Procedure and Proof in Civil Drug Forfeitures, 0517 SCBJ, SC Lawyer, May 2017, #24

AuthorKate Wrenn, Sydni Kallam and Russell Ghent, J.

Procedure and Proof in Civil Drug Forfeitures

Vol. 28 Issue 6 Pg. 24

South Carolina BAR Journal

May, 2017

Kate Wrenn, Sydni Kallam and Russell Ghent, J.


Government forfeiture actions in the state courts of South Carolina are civil proceedings brought against a backdrop of various forms of specific unlawful or criminal conduct. This can involve anything from operating chop shops to gambling, from gang activity and human trafficking to selling counterfeit goods, and from using a vehicle to commit a grand larceny to cases involving drugs.1 The statutes vary as to rules of procedure that govern them.

For example, the issue of both legal and illegal gambling in South Carolina has gone back and forth in our legislature and in the courts.2 Today gambling forfeitures are not uncommon in our state courts though statutory procedural provisions specific to gambling forfeitures are minimal. As a result, procedures in drug forfeiture cases are deemed to be a de facto “default” setting for confirmation of seizures and forfeitures of gambling property and monies.

The criminal drug statutes of South Carolina are grounded in a federal statute passed in 1971,3 one which sought a comprehensive answer to rising levels of drug-related crimes, unlawful drug use and addiction. The statute was passed by Congress and signed by the President amid great hopes and media fanfare. It included the first declaration of a “War on Drugs” at a national level, re-declared under the Reagan presidency and notably reassessed at a broad level during the past four years.

The South Carolina statute has provisions that use terms from the federal drug offense statute as to the status of property taken and held as a result of a drug seizure.

Property subject to forfeiture and process for seizure

South Carolina’s state drug forfeiture statute details property that, if it is involved in illegal narcotics and controlled substances activity, is “subject to forfeiture.” The specifics are broad. Furthermore, in detailing property that is subject to forfeiture, the legislature has chosen words of description, “all” or “any,” which would have the widest application in litigating issues concerning property that may be held forfeit in a state civil proceeding.

Such property specifically includes (1) controlled substances manufactured, distributed, dispensed or acquired in violation of the narcotics and controlled substances statute; (2) raw materials, products and equipment of any kind that are used “or positioned for use” in making or delivering illegal drugs; (3) property used or positioned for use as containers for illegal drugs; (4) real and personal property knowingly used to facilitate the process of making, selling or distributing narcotics or controlled substances; (5) any books, records and research materials for use in the process of making illegal drugs; (6) conveyances defined to include everything from trailers and aircraft to cars and boats that are used or intended for use for any illegal activity from concealment to transportation; (7) monies, negotiable instruments, securities and other things of value used or to be used as mediums of exchange for controlled substances and proceeds in real and personal property that is “traceable” to any drug dealing activity; and (8) all monies seized “in close proximity” to forfeit able controlled substances or activity related to the manufacturing or distribution of same, “and all monies seized at the time of arrest or search involving violation of this article.”4

It should be noted that controlled substances listed in Schedules I and II of the act are deemed to be contraband per se and are “summarily forfeited to the State” under Section 44-53-530 (e), as are species of plants from which those controlled substances may be derived.

Federal case law dating back to the 19th century established a “taint-theory” in forfeitures that is included in both the federal and in our state drug forfeiture statutes. This is essentially a “relation back” concept under which title and interest in property obtained by criminals through unlawful means vests in the government upon the commission of the first act giving rise to forfeiture.5

In line with the logic of this doctrine, there is an express statutory exception in our state statute to application of the law of replevin,6 a cause of action initiated for return of property wrongfully taken from the complainant. Under a “taint” theory, the property subject to forfeiture in South Carolina is not only “forfeited and transferred to the government at the moment of illegal use,”7 but state seizure and forfeiture proceedings that follow are to “confirm the transfer” and the lawfulness of conduct undertaken by law enforcement in making the seizure.

There are provisions under subsection (b) of the same article that allow for seizure of property without process under certain specified circumstances. The property may be seized in this fashion if it occurs incident to an arrest or execution of a search warrant or administrative inspection warrant; if the State has obtained a prior judgment against the property in a criminal injunctive or forfeiture proceeding under the act; if the state Department of Health and Environmental Control (DHEC) has probable cause to believe that the property is directly or indirectly dangerous to health or safety; or if DHEC has probable cause to believe the property was used or is intended for use in violation of the act.

Forfeiture procedures, proof and parties

S.C. Code Section 44-53-520(c) provides that “[i]n the event of a seizure pursuant to subsection (b), proceedings under Section...

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