Asset forfeitures have been in the news lately. The Post & Courier recently wrote a story about the Richland County Sheriff’s Office seizing $7,500 cash from an Army veteran living in Columbia. See article here. Law enforcement pulled over his car on the grounds that the car was similar to one that had been described in a recent shoplifting report. Incident to the traffic stop, the police searched the veteran and the purse of a female friend that was a passenger in the car. The search turned up $7,500 in cash in the veteran’s pocket and a small amount of marijuana and crack cocaine in the passenger’s purse.
The passenger was charged with drug possession but no charges were brought against the veteran. Yet, law enforcement kept his $7,500 and filed a motion with the court to retain the money permanently under what are called civil asset forfeiture laws.
So, yes, under South Carolina law, law enforcement can seize and keep your money even if you are not charged with a crime. Fortunately, the veteran was able to challenge the motion and was able to retrieve his cash. However, asset forfeiture is a rising concern. For example, eight police officers in Baltimore are being prosecuted for many violations of the law and police powers including abuse of the asset forfeiture laws. See report here.
Greenville SC Asset Forfeitures: Legal Principles
As noted, in South Carolina, your assets — cash, automobile, home, any personal property of value — can be seized as part of a criminal investigation even if you are not charged with a crime. After seizure, law enforcement can file a motion with the county court seeking an order giving possession of your assets to law enforcement. The standard of proof is the lowest possible standard — probable cause. Moreover, the owner of the property has the burden to prove non-involvement in the criminal activity to retrieve his or her property.
If successful, the police keep 75 percent of the forfeited funds, 20 percent goes to the office of the prosecutors and the remaining five percent goes to the State’s general fund. Non-cash assets are sold at auction and the resulting cash is divided in the same manner. Record-keeping and reporting are not required.
Greenville SC Asset Forfeitures: Purposes and Criticisms
Asset forfeiture has a long history in the US, but the practice received a huge boost following the so-called “War on Drugs” initiated in the 1980s. Originally, the idea was to seize the huge cash holdings, bank accounts and other assets of the drug dealers and runners. Yet, the laws have now been extended to reach assets related to any felony investigation. Moreover, there is no limitation on the type of property that can be seized.
There are critics aplenty of asset forfeiture on both sides of the political aisle. On the left, the charge is violation of civil liberties and unfair impact on the poor. Ironically, one of the clearest statements of this view comes from Supreme Court Justice Clarence Thomas — a well-known conservative voice on the Court. He called for a wholesale change in the asset forfeiture laws. He stated:
“These forfeiture operations frequently target the poor and other groups least able to defend their interests in forfeiture proceedings. Perversely, these same groups are often the most burdened by forfeiture. They are more likely to use cash than alternative forms of payment, like credit cards, which may be less susceptible to forfeiture. And they are more likely to suffer in their daily lives while they litigate for the return of a critical item of property, such as a car or a home.”
On the political right, the criticism is that forfeiture gives too much power to law enforcement and is now a tool available to every government agency — such as the Internal Revenue Service — without safeguards. The conservative concern is that this practice can be used for political purposes.
Criminal defense attorneys also criticize asset forfeiture for giving too much power to law enforcement and because prosecutors can use the threat of asset forfeiture as leverage with regard to plea bargains and the like.
Greenville SC Criminal Defense Attorneys: Contact The Law Office Of H. Chase Harbin Today
If you have been arrested or if you are facing an asset forfeiture proceeding, contact the skilled and experienced Greenville SC criminal defense attorneys at The Law Office of H. Chase Harbin. Time deadlines are often very short — a few days in some cases — so, call our office immediately. We can protect your rights; we will fight with you; you need an experienced ally when confronting the police and the courts. Contact us today via email. We have offices in Greenville and Pickens, South Carolina.