FILED

March 2, 1998

Cecil W. Crowson

Appellate Court Clerk

IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE

PAGE G. STUART ) FOR PUBLICATION

)

Appellant ) FILED: MARCH 2, 1998 

)

v. ) DAVIDSON COUNTY 

)

STATE OF TENNESSEE ) HON. IRVIN H. KILCREASE, JR.,

DEPARTMENT OF SAFETY ) CHANCELLOR

 )

 Appellee ) NO. 01-S-01-9612-CH-00239

For Appellant: For Appellee:

RICHARD MCGEE JOHN KNOX WALKUP

JOHN E. RODGERS, SR. Attorney General and Reporter

Nashville, TN

MICHAEL E. MOORE

Solicitor General

GORDON W. SMITH

Associate Solicitor General

VICTOR S. JOHNSON, III

District Attorney General

JOHN C. ZIMMERMANN

Assistant District Attorney General

Nashville, TN

OPINION

AFFIRMED BIRCH, J.
1Stuart claimed the following property: 

$120,406 in U.S. currency, seized 9/8/92; 

$159,227 in U.S. currency, seized 9/9/92;

one 1993 GMC truck, seized twice, 11/9/92 and 5/21/93;

$3,000 in U.S. currency, seized 4/12/93;

$35,260 in U.S. currency, a quantity of burned U.S. 

currency (for which the police received a cashier’s check

for $8,820), and 100 boxes of sports cards, seized

5/21/93;

$315,000 in U.S. currency, seized 6/3/93; and 

two cashier’s checks for $3,000 and $5,000, seized 

6/18/93. 

2

During a wide-ranging investigation, law enforcement

officers located and seized several items of property thought to be

used in the conduct of an illegal drug enterprise. Criminal

charges followed the several seizures, and Page Stuart, the

appellant, pleaded guilty to offenses involving delivery and

conspiracy to deliver large quantities of marijuana. The State

thereafter instituted administrative proceedings under Tenn. Code

Ann. § 53-11-201 et seq. (1991 & Supp. 1992) for the forfeiture of

the property seized. Although Stuart challenged the forfeiture of

some of the property,1 he was not successful, and both the Chancery

Court and the Court of Appeals upheld the forfeiture.

We granted Stuart’s application for review under Rule 11,

Tenn. R. App. P., in order to address the following issues of

constitutional significance:

1. Whether Tennessee’s forfeiture

statutes impose “punishment” within the

meaning of the double jeopardy clauses of the

United States and Tennessee Constitutions,

such that forfeiture cannot follow a
2Stuart asserts that the forfeiture violates double jeopardy,

even though the final order of forfeiture was entered April 29,

1994, prior to his guilty pleas entered on June 15, 1994. As a

practical matter, the sequence of the State’s actions against

Stuart and his property dictates that the conviction is the

punishment he should assert places him in double jeopardy. Because

in any event we find that the forfeiture is not punishment for

double jeopardy purposes, we disregard this irregularity. 

3

conviction for the offenses involving the

forfeited property.2

2. Whether the forfeiture here imposed

constitutes an “excessive fine” as prohibited

by the Eighth Amendment to the United States

Constitution and Article I, § 16 of the

Tennessee Constitution.

Because we find that the Tennessee legislature clearly

intended that forfeiture be a civil, in rem proceeding, we hold

that forfeiture under Tenn. Code Ann. § 53-11-201 et seq. does not

impose “punishment” for the purposes of the double jeopardy clauses

of the Tennessee and United States Constitutions. Further, we hold

that the forfeiture of Stuart’s property did not violate the

excessive fines clauses of the Tennessee and United States

Constitutions. 

I

From June 1987 to March 1993, Stuart and several

accomplices were trafficking in large quantities of marijuana.

Stuart was indicted in April 1993 for his role in this conspiracy.
3Tenn. Code Ann. § 39-6-417(c)(M) (Supp. 1988) (repealed

1989).

4Tenn. Code Ann. § 39-17-417(j)(13).

5Tenn. Code Ann. § 39-17-417(i)(13).

 

4

On June 15, 1994, he pleaded guilty to three felony offenses:

conspiracy to deliver over 70 pounds of marijuana,3 conspiracy to

deliver over 700 pounds of marijuana,4 and delivery of over 70

pounds of marijuana.5 The third offense was based upon a March

1993 delivery of approximately 140 pounds of marijuana.

In the course of the investigation, law enforcement

officers conducted numerous searches of various homes and

properties, including some owned by Stuart. The searches,

conducted from September 1992 to June 1993, resulted in the seizure

of vehicles, other personal property, and over $840,000 in United

States currency. The currency claimed by Stuart was discovered in

various locations: on Stuart’s person, in his truck, in various

hiding places inside his home, within a hidden compartment in the

shed behind his girlfriend’s house, and buried in a North Carolina

cemetery, next to the graves of relatives.

Pursuant to the administrative procedures in Tenn. Code

Ann. § 53-11-201 (Supp. 1992), the State initiated proceedings in

the Tennessee Department of Safety for the forfeiture of the

property seized. Stuart did not present any evidence during these

proceedings. In the initial order filed December 22, 1993, the

administrative law judge made the following findings:
6The “sports cards” consisted of an extensive collection of

baseball, football, and basketball cards. 

5

[I]t is concluded that all of

the money claimed by Page Stuart,

along with the sports cards6 claimed

by him, were by a preponderance of

the evidence drug proceeds, or

purchased with drug proceeds, or

purchased with money so commingled

with drug proceeds as to make it for

all intents and purposes one and the

same and to render it all subject to

forfeiture under the law, absent

credible rebuttal evidence, which

was not forthcoming. . . . 

. . . 

Finally, it is concluded that

the preponderance of the evidence

presented in this case is that the

1993 GMC truck at issue was used to

facilitate the March, 1993,

transaction involving the sale of

140-142 pounds of marijuana. . . .

The use of the truck to go to San

Diego to set up the drug deal that

led to over 140 pounds of marijuana

being taken to Tennessee clearly

“facilitated” this transaction or

sale.

The administrative law judge also found that Stuart made

a lump sum payment of $20,000 for the 1993 GMC truck and received

a rebate of $2,139.37. With respect to Stuart’s yearly legitimate

income, evidence showed that he earned $31,568.07 in gross wages in

1988; $27,372 in 1989; $25,800 in 1990; $25,930 in 1991; $5,943 in

wages and pension income in 1992; and $2,640 in pension income in

1993. In addition, he withdrew $11,000 from his credit union

account in 1991 and $52,858.95 in 1992. Yet, his documented

expenses, including the seized currency for which he filed claims,

were $789,975.09 in 1992 and $413,930 in 1993. These expenses
6

exceeded his 1992 and 1993 legitimate income by over 1.1 million

dollars. 

In the final order dated April 29, 1994, the Commissioner

of the Tennessee Department of Safety adopted the administrative

law judge’s findings of fact and conclusions of law. The chancery

court considered Stuart’s petition for review and affirmed the

order of the Commissioner. The Court of Appeals affirmed the

chancery court judgment. Because the constitutional issues in this

case are solely questions of law, our review is de novo. State v.

Davis, 940 S.W.2d 558, 561 (Tenn. 1997). 

II

The double jeopardy clause of the Fifth Amendment to the

United States Constitution, applicable to the states through the

Fourteenth Amendment, provides that no person shall “be subject for

the same offense to be twice put in jeopardy of life or limb

. . . .” Article 1, § 10 of the Tennessee Constitution provides

that “no person shall, for the same offence, be twice put in

jeopardy of life or limb.” As we have stated often and most

recently in State v. Denton, 938 S.W.2d 373, 378 (Tenn. 1996),

three fundamental principles underlie double jeopardy:

(1) protection against a second prosecution after an acquittal;

(2) protection against a second prosecution after conviction; and

(3) protection against multiple punishments for the same offense.

Stuart asserts that forfeiture subsequent to conviction constitutes
7

a second punishment imposed for the same offense--a violation of

the third double jeopardy protection enunciated in Denton.

In United States v. Ursery, 518 U.S. 267, 116 S. Ct.

2135, 2138, 135 L. Ed.2d 549, 557 (1996), the United States Supreme

Court held that civil forfeiture generally does not constitute

punishment for the purposes of the federal constitution’s double

jeopardy clause. The Court further found that the federal

forfeiture provisions at issue were civil rather than criminal in

nature, thus, not punishment for double jeopardy purposes. Id. at

__, 116 S.Ct. at 2149, 135 L. Ed.2d at 571. The appellant asks

this Court to reject the reasoning of Ursery and to find

forfeitures under the Tennessee forfeiture statute criminal in

nature. 

Once it is determined that multiple punishments have been

imposed upon a defendant, the Tennessee Constitution does indeed

provide a greater measure of protection against double jeopardy

than does the United States Constitution. See Denton, 938 S.W.2d

at 381-82. However, in addressing the initial question of what

constitutes punishment, this Court has previously followed a

federal standard. See State v. Conley, 639 S.W.2d 435, 436-37

(Tenn. 1982) (revocation of driver’s license is not punishment);

Metropolitan Gov’t of Nashville and Davidson County v. Miles, 524

S.W.2d 656, 660 (Tenn. 1975) (imposition of fine for violation of

city ordinance is punishment). Furthermore, the test delineated in

Ursery is consistent with the standard previously utilized by this

Court: 
7We also note that the numerous jurisdictions previously

addressing this issue invariably follow Ursery. See, e.g., Wilhite

v. State, 689 So.2d 221, 224 (Ala. Crim. App. 1996); Sims v. State,

930 S.W.2d 381, 382-83 (Ark. 1996); State v. McGough, 924 P.2d 633,

635 (Idaho Ct. App. 1996); State v. Predka, 555 N.W.2d 202, 212

(Iowa 1996). 

8

[N]ot every deprivation visited upon

one who violates the state’s laws is

to be considered “punishment” for

purposes of applying the double

jeopardy clause. Thus, it is

recognized . . . that the double

jeopardy clause did not prevent a

second action that is “remedial in

nature” and not intended to have the

effect of inflicting “punishment”

upon the individual in order to

vindicate public justice.

Conley, 639 S.W.2d at 436; see also Miles, 524 S.W.2d at 660. 

Accordingly, we will rely on the two-part Ursery test in

order to determine whether forfeiture under Tennessee law

constitutes punishment for the purpose of double jeopardy.7 Under

the first prong, we must determine whether the legislature intended

forfeiture proceedings to be criminal or civil. Under the second

prong, we must consider whether “the clearest proof” demonstrates

that, despite legislative intent, the forfeiture proceedings are so

punitive in fact that they cannot be legitimately viewed as civil

in nature. Ursery, 518 U.S. at __, 116 S. Ct. at 2147, 135 L.

Ed.2d at 568-69. 

Considering the first prong of the Ursery test in the

context of Tennessee’s forfeiture statutes, it is clear that the

Tennessee legislature intended these forfeiture proceedings to be

civil rather than criminal. Three reasons support this conclusion.
8Other procedural provisions further demonstrate that the

forfeiture statutes are civil in nature. First, forfeiture

proceedings require neither scienter nor actual notice to the

affected person. The Department of Safety needs only to make a

“reasonable effort” to notify the property owner “by furnishing all

parties known to have an interest in the conveyance with a copy of

the receipt.” Tenn. Code Ann. § 53-11-201(a)(1)(C) (Supp. 1992).

9

First, forfeiture under Tennessee law is an action in rem. This

Court has regarded forfeiture under the Tennessee statutes as an

action in rem for a considerable length of time. See Fuqua v.

Armour, 543 S.W.2d 64, 68 (Tenn. 1976) (“A forfeiture proceeding

such as this is an action in rem and jurisdiction of the Court

depends upon its actual or constructive custody of the property

being forfeited, ordinarily acquired by virtue of its previous

seizure.”). Moreover, Tenn. Code Ann. § 53-11-451(b) (1991) states

that property may be seized “upon process issued by any circuit or

criminal court having jurisdiction over the property.” (emphasis

added). Thus, it is the property itself which is targeted, not the

owner of the property. In contrast to the in personam nature of

criminal actions, in rem actions are traditionally viewed as civil

proceedings, with jurisdiction dependent on the seizure of a

physical object. Ursery, 518 U.S. at __, 116 S. Ct. at 2147, 135

L. Ed.2d at 568 (quoting United States v. One Assortment of 89

Firearms, 465 U.S. 354, 363, 104 S. Ct. 1099, 1105, 79 L. Ed.2d

361, 369 (1984)). 

Second, the procedures delineated in the relevant

statutes support the conclusion that the Tennessee legislature

intended forfeiture proceedings to be civil rather than criminal

actions. The most significant procedural indication of such an

intent is the allocation of the burden of proof.8 The State has a
Indeed, the property may be subject to forfeiture even if no claim

is ever filed and the State never shows a connection between the

property and a particular person. Ursery, 518 U.S. at __, 116 S.

Ct. at 2149, 135 L. Ed.2d at 570; Tenn. Code Ann. § 53-11-203

(1991). Moreover, when a motor vehicle is seized, the law

enforcement agency may pursue the forfeiture proceeding through

“either an administrative agency or through a court having civil

jurisdiction . . . .” Tenn. Code Ann. § 53-11-201(k)(Supp. 1992)

(emphasis added).

10

less onerous burden--that of proving only by a preponderance of the

evidence that the property is subject to forfeiture. Tenn. Code

Ann. § 53-11-201(d)(2) (Supp. 1992). This is to be contrasted with

the State’s burden in criminal proceedings--proof beyond a

reasonable doubt. 

The third supporting reason is the explicit language of

Tenn. Code Ann. § 53-11-403 (1991), which provides:

Any penalty imposed for violation of

parts 3 and 4 of this chapter or

[title 39, chapter 17, part 4] is in

addition to, not in lieu of, any

civil or administrative penalty or

sanction otherwise authorized by

law.

(emphasis added). Admittedly, part 4 of chapter 11 is titled

“Criminal Penalties and Enforcement,” and Tennessee’s forfeiture

statutes are found in parts 2 and 4 of chapter 11. However, the

criminal penalties to which this title refers are separate and

distinct from forfeiture. Criminal penalties are imposed by part

4 for various criminal conduct, such as acquiring prescription

drugs by fraud or dispensing prescription drugs in violation of

part 3, “Regulations and Registrations.” See Tenn. Code Ann. §§

53-11-401 and -402 (1991). Tennessee Code Annotated § 53-11-403
11

explains that these penalties are in addition to administrative

penalties such as forfeiture. Thus, the legislature’s intent to

make forfeiture proceedings civil is abundantly clear.

The second prong of the Ursery test requires us to

determine whether Tennessee’s forfeiture proceedings are so

punitive in form and effect as to overcome our legislature’s intent

and render the proceedings criminal. The forfeiture proceedings

must be shown by the “clearest proof” to be punitive in order to

overcome legislative intent. Ursery, 518 U.S. at __, 116 S. Ct. at

2148, 135 L. Ed.2d at 569. No such proof exists. We discern no

substantive difference between Tennessee’s forfeiture statutes and

the federal statutes at issue in Ursery. Thus, the reasoning with

respect to the punitive effect of the forfeiture statutes in Ursery

is fully applicable here. 

While all forfeiture statutes no doubt have certain

punitive aspects, they also serve important nonpunitive goals.

First, requiring the forfeiture of property used to commit drug

violations serves the remedial goal of encouraging property owners

to make sure the property is not used for illegal purposes.

Second, the forfeiture may also abate a nuisance. With respect to

proceeds, the forfeiture serves the nonpunitive goal of ensuring

that persons do not profit from their illegal acts. Id. at __, 116

S. Ct. at 2148-49, 135 L. Ed.2d at 569-70. Finally, while

forfeitures may fairly be said to serve the purpose of deterrence,

this fact does not transform forfeiture into a criminal penalty.

Indeed, all civil penalties have some deterrent effect. If a
12

sanction must be solely remedial to avoid violating the double

jeopardy clause, then no civil penalties would be beyond the scope

of the Clause. Hudson v. United States, __ U.S. __, 118 S. Ct.

488, 495, 139 L. Ed.2d 450, 461 (1997).

Under the Supreme Court’s two-part test in Ursery, then,

we conclude that forfeiture under Tenn. Code Ann. § 53-11-201 et

seq. is a civil in rem proceeding and does not constitute

punishment for purposes of either the state or federal double

jeopardy clause. 

III

The second issue Stuart raises is whether the forfeiture

of his currency, truck, and sports cards constitutes an excessive

fine, in violation of the Tennessee and United States

Constitutions. Article I, § 16 of the Tennessee Constitution and

the Eighth Amendment to the United States Constitution both provide

that excessive bail “shall not be required, nor excessive fines

imposed, nor cruel and unusual punishments inflicted.” This Court

has previously construed the cruel and unusual punishment clause of

Article I, § 16 to be coextensive with its federal counterpart.

State v. Harris, 844 S.W.2d 601, 603 (Tenn. 1992); State v. Black,

815 S.W.2d 166, 188-89 (Tenn. 1991). Accordingly, we will construe

the excessive fines clause of Article I, § 16 in the same manner.

While forfeiture is not necessarily a criminal action for

purposes of the double jeopardy clause, forfeiture is, at least in
9Most courts that have considered this issue have held that

the forfeiture of proceeds is not punishment. Cole, 906 P.2d at

935 n.10 (collecting cases). 

13

part, a punitive measure. As a result, the excessive fines clause

applies even to civil in rem forfeitures of property. Austin v.

United States, 509 U.S. 602, 621-22, 113 S. Ct. 2801, 2812, 125 L.

Ed.2d 488, 505-06 (1993). However, neither the Austin Court nor

any Tennessee court has established a test for determining what

constitutes an excessive fine. Thus, we must now define such a

standard. 

As a threshold matter, we find that the proceeds of

illegal drug transactions are not subject to an excessive fines

analysis under Austin. The forfeiture of such proceeds is not

punitive because the claimant was never legally entitled to them,

in the same way that a bank robber is not entitled to the stolen

money. United States v. Tilley, 18 F.3d 295, 300 (5th Cir.), cert.

denied, 513 U.S. 1015 (1994). Thus, forfeiture of drug proceeds is

purely remedial in nature. United States v. Salinas, 65 F.3d 551,

554 (6th Cir. 1995); see also State v. Cole, 906 P.2d 925, 934-36

(Wash. 1995).9

In this regard, Austin is partially distinguishable from

the instant case because the forfeited properties in Austin, a

mobile home and auto body shop, were used in furtherance of drug

transactions; they were not proceeds of drug transactions. Austin,

509 U.S. at 604-05, 113 S. Ct. at 2803, 125 L. Ed.2d at 494. In

contrast, in the case under review the administrative law judge

found that 
10See United States v. Chandler, 36 F.3d 358, 365 (4th Cir.

1994), cert. denied, 514 U.S. 1082 115 S. Ct. 1792, 131 L. Ed.2d

721 (1995); In re King Properties, 635 A.2d 128, 133 (Pa. 1993).

11The majority of jurisdictions have adopted some form of the

hybrid test. See, e.g., Wojnar v. City of Tarpon Springs, 684

So.2d 197, 199 (Fla. Ct. App. 1996); Thorp v. State, 450 S.E.2d

416, 419-20 (Ga. 1994); People ex rel. Waller v. 1989 Ford F350

14

all of the money claimed by Page

Stuart, along with the sports cards

claimed by him, were by a

preponderance of the evidence drug

proceeds, or purchased with drug

proceeds, or purchased with money so

commingled with drug proceeds as to

make it for all intents and purposes

one and the same and to render it

all subject to forfeiture . . . .

The definition of “proceeds” includes not only cash but also

property secured with the proceeds of illegal activity. Salinas,

65 F.3d at 554. Therefore, the excessive fines clauses of both the

United States and Tennessee Constitutions do not apply to the

forfeiture of Stuart’s currency and sports cards because the

administrative law judge found them to either be proceeds or

purchased with proceeds. Consequently, the truck, which the

administrative law judge found to have been used to facilitate a

drug transaction, is the only property subject to an excessive

fines analysis.

Considering the forfeiture of Stuart’s truck in the

context of excessive fines, jurisdictions that have established an

excessive fines test generally divide into two categories: those

adopting the instrumentality test proposed by Justice Scalia in

Austin,

10 and those adopting a multifactored hybrid of the

instrumentality and proportionality tests.11 Under the
Truck, 642 N.E.2d 460, 466 (Ill. 1994); State v. Harold, 671 N.E.2d

1078, 1082 (Ohio Ct. App. 1996). 

15

instrumentality test, the issue is not the monetary worth of the

forfeited property; rather, the issue is how closely related the

property is to the underlying offense. For example, a set of

scales used to measure contraband is forfeitable whether made of

the purest gold or the basest metal. Austin, 509 U.S. at 627-28,

113 S. Ct. at 2815, 25 L. Ed.2d at 509 (Scalia, J., concurring).

A proportionality analysis, which stems from the United States

Supreme Court’s approach to the cruel and unusual punishment

clause, essentially compares the value of the forfeited property

with the gravity of the criminal conduct. United States v. 11869

Westshore Drive, 70 F.3d 923, 927 (6th Cir. 1995), cert. denied, __

U.S. __, 117 S. Ct. 57, 136 L. Ed.2d 20 (1996). 

Various courts have expressed concern over the difficulty

in applying both the instrumentality and the proportionality

approaches. The proportionality approach makes the excessive fines

analysis very fact-specific, thus providing less guidance and

uniformity. See Wojnar, 684 So.2d at 201 (Altenbernd, J.,

concurring and dissenting). Yet, proportionality analysis is an

effective mechanism for restraining the State, which has a strong

pecuniary incentive to confiscate the most property--and the most

valuable property--possible. See Thorp, 450 S.E.2d at 419.

Further, relying solely on the instrumentality test may

not be fully consistent with the reasoning in Austin. The majority

in Austin based the application of the excessive fines clause on
16

the ground that the forfeiture served, at least in part, to punish

the owner. Because the property owner is the person punished, it

would be illogical not to consider the owner’s culpability in

determining whether the forfeiture is excessive. Additionally,

“the very word ‘excessive’ plainly contemplates some comparison of

the fine to the conduct sought to be punished in order to determine

if the fine violates the Eighth Amendment.” Id. at 418. 

Finally, we note that Tennessee’s forfeiture statutes

embrace the proportionality approach. Under Tenn. Code Ann. § 53-

11-451(a)(4)(C)(Supp. 1997), the simple possession of a small

amount of drugs or drug paraphernalia cannot trigger a forfeiture

action. Apparently, the legislature has determined that forfeiture

would be disproportionate to those crimes. 

Therefore, we conclude that any analysis under the

excessive fines clause must include a proportionality test.

Although the multifactored analysis is described in various ways,

courts consistently utilize the following factors: 

(1) the harshness of the penalty

compared with the gravity of the

underlying offense; 

(2) the harshness of the penalty

compared with the culpability of the

claimant; and

(3) the relationship between the

property and the offense, including

whether use of the property was (a)

important to the success of the

crime, (b) deliberate and planned or

merely incidental and fortuitous,

and (c) extensive in terms of time

and spatial use. 
17

E.g., 11869 Westshore Drive, 70 F.3d at 928; United States v. 6625

Zumirez Drive, 845 F. Supp. 725, 732 (C.D. Cal. 1994). No single

factor is dispositive. Id. 

In considering the gravity of the offense under the first

factor, several general principles guide our analysis:

(1) intentional conduct is more serious than negligent conduct;

(2) completed crimes are more serious than attempted crimes; and

(3) violent crimes are more serious than nonviolent crimes. Id. at

733. Here, the administrative law judge found that the truck had

been used to further a high-volume drug transaction--unquestionably

a grave offense. Further, the transaction was both intentional and

complete. Finally, while drug violations are not per se violent

crimes, it is worth noting that violence is often part of a highvolume drug trafficking enterprise. 

When analyzing the culpability of the claimant under the

second factor, there are also certain principles that guide our

analysis: (1) the claimant acquitted of an offense is regarded as

the least culpable; (2) the claimant convicted of an offense is

the most culpable; and (3) the claimant never charged with an

offense must be presumed innocent. See id. Here, Stuart was

convicted for the underlying drug offenses. In fact, he pleaded

guilty to three felony drug offenses and did not at any time

contest the evidence against him during the forfeiture proceedings.

Thus, in this regard Stuart falls into the “most culpable”

category. 
12If the claimant’s finances are not considered,

proportionality analysis will generally permit the forfeiture of

property from persons of lesser means, while prohibiting forfeiture

from persons of greater means. Wojnar, 684 So.2d at 200

(Altenbernd, J., concurring and dissenting).

18

When determining the harshness of the penalty imposed

under the first and second factors of the excessive fines analysis,

courts should consider the monetary value of the property

forfeited, particularly in light of the claimant’s financial

resources. A forfeiture is less likely to be excessive when the

claimant has the financial ability to replace the property without

undue hardship. Conversely, a forfeited vehicle may be worth

little, but undue hardship may still result if the claimant’s

family cannot afford to replace it and has no other means of

transportation.12 Finally, the intangible value of the forfeited

property should be considered. For example, real property,

especially a home, has a higher intangible value than personal

property. 6625 Zumirez Drive, 845 F. Supp. at 734.

In the instant case, Stuart purchased the truck in 1992

for approximately $18,000. The record does not reveal the truck’s

value at the time of forfeiture. With respect to financial

resources, the administrative law judge found that Stuart’s yearly

legitimate income varied from approximately $26,000 to $59,000 from

1988 to 1992. In 1993, he earned only $2,640 from his pension.

Meanwhile, evidence suggests that he was spending or hiding

hundreds of thousands of dollars in both 1992 and 1993. Further,

no evidence suggests that forfeiture of the truck will impose an

extreme hardship on Stuart or any other member of his family.

Based on the foregoing, we cannot say that the deprivation of one
19

moderately expensive vehicle is a particularly harsh penalty. 

 

In sum, because the offense was intentional, complete,

potentially violent, and involved a major conspiracy to sell large

quantities of marijuana, the offense is serious. Furthermore,

Stuart, who pleaded guilty to the underlying offense, is

unquestionably most culpable. In comparison, the penalty is not

particularly harsh. This conclusion is buttressed by the fact that

Stuart’s expenditures exceeded his legitimate income by hundreds of

thousands of dollars in the two years preceding his arrest. And

while the record does not reveal the truck’s value at the time of

forfeiture, it is undoubtedly dwarfed by the value of the large

quantities of marijuana Stuart has admitted to smuggling into the

United States. 

The third factor of the excessive fines analysis is the

relationship between the property and the offense. Under this

factor, we inquire whether the property was important to the

success of the criminal activity. The administrative law judge

found that the forfeited truck was used to facilitate a

transaction involving 140 pounds of marijuana. Apparently, the

truck was used as Stuart’s transportation from Nashville,

Tennessee, to San Diego, California, to arrange the transaction,

not to actually transport the marijuana. Thus, the importance of

the truck to the success of the transaction is minimal, in that any

vehicle could have served this purpose. However, the use of the

truck was clearly deliberate and planned. As to the extent of the

use of the truck, there is proof only with respect to the one
20

transaction involving 140 pounds of marijuana. While this is only

a single event, Stuart drove the truck all the way from Nashville

to San Diego to make the arrangements. Clearly, a cross-country

drive in the truck is extensive both in terms of time and “spatial

use.”

In conclusion, the factors weigh in favor of allowing the

forfeiture of the 1993 GMC truck. While the importance of the

truck to the success of Stuart’s drug transaction may be minimal,

other facts strongly indicate that the forfeiture of the truck is

not unconstitutionally excessive. In light of the gravity of the

offense, Stuart’s culpability, the moderate effect of the

forfeiture here imposed, and the deliberate and extensive use of

the truck, the forfeiture does not violate the excessive fines

clause of either the Tennessee or United States Constitution. 

Accordingly, and for the reasons herein stated, the

judgment of the Court of Appeals is affirmed. Costs are taxed

against the appellant, for which execution may issue if necessary.

___________________________________

ADOLPHO A. BIRCH, JR., Justice

CONCUR:

Anderson, C.J.

Drowota, Reid, Holder, JJ.