Vol. 4, No. 1, Pg. 16. Taking the Profit Out of Drugs: The Civil Forfeiture Statute in South Carolina.

• Author: By Sean Kittrell

South Carolina Lawyer

1992.

Vol. 4, No. 1, Pg. 16.

Taking the Profit Out of Drugs: The Civil Forfeiture Statute in South Carolina

16Taking the Profit Out of Drugs: The Civil Forfeiture Statute in South CarolinaBy Sean KittrellDuring the past 18 months, South Carolina law enforcement authorities seized more than $3,295,000 in cash, as well as cars, parcels of land, houses, mobile homes, motorcycles, trucks, boats, airplanes, ongoing business operations, bank accounts, jewelry and countless items of personal property from drug dealers.

To encourage aggressive action against drugs by law enforcement officers and solicitors, recent amendments to the civil forfeiture statutes permit the law enforcement agency that conducted the investigation leading to the seizure to retain 75% of the forfeited assets for drug enforcement purposes. The prosecuting agency receives 20% and the remaining 5% goes to the state's general fund.

The amendments to the civil forfeiture statute have created a potent weapon in the seemingly futile effort to suppress the drug trade. The philosophical predicate behind the forfeiture law is simple--dealers are not only punished criminally but their profits are taken as well. Forfeiture thus serves as a strong disincentive. The convicted offendercannot get out of prison and have a reserve fund waiting to finance large scale distributions of controlled substances. The state's use of drug traffickers' money to fund the drug war's investigative efforts against them adds a nice twist as well.

This article presents an overview of South Carolina civil forfeiture statutes on seizure of drug-related assets, reviews the mechanisms of forfeiture and considers some potential constitutional issues and defenses. The provisions discussed below were modeled on existing federal legislation, and federal case law on forfeitures has been included for analytical purposes.

Legal Overview

Forfeiture is "the divestiture without compensation of property used in a manner contrary to the laws of the sovereign."United States v. Eight Rhodesian Stone Statues, 449 F.Supp. 193 (1978). Civil forfeitures are in rem proceedings brought against the property itself rather than the person of the defendant. Jennings v. Carson, 8 U.S. 2 (1807); Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663 (1974).

The property is considered to be "guilty" of the offense against the state. Goldsmith-Grant Co. v. United States, 254 U.S. 505 (1921). The legal theory is that because the property was used contrary to the laws of the state, the right to ownership passes to the government. A statute must specifically authorize the taking, and the statutory scheme must be followed with "reasonable strictness." United States v. Charles D. Kaier, Co., 61 F.2d 160 (3rd Cir. 1932); United States v. Farrell, 606 F.2d 1341 (D.C. Cir. 1979).

Thus, before title can vest in the state following a seizure, there must be almost exact

18 compliance with the law authorizing the forfeiture--similiar to cases invalidating delinquent tax sales where the state failed to comply with the statutory arrangement. See Osborne v. Vallentine, 196 S.C. 90, 12 S.E.2d 856 (1941).

Forfeiture to the state is deemed to occur at the time the property was illegally used, under the "Relation Back Doctrine." United States v. Stowell, 133 U.S. 1 (1890), codified at S.C. Code Ann. § 44-53-520(d), although innocent purchasers are protected. See § 44-53-586.

Items Subject to Seizure

Items that may be seized under the South Carolina Civil Forfeiture can be separated into four groups:

* items that relate to production and transportation,

* items that facilitate sale and distribution,

* items that relate to administrative record keeping and

* proceeds and profits.

* Items that relate to production and transportation. Controlled substances seized by law enforcement are considered contraband per se; therefore no right to ownership in them exists. One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S.§ 693 (1965). No constitutional issues arise with regard to fourth amendment (unreasonable seizures) and fifth amendment (procedural due process) rights.

In addition, controlled substances are by statute summarily forfeited to the state, without notice or a right to a hearing, under the theory that the state has the right to protect the publicfrom inherently dangerous substances. §§ 44-53-520(a)(1), 44-53-520(e) and 44-53-520(f); Ewing v. Mytinger & Cassel-berry, Inc., 399 U.S. 594 (1950). Because the raw materials, equipment and products used to manufacture or produce controlled substances are also subject to forfeiture (§ 44-53520(a)(2)), laboratory supplies, ether, test tubes--and even a backhoe or tractor--may be taken under the theory that they were used to produce drugs.

The containers used to hold controlled substances or equipment may also be taken. § 44-53520(a)(3). The state may take an airplane, a drum, a car, a boat or even a house if it is proved that the property in question was used to store or hold a controlled substance.

Any vehicle that facilitates...