H 3737 General Bill, By T.F. Rogers

Similar(S 956)
 A Bill to amend the Code of Laws of South Carolina, 1976, by adding Article 10
 to Chapter 3, Title 23 so as to enact the South Carolina Contraband Forfeiture
 Act of 1995, which declares as contraband and makes subject to forfeiture
 personal property used or involved in the commission of a felony and to
 provide that the money derived from the sale of this contraband property must
 be used for certain purposes including use by the law enforcement agency
 making the seizure.

   03/02/95  House  Introduced and read first time HJ-11
   03/02/95  House  Referred to Committee on Judiciary HJ-12

A BILL

TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING ARTICLE 10 TO CHAPTER 3, TITLE 23 SO AS TO ENACT THE SOUTH CAROLINA CONTRABAND FORFEITURE ACT OF 1995, WHICH DECLARES AS CONTRABAND AND MAKES SUBJECT TO FORFEITURE PERSONAL PROPERTY USED OR INVOLVED IN THE COMMISSION OF A FELONY AND TO PROVIDE THAT THE MONEY DERIVED FROM THE SALE OF THIS CONTRABAND PROPERTY MUST BE USED FOR CERTAIN PURPOSES INCLUDING USE BY THE LAW ENFORCEMENT AGENCY MAKING THE SEIZURE.

Be it enacted by the General Assembly of the State of South Carolina:

SECTION 1. Chapter 3, Title 23 of the 1976 Code is amended by adding:

"Article 10

Section 23-3-800. This article may be cited as the 'South Carolina Contraband Forfeiture Act of 1995'.

Section 23-3-810. As used in this article, `contraband article' means any personal property including, but not limited to, any item, object, tool, substance, device, weapon, machine, vehicle of any kind, money, securities, or currency, which has been or is employed as an instrumentality in the commission of, or in aiding or abetting in the commission of, a felony in which the forfeiture of the personal property used or involved in it is not otherwise provided for by law.

Section 23-3-820. It is unlawful:

(1) to transport, carry, or convey any contraband article in, upon, or by means of any vessel, motor vehicle, or aircraft;

(2) to conceal or possess any contraband article in or upon any vessel, motor vehicle, or aircraft;

(3) to use any vessel, motor vehicle, or aircraft to facilitate the transportation, carriage, conveyance, concealment, receipt, possession, purchase, sale, barter, exchange, or giving away of any contraband article;

(4) to conceal or possess any contraband article.

Section 23-3-830. (A) Any contraband article and any vessel, motor vehicle, aircraft, and other personal property which has been or is being used in violation of a provision of this article or in, upon, or by means of which, a violation of this article has taken or is taking place must be seized and is subject to forfeiture in the manner provided in this article. All rights and interest in and title to contraband articles or other property used in violation of this article immediately vest in the State upon seizure by a law enforcement agency of this State, subject only to perfection of title, rights, and interests in accordance with this article. Neither replevin nor another action to recover an interest in this property may be maintained in a court, except as provided in this article. It is presumed that the vessel, motor vehicle, aircraft, or personal property, in or on which the contraband article is located at the time of seizure, is being used or was intended to be used in a manner to facilitate the transportation, carriage, conveyance, concealment, receipt, possession, purchase, sale, barter, exchange, or giving away of a contraband article.

(B) No property may be forfeited under the provisions of this article if the owner of the property establishes that he neither knew nor should have known after a reasonable injury that the property was being employed or was likely to be employed in criminal activity.

(C) No bona fide lienholder's interest may be forfeited under the provisions of this article if the lienholder establishes that he neither knew nor should have known after a reasonable inquiry that the property was being used or was likely to be used for criminal activity, that the use was without his consent, express or implied, and that the lien had been perfected in the manner prescribed by law before the seizure. If it appears to the satisfaction of the court that a lienholder's interest satisfies the above requirements for exemption, the lienholder's interest must be preserved by the court by ordering the lienholder's interest to be paid from the proceeds of the sale as provided in this article.

Section 23-3-840. (A) The solicitor, within whose jurisdiction the contraband article, vessel, motor vehicle, aircraft, or other personal property has been seized pursuant to this article. shall proceed against the contraband article, vessel, motor vehicle, aircraft, or other personal property after final conviction, including appeals, is obtained or plea entered for the felony involved by filing a petition in the Circuit Court within the circuit in which the seizure occurred requesting the forfeiture and sale of the seized property and setting out the facts and circumstances of the seizure and the felony committed. The court after hearing shall order the contraband article, vessel, motor vehicle, aircraft, or other personal property forfeited and to be sold by the law enforcement agency making the seizure, upon a finding that the contraband article, vessel, motor vehicle, aircraft, or other personal property was being used in violation of this article. The final order of forfeiture by the court shall perfect the state's right and interest in and title to this property and shall relate back to the date of seizure.

(B) If the property is of a type for which title or registration is required by law, or if the owner of the property is known to the seizing agency at the time of seizure, or if the seized property is subject to a perfected security interest in accordance with the Uniform Commercial Code, the solicitor shall give notice of the forfeiture proceedings by registered mail, return receipt requested, to each person having a security interest in the property and shall publish notice of the forfeiture proceeding once each week for two consecutive weeks in a newspaper of general circulation in the county where the seizure occurred. The notice must be mailed and first published at least four weeks prior to filing the petition and shall describe the property; state the county, place, and date of seizure; state the name of the law enforcement agency holding the seized property; and state the name of the court in which the proceeding will be filed and the anticipated date for filing the petition. However, the seizing agency is obligated only to make diligent search and inquiry as to the owner of the subject property, and if, after the diligent search and inquiry, the seizing agency is unable to ascertain the owner, the above actual notice requirements by mail with respect to perfected security interests are not applicable.

(C) When the order of forfeiture is entered by the court, the head of the law enforcement agency effecting the forfeiture shall give notice of the sale to be made by publication and thereafter shall dispose of the property at public auction to the highest bidder for cash without appraisal. The proceeds of sale must be applied as follows: first, to payment of the balance due on any lien preserved by the court in the forfeiture proceedings; second, to payment of the cost incurred by the seizing agency in connection with the storage, maintenance, security, and forfeiture of the property; third, to payment of the costs incurred by the solicitor; and fourth, to payment of costs incurred by the court. The remaining proceeds must be paid to the law enforcement agency which made the seizure.

(D) Upon the sale of any vessel, motor vehicle, or aircraft, the State shall issue a title certificate to the purchaser."

SECTION 2. This act takes effect upon approval by the Governor.