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H. 3872
STATUS INFORMATION
General Bill
Sponsors: Rep. Altman
Document Path: l:\council\bills\ms\7397ahb05.doc
Introduced in the House on April 6, 2005
Currently residing in the House Committee on Judiciary
Summary: Illegal alien trespass
HISTORY OF LEGISLATIVE ACTIONS
Date Body Action Description with journal page number
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4/6/2005 House Introduced and read first time HJ-12
4/6/2005 House Referred to Committee on Judiciary HJ-12
View the latest legislative information at the LPITS web site
VERSIONS OF THIS BILL
TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING SECTION 16-11-645 SO AS TO CREATE THE OFFENSE OF ILLEGAL ALIEN TRESPASS AND TO PROVIDE A PENALTY; AND BY ADDING SECTION 16-11-647 SO AS TO ALLOW THE FORFEITURE OF PROPERTY, MONIES, NEGOTIABLE INSTRUMENTS, SECURITIES, AND OTHER THINGS OF VALUE WHEN A PERSON COMMITS THE OFFENSE OF ILLEGAL ALIEN TRESPASS, TO PROVIDE PROCEDURES FOR FORFEITURE, TO CREATE AN EXCEPTION FOR THE INNOCENT OWNER OF ITEMS SUBJECT TO FORFEITURE, AND TO PROVIDE FOR THE DISTRIBUTION OF FORFEITED ITEMS AFTER CONVICTION.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Article 7, Chapter 11, Title 16 of the 1976 Code is amended by adding:
"Section 16-11-645. (A) A person whose presence in the United States of America is unlawful and who is found in this State must be charged with the offense of illegal alien trespass.
(B) It is unlawful for a person to aid or abet a person who violates the provisions of subsection (A).
(C) A person who violates the provisions of this section is guilty of a felony and, upon conviction, must be fined not less than ten thousand dollars or imprisoned not less than three years nor more than five years. No part of the fine or imprisonment imposed by this section may be suspended nor may probation be granted.
(D) Law enforcement officers of the State and its political subdivisions are authorized to investigate and arrest violators of the provisions of this section."
SECTION 2. Article 7, Chapter 11, Title 16 of the 1976 Code is amended by adding:
"Section 16-11-647. (A) A person who violates a provision of Section 16-11-645 is subject to forfeiture of:
(1) property, both real and personal, which is knowingly used to engage in a violation or to further a violation of Section 16-11-645; and
(2) monies, negotiable instruments, securities, or other things of value furnished or intended to be furnished by a person to engage in or further a violation of Section 16-11-645.
(B) Property subject to forfeiture pursuant to the provisions of Section 16-11-645 may be seized by the appropriate law enforcement agency with a warrant properly issued by a court with jurisdiction over the property. Property may be seized without a warrant if the:
(1) seizure is incident to an arrest or a search with a search warrant or an inspection under an administrative inspection warrant;
(2) property subject to seizure was the subject of a prior judgment in favor of the State in a criminal injunction or forfeiture proceeding pursuant to the provisions of Section 16-11-645;
(3) law enforcement agency has probable cause to believe that the property is directly or indirectly dangerous to health or safety; or
(4) law enforcement agency has probable cause to believe that the property was used or is intended to be used in violation of the provisions of Section 16-11-645.
(C) Forfeiture proceedings instituted pursuant to the provisions of Section 16-11-645 are subject to the procedures and requirements for forfeiture as set out in Section 44-53-530.
(D) Property taken or detained pursuant to the provisions of this section is not subject to replevin but is considered to be in the custody of the law enforcement agency making the seizure subject only to an order of the court having jurisdiction over the forfeiture proceedings.
(E) For purposes of this section, when the seizure of property subject to forfeiture 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.
(F) A law enforcement agency seizing property pursuant to the provisions of this section shall take reasonable steps to maintain the property. Equipment and conveyances seized must be removed to an appropriate place for storage. 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 appropriate security in another manner.
(G) When property, monies, negotiable instruments, securities, or other things of value pursuant to the provisions of subsection (A) are seized, the law enforcement agency making the seizure, within ten days or a reasonable period of time after the seizure, shall submit a report to the appropriate prosecuting agency.
(1) The report must include the following information:
(a) a description of the property seized;
(b) the circumstances of the seizure;
(c) the present custodian and where the property is being stored or its location;
(d) the name of the owner of the property;
(e) the name of any lienholders of the property; and
(f) the seizing agency.
(2) If the property is a conveyance, the report must include the:
(a) make, model, serial number, and year of the conveyance;
(b) person in whose name the conveyance is registered; and
(c) name of any lienholders.
(3) In addition to the report provided for in items (1) and (2) of this subsection, the appropriate law enforcement agency shall prepare for dissemination to the public, upon request, a report providing the following information:
(a) a description of the quantity and nature of the property and money seized;
(b) the seizing agency;
(c) the make, model, and year of a conveyance; and
(d) the law enforcement agency responsible for the property or conveyance seized.
(H) Property or conveyances seized by a law enforcement agency may not be used by officers or employees of the agency for personal purposes.
(I)(1) An innocent owner or a manager or owner of a licensed rental agency or a common carrier or carrier of goods for hire may apply to the court of common pleas for the return of an item seized pursuant to the provisions this section. 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 as provided in Section 44-53-530. If the court denies the application, the hearing may proceed as a forfeiture hearing held pursuant to the provisions of Section 44-53-530.
(2) The court may return a seized item to the owner if the owner demonstrates to the court by a preponderance of the evidence:
(a) 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; and
(b) 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 an 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.
(3) 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.
(4) The lien of an innocent person or other legal entity, recorded in public records, continues in force upon transfer of title of a forfeited item, and a 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.
(J) Notwithstanding another provision of law, upon conviction of an offense as provided in Section 16-11-645, all items forfeited pursuant to the provisions of subsection (A) become the property of the State and must be distributed as follows:
(1) forty percent to the law enforcement agency responsible for the arrest;
(2) fifteen percent to the solicitor's office with jurisdiction over the offense;
(3) fifteen percent to the Department of Corrections;
(3) fifteen percent to the Office of the Attorney General; and
(4) fifteen percent to the State Law Enforcement Division who shall regulate and administer the distribution of these items."
SECTION 2. The repeal or amendment by this act of any law, whether temporary or permanent or civil or criminal, does not affect pending actions, rights, duties, or liabilities founded thereon, or alter, discharge, release or extinguish any penalty, forfeiture, or liability incurred under the repealed or amended law, unless the repealed or amended provision shall so expressly provide. After the effective date of this act, all laws repealed or amended by this act must be taken and treated as remaining in full force and effect for the purpose of sustaining any pending or vested right, civil action, special proceeding, criminal prosecution, or appeal existing as of the effective date of this act, and for the enforcement of rights, duties, penalties, forfeitures, and liabilities as they stood under the repealed or amended laws.
SECTION 3. This act takes effect upon approval by the Governor.
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