H*2155 Session 106 (1985-1986)
H*2155(Rat #0445, Act #0404 of 1986) General Bill, By M.S. Gulledge,
C.D. Chamblee, Davenport, J. Faber, E.D. Foxworth, J.L. Harris, J.R. Klapman and
J.W. Tucker
Similar(S 110)
A Bill to 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.-amended title
01/16/85 House Introduced and read first time HJ-310
01/16/85 House Referred to Committee on Judiciary HJ-310
05/15/85 House Committee report: Favorable with amendment
Judiciary HJ-3210
05/22/85 House Debate adjourned HJ-3389
05/23/85 House Objection by Rep. Day HJ-3467
05/23/85 House Debate adjourned HJ-3467
05/28/85 House Objection by Rep. Hearn, TM Burriss & MD Burriss
HJ-3528
05/30/85 House Objection withdrawn by Rep. Day HJ-3670
06/04/85 House Objection withdrawn by Rep. Hearn, M.D. Burriss &
T.M. Burriss HJ-3836
06/04/85 House Amended HJ-3837
06/04/85 House Read second time HJ-3854
06/05/85 House Read third time and sent to Senate HJ-3944
06/05/85 Senate Introduced and read first time SJ-2822
06/05/85 Senate Referred to Committee on Judiciary SJ-2822
03/04/86 Senate Recalled from Committee on Judiciary SJ-808
03/05/86 Senate Recommitted to Committee on Judiciary SJ-818
04/22/86 Senate Committee report: Favorable with amendment
Judiciary SJ-2222
04/24/86 Senate Amended SJ-2278
04/24/86 Senate Read second time SJ-2279
04/24/86 Senate Ordered to third reading with notice of
amendments SJ-2279
04/29/86 Senate Read third time SJ-2361
04/29/86 Senate Returned SJ-2361
04/29/86 House Concurred in Senate amendment and enrolled HJ-2692
04/30/86 Ratified R 445
05/06/86 Signed By Governor
05/06/86 Effective date 05/06/86
05/06/86 Act No. 404
05/20/86 Copies available
(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. |