SC’s Civil Forfeiture Laws are Constitutional: The SC Supreme Court Authorizes Law Enforcement to Continue Taking Money from Innocent Motorists

In Richardson v. Twenty Thousand Seven Hundred Seventy-One and 00/100 Dollars ($20,771.00) and Travis Green, decided on September 14, 2022, the SC Supreme Court reversed a circuit court’s finding that SC’s civil forfeiture laws, which require innocent motorists to prove that their money is unrelated to drug activities, are unconstitutional.

According to the SC Supreme Court, it is okay if law enforcement seizes money from innocent motorists because all they have to do is file a lawsuit (or respond to the state’s forfeiture action) to get their money back.

The Court’s reasoning comes down to:

  1. The Court thinks that the government’s interest in seizing money – regardless of the owner’s innocence – outweighs the interests of citizens in not having their property unjustly seized, and
  2. That’s the way it’s always been done, so it must be okay.

SC Civil Forfeiture Laws: The SC Supreme Court Approves Highway Robbery to Fund Law Enforcement

SC law enforcement agencies routinely seize money from motorists on the highway – often when there is no crime alleged or when a crime cannot be proven.

These cases, where money is seized when there are no drugs or where there is a small amount of drugs that are clearly unrelated to the money, will never make it to the SC Supreme Court because the attorney assigned to litigate the matter will inevitably offer to return some of the money to settle the case.

Get some of your money back now, or go to trial and appeal your case? There will never be an appeal, and, in most of these cases, there will never be litigation that could result in an appeal because the victim can’t afford an attorney to litigate the case for them.

What happens after a police officer takes your money on the roadside?

The person who was just robbed needs to wait “a reasonable time” for the prosecutor’s office to file a forfeiture action to get the court’s approval to keep the money.

If the prosecutor does not file the lawsuit, the Supreme Court says that’s okay, because the person who had their money seized can just sue the government to get their money back…

Why would law enforcement take money that is not connected to a crime from a person who is not going to be convicted of a crime?

Law Enforcement in the US has Seized Billions of Dollars from Motorists

I can tell you from personal experience that SC police routinely seize funds from motorists – often relatively small amounts – when the motorist is not charged with a crime, when the motorist is not likely to be convicted of a crime, or for minor infractions like finding a marijuana roach in the vehicle.

Why?

They are “addicted” to the easy money, and their departments have come to rely on the funds for revenue that often becomes a “slush fund” for purchases they would not have been able to afford otherwise.

From the dissent:

Since the adoption of CAFRA, civil forfeiture has increased exponentially at both the federal and state levels, “long past its biblical roots.” Suarez, supra, at 1006. “Across the United States, federal and local law enforcement agencies collectively amass billions of dollars by seizing property deemed to be an instrumentality of illegal activity.” Ellsworth, supra, at 126; see also Budasoff, supra, at 475 (“Once an unusual practice, civil forfeiture is now ubiquitous . . . . Nearly every state now has its own body of forfeiture law. Those state laws allow for the forfeiture of a wide range of property, including houses, cars, and bank accounts.” (footnotes omitted)). “The changes to civil forfeiture in the twentieth century fundamentally altered civil forfeiture from a tool used rarely and when other remedies were impracticable, to a regular practice depended upon to generate revenue.” Budasoff, supra, at 476.

It’s like Omar from The Wire robbing drug dealers, or rival gangs preying on one another, but it’s law enforcement vs. drug traffickers. Cops rob the drug traffickers to take their resources to use in their own operations. Except they aren’t just robbing drug traffickers – they are also stealing money from people who have nothing to do with the drug trade.

The difference is, when a cop with a gun and a shield does it, it’s legal. Another difference is Omar wasn’t robbing everyday people – unlike SC law enforcement, he only robbed drug dealers…

Yes, It is Happening in South Carolina

A quick Google search turns up extensive documentation of law enforcement operations in South Carolina that target motorists who commit traffic violations, not to enforce the traffic laws and make the highways safe, but to seize money from them.

FN 9 from the dissent:

In South Carolina, for example, law enforcement agencies conduct broad sweeps, such as “Operation Rolling Thunder” and “Operation Strike Force,” which annually target drivers for traffic violations on heavily-travelled interstates to provide probable cause for searches and, thus, civil forfeiture, with 95% of the proceeds going to law enforcement and prosecutors. See Nathaniel Cary, Inside Look: How SC Cops Swarm I-85 and I-26, Looking for “Bad Guys,” Greenville News (Feb. 3, 2019, updated Apr. 22, 2020), https://www.greenvilleonline.com/in-depth/news/2019/02/03/operation-rolling-thunder-sc-civil-forfeiture-interstate-95-interstate-26/2458314002/.

How does it work?

It’s like fishing – police wait on the roadside and pull over motorists who are speeding, following too close, fail to use a turn signal, or commit any traffic violation. They’re allowed to do that.

Once they pull the person over, they ask for consent to search their vehicle. They’re allowed to do that.

If the person doesn’t give consent, they look for any reason that will give them probable cause to search – a reasonable suspicion that the driver may be armed, the odor of marijuana (whether there is marijuana or not, the SC Supreme Court will take their word for it), “nervous” behavior, inconsistencies between what the driver says and a passenger says, air fresheners on the rearview mirror). They’re allowed to do that.

When they search the vehicle, if they find large amounts of cash, they take it. Why would an innocent person be carrying cash, anyway?

If they find a bag of marijuana or a half-smoked roach and money in a person’s wallet, they might take the money even if it is a small amount. That $800 is obviously not “proceeds” from the pinch of weed the person had in their pocket, but that doesn’t matter. Under SC’s forfeiture laws, they’re allowed to do that.

People Cannot Afford to Fight Forfeiture Proceedings

But SC’s forfeiture laws allow victims of law enforcement robbery to go to court and get their money back, right?

That’s true. They just need to:

  • Retain an attorney, or
  • Research and draft an answer to the government’s forfeiture complaint or research and draft their own lawsuit suing the government – one of the most complex types of lawsuits that most attorneys will not touch,
  • Learn courtroom procedure and the specific procedures that apply to forfeiture proceedings,
  • Learn the rules of evidence and trial procedure so they can try their case,
  • Investigate their case and gather the evidence they will need to present at trial, and
  • Learn how to file appeals and litigate an adverse decision against them.

In short, a person needs to 1) retain an attorney or 2) go to law school…

Cops who seize relatively small amounts of money from motorists know that 1) the motorist is not likely to be able to afford an attorney to recover the funds, and 2) $800 here and $3500 there adds up to millions of dollars when you do it enough times.

Very few people who have their money seized on the roadside are going to pay an attorney $10,000 or more to go to court and fight to get back the $1200 that was taken from them, and cops know this.

Under SC’s forfeiture laws, the owner of the property must “prove a negative” – that their property was not connected to drug activity – before they can get their money back:

An innocent owner faces a difficult burden of proving a negative. Because the proceeding is deemed civil, property owners are not entitled to counsel. Consequently, they must either represent themselves or try to obtain counsel at their own expense, which in some cases could exceed the value of the property they are trying to reclaim. See Suarez, supra, at 1006–07; Lisa Knepper et al., Policing for Profit: The Abuse of Civil Asset Forfeiture 6, 20–21 (Inst. for Just., 3d ed. 2020).

SC’s Forfeiture Laws Have a Disproportionate Impact on Non-Whites

The Supreme Court’s only black justice was also the only dissenting opinion.

He also pointed out that, in a study of SC forfeiture cases from 2014-2016, nearly two-thirds of people who had their property taken were black men:

A team of journalists examined all civil forfeitures in South Carolina’s forty-six counties during the period from 2014 to 2016, a total of more than 3,000 cases. They noticed that, demographically, almost two-thirds of people who had their property taken were black men; further, poor individuals often could not pursue the return of their property or ward off a threatened seizure. See William Ramsey, How We Brought TAKEN to Life, Greenville News (Jan. 27, 2019, updated Jan. 17, 2020), https://www.greenvilleonline.com/story/news/taken/2019/01/27/taken-civil-forfeiture-investigation-greenville-news-anderson-usa-today-network-journalism/2458361002/ (discussing the methodology of the investigation).

In a state where less than 30% of the population is black, that is a staggering disparity (not unlike the disparity in race on our state’s supreme court).

A racist police officer might say that’s just because black people are more likely to be drug dealers. Others might say racist police officers who target black motorists and who are more likely to seize money from black motorists is a more likely explanation…

That’s the Way It Oughta Be

“Momma said, momma said, that’s the way it’s gonna stay…”

A recurring theme in the majority’s analysis is that the forfeiture laws are firmly rooted in our nation’s jurisprudence – that’s the way we’ve always done it, so it must be okay.

And they’re right – apparently, that’s the way it’s always been done. That doesn’t make it right, though, does it?

Historically, forfeiture (theft of property by the government) was used as a source of revenue for the government. Take, for example, the early English law regarding “deodands,” where property was forfeited to fund the Church and the Crown:

Early English common law further developed this line of thought with the deodand procedure, by which any property that caused the death of an English citizen was forfeited to the King as a deodand. Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 680–81, 681 n.16 (1974) (“Deodand” derives from the Latin term “Deo dandum,” meaning to be “given to God.”); Suarez, supra, at 1004. Originally, the property seized under the deodand procedure was used for religious purposes, but the procedure evolved into a source of revenue for the Crown. Suarez, supra, at 1004. Later, deodands were “justified as a penalty for carelessness.” Calero-Toledo, 416 U.S. at 681.

We don’t perpetuate unjust laws simply because our ancestors or predecessors were okay with being unjust.

We didn’t continue to find, as a matter of law, that black persons enslaved in the United States were property simply because all previous court opinions held that enslaved black persons were property.

We didn’t continue to find, as a matter of law, that segregation was constitutional simply because all previous court opinions held that segregation was constitutional.

We also should not continue to find, as a matter of law, that it is constitutional to deprive citizens of their property and force them to retain counsel to prove their innocence before they can have their property returned.

Yes, the government has a strong, seemingly insurmountable interest in continuing the cash cow of roadside forfeitures without meaningful intervention by the courts. As only one justice on our Supreme Court found, however, the government does not have any legitimate interest in seizing property that is not connected to a crime:

I further find the government does not have a strong interest in the current procedure and should bear the burden of additional requirements because, as the circuit court observed, the government has “zero legitimate interest in seizing or withholding money or other property when the defendant has not been convicted of a crime, and the government has not proven that the property was connected to a crime.”

What’s the Answer?

The legislature should either abolish or rewrite SC’s forfeiture laws to prevent the seizure of funds from innocent motorists.

A person who has not been convicted of a crime – or even charged with a crime – should not have the burden of retaining counsel to prove that their money was taken illegally.

Law enforcement should not be incentivized to seize money from motorists, creating competitions, rewarding officers who seize the most amount of money from motorists, and relying on forfeiture funds.

The courts should do exactly what the circuit court in this case did – declare the statute unconstitutional, thereby 1) stopping law enforcement from seizing funds from innocent motorists and 2) forcing the legislature to enact new legislation that protects the citizens of SC from highway robbery at the hands of law enforcement.

Criminal Defense Attorneys in Charleston, SC

Grant B. Smaldone is a criminal defense lawyer based in Charleston, SC whose law practice is focused on state and federal criminal cases in SC including preliminary hearings in SC state court.

If you’ve been charged with a crime in the Charleston or Myrtle Beach areas, call now at (843) 808-2100 or contact us through our website for a free consultation.


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