sergeant Byrum's right as he searched the bag, and Officer Perry stood between and behind his two companions.
Mr. Jones testified that in addition to these innocuous questions, a more accusatory conversation also took place. According to Mr. Jones, Sergeant Byrum stated: "If you've got it, you might as well pull it out. Where is it?" Mr. Jones replied: "Where is what?" Sergeant Jones answered: "Don't play games. We're going to search you anyway." Sergeant Byrum denies that this conversation took place, but the conversation is consistent with the uncontradicted testimony regarding other statements the officers made.
The testimony was consistent, however, that at some point, Sergeant Byrum asked Mr. Jones whether he was carrying any drugs or currency.
Mr. Jones stated that he didn't know what "currency" meant. Sergeant Byrum asked: "How many thousands are you carrying or packing on your body?" The police officers testified that Mr. Jones pulled out his wallet, showed them the money it contained, and told them: "Here's my money." Mr. Jones denies showing them his billfold. By all accounts, the officers had at this time focussed their attention on whether or not Mr. Jones carried contraband-- either drugs, or drug-connected money. The Court finds that the incident with the billfold is not material. Moreover, it is understandable that a person carrying a large sum of money may act deceptively; for example, they might suspect that renegade police officers or imposters are "shaking them down," and they may wish to hide their property as eagerly as from a criminal.
Sergeant Byrum and Officer Perry next turned to Mr. Jones's person. Sergeant Byrum or Officer Perry asked Mr. Jones to remove his jacket, and he did. Upon Mr. Jones's removing his jacket, the officers observed a bulge on Mr. Jones's left side. The stories of the parties diverge again at this point. According to Sergeant Byrum, Officer Perry reached over to Mr. Jones's left side, patted the object forming the bulge, and asked: "What's this?" Sergeant Byrum testified that either he or Officer Perry next asked Mr. Jones if he would remove the object, and Mr. Jones complied. Officer Perry's story differs from that of Sergeant Byrum. According to Officer Perry, he patted Mr. Jones on the left side with his own left hand while asking Mr. Jones "What's this?" Mr. Jones then raised his left arm halfway, pulled his shirttail out, and reached for the object. As he did so, Officer Perry blocked Mr. Jones's left arm with his own right arm, reached across Mr. Jones's body with his right arm, and pulled the pouch from his waistband. Mr. Jones offers a third version of events. According to him, Officer Perry patted first his right, and then his left side. Officer Perry then told Mr. Jones to raise his arm, and he complied. As he did, Officer Perry pulled Mr. Jones's shirttail out, reached across and grabbed the pouch.
The two witnesses with the best recollection of the events were Mr. Jones and Officer Perry, who were the participants in the search. Sergeant Byrum's recollection of the events was unconvincing, and inconsistent with those of the other men. Both Officer Perry and Mr. Jones agree that Officer Perry said "what's this," reached across Mr. Jones's body, and pulled out the pouch. They disagree about whether Officer Perry patted Mr. Jones's right side, about whether Officer Perry instructed Mr. Jones to raise his left arm, and about which one pulled Mr. Jones's shirttail out. The Court finds, based on the testimony of these two witnesses, that Officer Perry patted Mr. Jones's left side only, that Mr. Jones pulled out his own shirttail. Once he had ready access to the pouch, Officer Perry pulled it out from beneath Mr. Jones's waistband.
Officer Perry then asked Mr. Jones if he could inspect the pouch. Mr. Jones did not reply.
Officer Perry unzipped the pouch, and saw the currency it contained. Sergeant Byrum asked Mr. Jones if the currency belonged to him. Mr. Jones answered that it did. Sergeant Byrum then asked Mr. Jones how much money there was in the pouch, and he testified that Mr. Jones responded that he did not know. According to Mr. Jones, he did not respond because he was unsure of Sergeant Byrum's intentions. The Court credits Mr. Jones's testimony on this issue. As discussed above, Sergeant Byrum's testimony on the encounter in the jetway was less credible than that of the other participants, possibly because of the large number of similar incidents in which he has been involved. Furthermore, Mr. Jones's professed unresponsiveness is consistent with his subsequent behavior.
The witnesses also disagree on when Mr. Jones's airline tickets were returned to him. Mr. Jones stated that he did not receive them back until he reached the Drug Interdiction Unit office. Officer Wood testified that he "believed" that Mr. Jones received the ticket and driver's license in the jetway. Sergeant Byrum was unsure when this took place. Given the equivocal testimony of the police officers, the Court finds that the officers retained Mr. Jones's ticket and driver's license until they permitted him to leave the Drug Interdiction Unit office.
For evidence relating to the searches, see Record at 32-41, 47, 91-104, 133 (testimony of Sergeant Byrum); id. at 219-20, 221-27, 302-11 (testimony of Mr. Jones); id. at 423, 436-44 (testimony of Officer Perry); id. at 479-83, 488 (testimony of Officer Wood); Defendants' Exhibit 12 (photograph showing the inside of the jetway at gate C-9, facing the departure lounge).
11. After discovering the money, Sergeant Byrum told Mr. Jones that he was detaining the money, and asked Mr. Jones if he would accompany the officers back to the Drug Interdiction Unit Office. Because the officers now possessed not only his currency, but his airline ticket and driver's license, Mr. Jones agreed, and the four men left the jetway and began to walk to the office. See Record at 41-42, 47, 103-104 (testimony of Sergeant Byrum); id. at 228, 310-11 (testimony of Mr. Jones); id. at 444 (testimony of Officer Perry); id. at 481 (testimony of Officer Wood).
12. They walked down the concourse back to the Drug Interdiction Unit office in the parking garage outside the airport's front entrance. Mr. Jones and Sergeant Byrum walked in front, with Officer Perry bringing up the rear.
As they walked, Sergeant Byrum questioned Mr. Jones. He began by asking Mr. Jones what his plans were in Houston. Mr. Jones responded that he was going to buy shrubs and bushes for his landscaping business. Sergeant Byrum asked how Mr. Jones intended to make these purchases within the hour and a half between his scheduled arrival and departure. Mr. Jones did not respond. Sergeant Byrum asked Mr. Jones if he knew anyone in Houston. Mr. Jones responded that he did not. Sergeant Byrum asked Mr. Jones if he knew anyone in Texas whom Officer Wood could call on his mobile telephone to verify Mr. Jones's plans. Finally, Sergeant Byrum asked Mr. Jones how he planned to get the shrubs he was to purchase back to Nashville, and sarcastically asked if he would take them on the plane with him. The testimony at trial on Mr. Jones's response to these last two questions is contradictory. Sergeant Byrum testified that Mr. Jones responded to both, stating that he knew of nobody to call, and that he intended to return to Houston at a later date with a truck in which he would carry the shrubs back to Nashville. Mr. Jones and the two other officers all recalled, however, that Mr. Jones ceased to answer Sergeant Byrum's questions long before the final, sarcastic question about returning with them on the airplane. Mr. Jones testified that by then he had concluded that the officers were not crediting his responses, and that they were "playing games" with him. The Court finds that Mr. Jones did not respond at all to the last two questions.
In addition to the foregoing narrative, the basic structure of which all witnesses agree upon, Mr. Jones testified that two side conversations took place. In the first, an unknown officer asked if the "dog is on duty." To this, another unknown officer responded: "Yes, and he hasn't been fed today." Officer Perry denied that the conversation took place, reasoning that all of the officers knew that the dog was on duty, because Officer Perry was the dog's handler. Officer Wood testified that he did not remember if this conversation took place. Although it is not a material fact, the Court finds, based on the credible testimony of Mr. Jones, that the conversation did take place. It is quite clear from the testimony that the officers' behavior at this point was casual and sarcastic, that they believed that the seizure of the currency was all but a fait accompli, and that they cared little for Mr. Jones's feelings of insecurity. Officer Perry's explanation is unconvincing; the question "Is the dog on duty?" was directed rhetorically at Mr. Jones, and its intended effect was not to find out if, in fact, the dog was on duty.
This insecurity and concern were manifest in the second side conversation, which Mr. Jones recounted. At some point, after he had looked behind him several times at Officer Perry, Officer Perry asked him why Mr. Jones was looking at him. Mr. Jones responded that he was doing this because Officer Perry had the currency. At trial, Mr. Jones explained that he feared that the officers might split up and run from him once they left the terminal building, and he wanted to be sure that he knew where Officer Perry was so that he could chase the one carrying his money. No witness contradicted Mr. Jones's testimony regarding this conversation.
For testimony on the events on the walk from gate C-9 to the Drug Interdiction Unit office, see Record at 42-43, 105-106 (testimony of Sergeant Byrum); id. at 228-34, 311-16 (testimony of Mr. Jones); id. at 445-46 (testimony of Officer Perry); id. at 484-85 (testimony of Officer Wood).
13. Upon their arrival at the Drug Interdiction Unit office, Sergeant Byrum sat at his desk and instructed Mr. Jones to sit in a chair beside the desk. Officer Wood asked Officer Perry to get his drug dog, and they stepped out of the office, carrying the pouch. Sergeant Byrum continued to question Mr. Jones, and took down notes of the conversation. After obtaining Mr. Jones's address and business card, Sergeant Byrum asked him whether he had made purchases in Houston before and whether he knew anyone there. Mr. Jones responded negatively to both questions. Mr. Jones provided Sergeant Byrum with a business card, and several names as references, including Thomas Gentry, who is a business associate of Mr. Jones, Raul Camacho, who is a former customer of Mr. Jones and a member of the Metropolitan Nashville Police Department's Vice Squad, and an FBI agent, who is another former customer. From the business card, Sergeant Byrum also obtained the name and phone number of Barbara Fitzpatrick, an acquaintance of Mr. Jones.
At some point, Sergeant Byrum asked Mr. Jones if he had ever been arrested on drug charges in the United States. Mr. Jones stated that he had not. Officer Wood then performed a search for outstanding warrants on the computer terminal in the office, and told Sergeant Byrum that Mr. Jones was "clean."
Immediately outside the office, the other officers were conducting a test using a narcotics-trained dog named Dakota. Officer Wood took the pouch and placed it alongside the building while Officer Perry, Dakota's handler, retrieved the dog from its kennel adjoining the office. Officer Perry instructed the dog to "find it," and set the dog to work among the trash and other articles against the building. Dakota, who is trained to react "passively" to narcotics, laid down in front of the pouch, signalling that he had smelled narcotics. The officers hid the pouch again and repeated the test, and Dakota again reacted to the pouch containing the money.
Mr. Jones, who had become convinced that he would be arrested, asked the officers if they were going to take him into custody. Sergeant Byrum replied that there were no grounds on which to arrest him, and jokingly said: "Now you can go to Texas."
Mr. Jones left the office, exchanged his ticket for cash at the American Airlines ticket counter, and drove away in his truck. After driving on the freeway for several minutes, he stopped and telephoned George Alexander. Mr. Jones had been concerned that the officers might steal some of the money, and after speaking to Mr. Alexander, Mr. Jones returned to the Drug Interdiction Unit office.
Mr. Jones repeated his request that the Officers count the money and provide him with a receipt describing the total, but the officers again refused. At some point, Sergeant Byrum offered to add a note to the receipt stating that there were nine bundles of currency, but he eventually changed his mind, and refused to amend the receipt at all.
For evidence on the events which occurred at the Drug Interdiction Unit office, see Record at 47-54, 109-123, 134-35 (testimony of Sergeant Byrum); id. at 234-39; 319-25 (testimony of Mr. Jones); id. at 414-18; 429-33 (testimony of Officer Perry); id. at 470-71; 489 (testimony of Officer Wood); Defendants' Exhibit 13 (Sergeant Byrum's notes of his conversation with Mr. Jones); Plaintiff's Exhibit 11 (the receipt for the currency); Defendants' Exhibits 15 (photograph of Mr. Jones seated at Sergeant Byrum's desk), 16 (photograph of Officer Perry, holding the sealed evidence bag containing the currency, and Dakota), and 17 (photograph of Sergeant Byrum seated, holding the evidence bag containing the currency).
14. Mr. Jones offered into evidence a copy of an internal DEA memorandum, from Sanford A. Angelos, Forensic Chemist, to Benjamin Perillo, Laboratory Chief of the DEA's North Central Laboratory, reporting the results of chemical trace analyses on batches of United States currency, and similar tests performed on belts used in currency sorting machines in use at Federal Reserve Banks. The report found that "one-third [contamination] of a randomly selected sample is a significant argument that the general currency in circulation is contaminated with traces of cocaine. The amount of the cocaine detected ranged from 2.4 to 12.3 nanograms per bill." In addition, the belts from the sorting apparatus were contaminated with an estimated 200 nanograms detected. Mr. Angelos concluded:
The results, from the samples received from the Chicago Federal Reserve Bank, confirms the presence of traces of cocaine on general circulation U.S. currency. Moreover, the results indicate that the Federal Reserve Bank itself may be contaminating the currency through the normal procedures used by the bank. The belts must be initially contaminated by the currency, then in turn the belts will contaminate "clean" currency. These results indicate the termination of the project as all aspects show that the forensic usefulness of trace analysis is at best limited.
Plaintiff's Exhibit 18, at 3.
15. From January 27, 1991, through February 1, 1991, Shelby State Community College presented a seminar entitled "Bid Simulation and Project Management Retreat" at the Doubletree Hotel in Nashville, under the auspices of the Tennessee Department of Transportation and the Federal Highway Administration Supportive Services Program for Disadvantaged Business Enterprises. Mr. Jones stated that he and his friend George Alexander attended the seminar. According to Mr. Jones, the two met some men there who had been involved in the landscaping business, and who were from Houston. These men told Mr. Jones and Mr. Alexander that nurseries in the Houston area sold hollies and other shrubs at attractive prices. Mr. Jones claimed that the men gave him a list of nurseries to visit, and that he contacted them before his planned trip.
The Defendants attacked this explanation on several fronts. First, they offered the testimony of Shirley Ann Iter Brooks, the seminar coordinator with Shelby State Community College, who produced a list of the participants at the seminar who signed the register. None of the participants was from outside of Tennessee, and the sole out-of-state presenter was from Atlanta, Georgia. In addition, although Mr. Alexander's name appears on the roster along with that of his wife, Mr. Jones's name is not listed.
More damaging to Mr. Jones's testimony was the evidence regarding his contacts with Houston nurseries. He claimed to have called the four nurseries listed for him by the seminar participant from Texas, yet the only record of such contacts is from March, 1991, nearly a month after the planned trip and the cash's seizure. Mr. Jones placed phone calls to Greenstock Nurseries, of Huffman, Texas, and Hardin Wholesale, of Houston, on March 18, 1991. In a pretrial affidavit, he claimed to have been placed on Greenstock's mailing list in February, 1991, and received a brochure from that company mailed on March 25, 1991.
The Court finds that the seminar explanation is not credible. Although the seminar's coordinators did not require participants to sign in every day, Mr. Jones's absence from the list strongly suggests that he did not attend. The March, 1991, phone calls to Texas nurseries, followed a week later by Greenstock's mailing, strongly suggests that Mr. Jones's first contacts with the nurseries occurred after the seizure, and not before. There are several ways to reconcile the evidence in Mr. Jones's favor, however, the most plausible conclusion-- and the Court's finding-- is that Mr. Jones created the story after the seizure to support his claim that the trip had a legitimate purpose.
See Record at 146-62, 183-84, 186-87, 189, 271-73 (testimony of Mr. Jones); id. at 337 (testimony of Mr. Gentry); id. at 365, 398-402, 411 (testimony of Mr. Alexander); Defendants' Exhibit 31 (deposition of Ms. Brooks); Defendants' Exhibit 28 (Mr. Jones's telephone records); Defendants' Exhibit 29 (Mr. Jones affidavit, with the mailing from Greenstock Nurseries attached as Exhibit 2); Plaintiff's Exhibits 12, 13, 14-A and -B, and 15 (seminar materials provided by Mr. Alexander).
16. The weaknesses in Mr. Jones's story regarding the Doubletree seminar notwithstanding, it is clear from the evidence presented at trial that Mr. Jones's primary business is as a landscaper, and that his business, albeit small, is bona fide. The evidence at trial demonstrated unequivocally that Mr. Jones operates a small landscaping business, and serves as a subcontractor on contracts of Thomas Gentry and Associates, and Landau Landscaping (owned and operated by Mr. Alexander).
In an attempt at discrediting Mr. Jones's stated intention to purchase plants in Houston, the Defendants introduced evidence that Mr. Jones rents some land and a small garage on Murfreesboro Road in Nashville from William Mesner. The shop contains, among other things, landscaping tools, and the evidence indicates that although plants are not kept in the ground as inventory at this location, they are stored at that location ...