Current Status Bill Number:View additional legislative information at the LPITS web site.2155 Ratification Number:445 Act Number:404 Introducing Body:House Subject:Relating to the enforcement of laws governing controlled substances
(A404, R445, H2155)
AN ACT AMEND SECTION 44-53-480, AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE ENFORCEMENT OF LAWS GOVERNING CONTROLLED SUBSTANCES, SO AS TO GIVE TO OFFICERS OF THE DEPARTMENT OF NARCOTICS AND DANGEROUS DRUGS OF THE SOUTH CAROLINA LAW ENFORCEMENT DIVISION AUTHORITY TO EXECUTE AND SERVE SEARCH, ARREST, AND ADMINISTRATIVE INSPECTION WARRANTS, SUBPOENAS, AND SUMMONSES; TO AMEND SECTION 44-53-520, RELATING TO FORFEITURE OF PROPERTY WITH RESPECT TO CONTROLLED SUBSTANCES, SO AS TO MAKE ADDITIONAL PROPERTY SUBJECT TO FORFEITURE AND TO REQUIRE THAT COPIES OF REPORTS OF FORFEITED PROPERTY BE PROVIDED THE DIVISION OF GENERAL SERVICES AND TO SPECIFY THE CONTENTS OF THE REPORT; TO AMEND SECTION 44-53-530, RELATING TO FORFEITURE PROCEDURES AND DISPOSITION OF FORFEITED PROPERTY, SO AS TO CLARIFY JUDICIAL FORFEITURE PROCEDURES, AND TO PROVIDE THAT THE FIRST THOUSAND DOLLARS OF CASH SEIZED AND FORFEITED SHALL REMAIN THE PROPERTY OF THE SEIZING AGENCY; TO AMEND SECTION 44-53-580, RELATING TO DISPOSITIONS OF FINES AND OTHER MONIES, SO AS TO DELETE SURPLUS LANGUAGE; TO AMEND SECTION 44-53-582, RELATING TO THE REQUIREMENT THAT FUNDS USED BY LAW ENFORCEMENT OFFICERS TO PURCHASE CONTROLLED SUBSTANCES BE RETURNED TO THE UNIT OF GOVERNMENT FURNISHING THE FUNDS, SO AS TO PROVIDE THAT THE FUNDS MAY BE RETURNED TO THE APPROPRIATE AGENCY OF LOCAL GOVERNMENT; TO AMEND SECTION 44-53-584, RELATING TO THE REPORT REQUIRED BY AGENCIES RECEIVING FORFEITED PROPERTY, SO AS TO PROVIDE THAT THE DIVISION OF GENERAL SERVICES SHALL MAINTAIN THE REQUIRED RECORDS; TO AMEND SECTION 44-53-586, RELATING TO NOTICE TO INNOCENT OWNERS OF PROPERTY SUBJECT TO FORFEITURE, SO AS TO CLARIFY NOTICE PROCEDURES AND THE RIGHTS OF INNOCENT OWNERS; AND TO AMEND SECTION 44-53-588, RELATING TO DISPOSITION OF PROCEEDS OF THE SALE OF FORFEITED PROPERTY, SO AS TO ELIMINATE VARIOUS REPORTING REQUIREMENTS AND TO PROVIDE FURTHER FOR THE DISPOSITION OF FORFEITED PROPERTY PREVIOUSLY TRANSFERRED TO THE STATE TREASURER.
Be it enacted by the General Assembly of the State of South Carolina:
Authority
SECTION 1. Section 44-53-480 of the 1976 Code, as last amended by Act 143 of 1985, is further amended by adding a new item at the end of subsection (a) to read:
"(4) Have the authority to execute and serve search warrants, arrest warrants, administrative inspection warrants, subpoenas, and summonses."
Subject to forfeiture
SECTION 2. Section 44-53-520 of the 1976 Code is amended to read:
"Section 44-53-520. (a) The following are subject to forfeiture:
(1) all controlled substances which have been manufactured, distributed, dispensed, or acquired in violation of this article;
(2) all raw materials, products, and equipment of any kind which are used, or which have been positioned for use, in manufacturing, producing, compounding, processing, delivering, importing, or exporting any controlled substance in violation of this article;
(3) all property which is used, or which has been positioned for use, as a container for property described in items (1) or (2);
(4) all property, both real and personal, which facilitates production, manufacturing, distribution, sale, possession, containment, concealment, importation, exportation, transportation, or delivery of various controlled substances as defined in this article;
(5) all books, records, and research products and materials, including formulas, microfilm, tapes, and data which are used, or which have been positioned for use, in violation of this article;
(6) all conveyances including, but not limited to, trailers, aircraft, motor vehicles, and watergoing vessels which are used or intended for use unlawfully to conceal, contain, or transport or facilitate the unlawful concealment, possession, containment, or transportation of controlled substances and their compounds, except as otherwise provided, must be forfeited to the State. No motor vehicle may be forfeited to the State unless it is found to conceal, contain, or transport one pound or more of marijuana, one pound or more of hashish, more than four grains of opium, more than two grains of heroin, more than four grains of morphine, more than ten grains of cocaine, or more than fifty micrograms of lysergic acid diethylamide (LSD) or its compounds. The quantities set forth refer to controlled substances or any combination of such substances;
(7) all property including, but not limited to, monies, negotiable instruments, securities, or other things of value furnished or intended to be furnished by any person in exchange for a controlled substance, and all proceeds including, but not limited to, monies, and real and personal property traceable to any exchange;
(8) all monies seized in close proximity to forfeitable controlled substances, drug manufacturing, or distributing paraphernalia, or in close proximity to forfeitable records of the importation, manufacturing, or distribution of controlled substances and all monies seized at the time of arrest or search involving violation of this article. If the person from whom the monies were taken can establish to the satisfaction of a court of competent jurisdiction that the monies seized are not products of illegal acts, the monies must be returned pursuant to court order.
(b) Any property subject to forfeiture under this article may be seized by the department having authority upon warrant issued by any court having jurisdiction over the property. Seizure without process may be made if:
(1) the seizure is incident to an arrest or a search under a search warrant or an inspection under an administrative inspection warrant;
(2) the property subject to seizure has been the subject of a prior judgment in favor of the State in a criminal injunction or forfeiture proceeding based upon this article;
(3) the department has probable cause to believe that the property is directly or indirectly dangerous to health or safety; or
(4) the department has probable cause to believe that the property was used or is intended to be used in violation of this article.
(c) In the event of seizure pursuant to subsection (b), proceedings under Section 44-53-530 regarding forfeiture and disposition must be instituted within a reasonable time.
(d) Any property taken or detained under this section is not subject to replevin but is considered to be in the custody of the department making the seizure subject only to the orders of the court having jurisdiction over the forfeiture proceedings. Property described in Section 44-53-520(a) is forfeited and transferred to the government at the moment of illegal use. Seizure and forfeiture proceedings confirm the transfer.
(e) Controlled substances listed in Schedule I that are possessed, transferred, sold, or offered for sale in violation of this article are contraband and must be seized and summarily forfeited to the State. Controlled substances listed in Schedule I, which are seized or come into the possession of the State, the owners of which are unknown, are contraband and must be summarily forfeited to the State.
(f) Species of plants from which controlled substances in Schedules I and II may be derived which have been planted or cultivated in violation of this article, or of which the owners or cultivators are unknown, or which are wild growths, may be seized and summarily forfeited to the State.
(g) The failure, upon demand by the department having authority to make the demand, of the person in occupancy or in control of land or premises upon which the species of plants are growing or being stored to produce an appropriate registration, or proof that he is the holder thereof, constitutes authority for the seizure and forfeiture of the plants.
(h) For the purposes of this section, whenever the seizure of any property subject to seizure is accomplished as a result of a joint effort by more than one law enforcement agency, the law enforcement agency initiating the investigation is considered to be the agency making the seizure.
(i) Law enforcement agencies seizing property under this section shall take reasonable steps to maintain the property. Equipment and conveyances seized must be removed to an appropriate place for storage. Any monies seized must be deposited in an interest bearing account pending final disposition by the court unless the seizing agency determines the monies to be of an evidential nature and provides for security in another manner.
(j) Whenever property is seized as provided for under this section, the law enforcement agency making the seizure shall, within ten days of the seizure or within a reasonable period of time where special need can be demonstrated, submit a report to its governing body with copies to the Attorney General's Office and the Division of General Services. The report shall provide the following information with respect to the property: (a) description, (b) circumstances of seizure, (c) present custodian and where the property is being stored or its location, (d) name of owner, (e) name of lienholder, if any, (f) seizing agency, and (g) the type and quantity of the controlled substance involved. If the property is a conveyance, the report shall include the following: the make, model, and year of the conveyance; the person in whose name the conveyance is registered; and the person who holds the title of ownership."
How forfeiture of property is accomplished
SECTION 3. Section 44-53-530 of the 1976 Code is amended to read:
"Section 44-53-530. (a) Forfeiture of property defined in Section 44-53-520 must be accomplished by petition of the Attorney General or his designee or the circuit solicitor or his designee to the court of common pleas for the jurisdiction where the items were seized. The petition must be submitted to the court within a reasonable time period following seizure and shall set forth the facts upon which the seizure was made. The petition shall describe the property and include the names of all owners of record and lienholders of record. The petition shall identify any other persons known to the petitioner to have interests in the property. Petitions for the forfeiture of conveyances shall also include the following information: the make, model, and year of the conveyance, the person in whose name the conveyance is registered, and the person who holds the title to the conveyance. The petition shall set forth the type and quantity of the controlled substance involved. A copy of the petition must be sent to each law enforcement agency which has notified the petitioner of its involvement in the seizure.
Notice of hearing or rule to show cause must be directed to all persons with interests in the property listed in the petition including law enforcement agencies which have notified the petitioner of their involvement in the seizure. Owners of record and lienholders of record may be served by certified mail, to the last known address as appears in the records of the governmental agency which records the title or lien.
The judge shall determine whether the property is subject to forfeiture and order the forfeiture confirmed. If the judge finds a forfeiture, he shall then determine the lienholder's interest as provided in this article. The judge shall determine whether any property must be returned to a law enforcement agency pursuant to Section 44-53-582.
If there is a dispute as to which law enforcement agency initiated the seizure, this issue must be determined by the judge. If any property seized is a conveyance or equipment, the judge may determine all other issues concerning interests in and disposition of the property before him. If any property seized is not a conveyance or equipment, disposition must be made pursuant to subsection (b) of this section; however, disposition of monies, negotiable instruments, and securities must be made pursuant to subsection (c) of this section. The law enforcement agency initiating the seizure of a conveyance or equipment may request the court to have the property transferred to the law enforcement agency upon a showing of need. Property transferred to the agency may not be used to supplant operating funds within the law enforcement agency's current or future budgets. Any expenditure of the proceeds from the sale of the property by a law enforcement agency for an item that would have a recurring expense to the governing body must be approved by the governing body prior to the purchase. If the seizing agency does not request transfer, any other appropriate agency may request transfer upon a showing of need.
Any forfeiture may be effected by consent order approved by the court without filing or serving pleadings or notices provided that all owners and other persons with interests in the property entitled to notice under this section, except lienholders and agencies, consent to the forfeiture. Disposition of the property may be accomplished by consent of the petitioner and those agencies involved. Persons entitled to notice under this section may consent to some issues and have the judge determine the remaining issues.
(b) If the property is not transferred by the court to an agency, the judge shall order it transferred to the Division of General Services. The Division shall sell or transfer the property as it considers appropriate. If the property is sold, proceeds may be used by the Division for payment of all proper expenses of the proceedings for the forfeiture and sale of the property, including the expenses of seizure, maintenance, and custody and other costs incurred by the implementation of this section. The net proceeds from any sale must be remitted to the State Treasurer to be placed in a special account. The Division of General Services may authorize payment from the special account of like expenses in cases where monies, negotiable instruments, or securities are seized and forfeited.
(c) The first one thousand dollars of any cash seized and forfeited pursuant to this article remains with and is the property of the law enforcement agency which effected the seizure. Whenever monies, in excess of one thousand dollars, negotiable instruments, or securities are forfeited under the provisions of this section, the judge shall provide for the transfer of the items to the State Treasurer, who shall retain them in a special account. The State Treasurer may convert them into other forms of value for deposit."
Fines
SECTION 4. Section 44-53-580 of the 1976 Code is amended to read:
"Section 44-53-580. All fines collected by any court or agency resulting from any violation of any provision of this article must be remitted to the State Treasurer under terms and conditions as he may determine. All fines must be used by the Department of Mental Health exclusively for the treatment and rehabilitation of drug addicts within the department's addiction center facilities."
Monies
SECTION 5. Section 44-53-582 of the 1976 Code is amended to read:
"Section 44-53-582. All monies used by law enforcement officers or agents, in the line of duty, to purchase controlled substances during a criminal investigation must be returned to the State or local agency or unit of government furnishing the monies upon a determination by the court that the monies were used by law enforcement officers or agents, in the line of duty, to purchase controlled substances during a criminal investigation."
Power to forward copies of order
SECTION 6. Section 44-53-584 of the 1976 Code is amended to read:
"Section 44-53-584. Every petitioner shall forward copies of the order of the judge ordering or denying forfeiture and the petition for forfeiture, if any, to the Attorney General and the Division of General Services immediately upon receipt of the order. If the seized property is otherwise returned to the owners, the Attorney General and Division of General Services must be informed. The Division of General Services shall maintain the necessary records for the Attorney General to develop an annual report on the property forfeited to the State, the disposition of that property, and the proceeds from the sale of the property."
Innocent owners may apply to court
SECTION 7. Section 44-53-586 of the 1976 Code is amended to read:
"Section 44-53-586.(a) Any innocent owner or any manager or owner of a licensed rental agency or any common carrier or carrier of goods for hire may apply to the court of common pleas for the return of any item seized under the provisions of Section 44-53-520. Notice of hearing or rule to show cause accompanied by copy of the application must be directed to all persons and agencies entitled to notice under Section 44-53-530. If the judge denies the application, the hearing may proceed as a forfeiture hearing held pursuant to Section 44-53-530.
(b) The court may return any seized item to the owner if the owner demonstrates to the court by a preponderance of the evidence:
(1) in the case of an innocent owner, that the person or entity was not a consenting party to, or privy to, or did not have knowledge of, the use of the property which made it subject to seizure and forfeiture.
(2) in the case of a manager or an owner of a licensed rental agency, a common carrier, or a carrier of goods for hire, that any agent, servant, or employee of the rental agency or of the common carrier or carrier of goods for hire was not a party to, or privy to, or did not have knowledge of, the use of the property which made it subject to seizure and forfeiture.
If the licensed rental agency demonstrates to the court that it has rented the seized property in the ordinary course of its business and that the tenant or tenants were not related within the third degree of kinship to the manager or owner, or any agents, servants, or employees of the rental agency, then it is presumed that the licensed rental agency was not a party to, or privy to, or did not have knowledge of, the use of the property which made it subject to seizure and forfeiture.
(c) The lien of any innocent person or other legal entity, recorded in public records, shall continue in force upon transfer of title of any forfeited item, and any transfer of title is subject to the lien, if the lienholder demonstrates to the court by a preponderance of the evidence that he was not a consenting party to, or privy to, or did not have knowledge of, the involvement of the property which made it subject to seizure and forfeiture."
Proceeds from sale of forfeited property
SECTION 8. Section 44-53-588 of the 1976 Code is amended to read:
"Section 44-53-588. All proceeds from the sale of forfeited property under Section 44-53-530 must be remitted to the State Treasurer, who shall place them in the special account. The State Treasurer shall remit directly to the governing body of the local law enforcement agency, or to a state law enforcement agency, whichever initiated seizure of the property, twenty-five percent of the proceeds from the sale of the forfeited property and twenty-five percent of monies, negotiable instruments, or securities transferred to the State Treasurer pursuant to Section 44-53-530(c), to be used exclusively by law enforcement in the control of drug offenses. However, no governing body or agency may receive more than one hundred thousand dollars from the special account for each seizure. These additional funds may not be used to supplant operating funds within the law enforcement agency's current or future budgets. Any expenditure of these proceeds by a law enforcement agency for an item that would have a recurring expense to the governing body must be approved by the governing body prior to the purchase. The remaining seventy-five percent of the proceeds from the sale of forfeited property and monies, negotiable instruments and securities must be retained in the special account. Twenty-five percent of the funds retained in the special account must be retained for use by the State Department of Corrections for rehabilitation programs for prisoners. The State Commission on Alcohol and Drug Abuse shall serve in an advisory capacity to the Department of Corrections to assure that the expenditure of the funds is consistent with the state plans as required by subsection (c) of Section 44-49-40. Any local law enforcement agency or state agency, including, but not limited to, the Department of Mental Health, the Department of Youth Services, and the Department of Corrections, may request funds from this special account in its annual appropriations request, and may receive those funds only after approval in the annual state appropriations act. The request shall document and justify how the funds will impact on the problems associated with the illegal use of controlled substances by enhancing state agencies' preventive, investigative, prosecutorial, correctional, or rehabilitative functions. No funds so requested and obtained from the special account may be used to supplant existing state funds."
Time effective
SECTION 9. This act shall take effect upon approval by the Governor.