TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING CHAPTER 32 TO TITLE 17 SO AS TO ENTITLE THE CHAPTER "CRIMINAL ASSET FORFEITURE", AND TO PROVIDE PROCEDURES FOR THE FORFEITURE OF MONIES, PROPERTY, AND OTHER ASSETS; TO AMEND SECTIONS 16-3-2090, RELATING TO TRAFFICKING IN PERSONS, 16-8-260, RELATING TO CRIMINAL GANGS, 16-13-175, RELATING TO LARCENY OF PROPERTY AND MOTOR VEHICLES USED, 16-13-177, RELATING TO TIMBER THEFT, 16-27-55, RELATING TO ANIMAL FIGHTING AND BAITING, 39-15-1195, RELATING TO COUNTERFEIT MARKS, 44-53-520, RELATING TO CONTROLLED SUBSTANCES, AND 56-29-40, RELATING TO CHOP SHOPS, ALL SO AS TO MAKE CONFORMING CHANGES; TO REPEAL SECTION 44-53-530 RELATING TO DRUG FORFEITURE PROCEDURES, SECTION 44-53-586 RELATING TO RETURN OF SEIZED PROPERTY TO INNOCENT OWNERS, SECTION 44-53-590 RELATING TO THE OFFENSE OF USING PROPERTY IN A MANNER THAT MAKES IT SUBJECT TO FORFEITURE, AND SECTION 56-29-50 RELATING TO FORFEITURE OF MOTOR VEHICLES AND SUCH; AND BY ADDING ARTICLE 17 TO CHAPTER 3, TITLE 23 SO AS TO PROVIDE THAT THE COMMISSION ON PROSECUTION COORDINATION SHALL ESTABLISH AND MAINTAIN AN ASSET SEIZURE AND FORFEITURE TRACKING DATABASE AND SEARCHABLE WEBSITE THAT INCLUDES CERTAIN INFORMATION ABOUT PROPERTY SEIZED BY LAW ENFORCEMENT AGENCIES AND FORFEITED UNDER STATE LAW OR UNDER ANY AGREEMENT WITH THE FEDERAL GOVERNMENT.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. A. Title 17 of the 1976 Code is amended by adding:
Section 17-32-10. This chapter may be cited as the 'Criminal Asset Forfeiture Act'.
Section 17-32-20. As used in this chapter, the term:
(1) 'Contraband' means goods that are unlawful to import, export, or possess.
(2) 'Conveyance' means a device used for transportation and includes, but is not limited to, a motor vehicle, trailer, snowmobile, airplane, vessel, or any equipment attached to it. This term does not include property that is stolen or taken in violation of the law.
(3) 'Law enforcement agency' means any police force, multijurisdictional task force, or other local, county, or state agency that has the authority under state law or operates in cooperation with a federal agency under federal law to engage in the seizure and forfeiture of property.
(4) 'Other assets' includes a conveyance or any other property which is forfeitable pursuant to another statute or federal law that specifically delineates property or assets that are forfeitable.
(5) 'Prosecuting agency' means any solicitor's office or the Office of the Attorney General.
Section 17-32-30. A person who uses monies, property, or other assets in a manner which would make the monies, property, or other assets subject to forfeiture pursuant to the provisions of this chapter, except for innocent owners, rental agencies, lienholders, and the like as provided for in this chapter, is guilty of a misdemeanor and, upon conviction, must be imprisoned for not more than one year or fined not more than five thousand dollars, or both, in the discretion of the court. For a lawful seizure and forfeiture pursuant to the provisions of this chapter, the person must be charged with both a violation of this section and any underlying offenses for which the seizure and forfeiture is connected and the penalty provided in this section shall run concurrent to those underlying offenses.
Section 17-32-40. (A) Notwithstanding any other provision of law, all monies, property, or other assets subject to forfeiture pursuant to the following statutes and established by proof of a criminal conviction are governed by the provisions of this chapter:
(1) Section 16-3-2090, trafficking in persons;
(2) Section 16-8-260, criminal gangs;
(3) Section 16-13-175, larceny of property and motor vehicles used;
(4) Section 16-13-177, timber theft;
(5) Section 16-27-55, animal fighting and baiting;
(6) Section 39-15-1195, counterfeit marks
(7) Section 44-53-520, controlled substances;
(8) Section 56-29-40, chop shops;
(9) any other provision of law which provides for the forfeiture of monies, property, or other assets not specifically delineated in this subsection, except property or assets considered contraband.
(B)(1) Any property subject to forfeiture pursuant to this chapter may be seized by the law enforcement agency having authority upon warrant issued by any court having jurisdiction over the property. Seizure without process may be made if the:
(a) seizure is incident to an arrest for a charge subject to forfeiture or a search under a search warrant or an inspection under an administrative inspection warrant;
(b) property subject to seizure has been the subject of a prior judgment in favor of the State;
(c) law enforcement agency has probable cause to believe that the property is directly or indirectly dangerous to health or safety; or
(d) law enforcement agency has probable cause to believe that the property was used or is intended to be used in violation of a statute subject to forfeiture.
(2)(a) A law enforcement agency may not seize cash of five hundred dollars or less or property or other asset of a value less than two thousand five hundred dollars. In addition, cash in any amount may not be seized solely incident to an arrest for possession of twenty-eight grams or one ounce or less of marijuana (simple possession of marijuana pursuant to Section 44-53-370(d)(4)). For purposes of determining the value of property or other assets, the law enforcement agency shall make a reasonable determination at the time of seizure based on fair market value, if possible. If a determination cannot be made of fair market value of the property or asset within five days of the seizure, the property or asset must be returned to the lawful owner on day five following the seizure.
(b) Upon seizure, the law enforcement agency making the seizure shall provide to the person in possession of the property seized an itemized receipt. If such person is not physically present, a receipt must be left in the place of seizure, if possible.
(c) The presence or possession of cash in any amount, without other evidence of a criminal offense subject to forfeiture, is insufficient probable cause for seizure of cash.
(C) A law enforcement agency seizing property with or without a court order may not request, require, or in any manner induce a person to waive his interest or rights to property seized for the purposes of forfeiture pursuant this chapter. However, this subsection may not be construed to prohibit such a waiver of a person's interest or rights in property seized after a hearing and finding of probable cause pursuant to the provisions of this chapter.
(D)(1) Within thirty days of a seizure pursuant to this chapter, a preliminary hearing must be scheduled, unless waived as provided in this section, in a court with jurisdiction over the violation of Section 17-32-30 and any underlying criminal offenses to determine whether probable cause existed to seize the monies, property, or other asset. One or more of the law enforcement officers who made the seizure shall testify under oath regarding the facts and circumstances which established probable cause for the seizure. The State has the burden of proof that probable cause existed for a violation of Section 17-32-30. If the court determines that probable cause did not exist for the seizure, the monies, property, or other asset seized must be returned to the lawful owner within thirty days of a final probable cause determination. If the court determines there was probable cause for the seizure, the property is subject to the forfeiture proceeding pursuant to the provisions of this chapter.
(2) Notice must be provided by the appropriate solicitor's office or law enforcement agency prosecuting the underlying criminal offense, as appropriate, to all parties known to the prosecutor to have an interest in the property and anyone that the defendant may provide. These parties have a right to be heard and provide proof of innocent ownership in the seized property for the court to determine, in writing, the protection or return of the monies, property, or other asset. Any interested party may waive their right to this preliminary hearing. Failure to appear at the preliminary hearing by an innocent owner in no way precludes an innocent owner from seeking relief pursuant to Section 17-32-60.
(3) A defendant has the right to waive his portion of the preliminary hearing pursuant to this subsection.
(4) The provisions of this subsection do not apply to the seizure of contraband.
(E) For notice and storage purposes, when 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.
(F) Law enforcement agencies seizing property pursuant to this section shall take reasonable steps to maintain the property in the condition in which was received. 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. An innocent owner may petition the court for restitution for failure of a seizing agency to maintain in good faith the seized property.
(G) When monies, property, or other assets 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 prosecution agency and the Commission on Prosecution Coordination in accordance with the requirements of Article 17, Chapter 3, Title 23.
(1) The report must provide the following information with respect to the property seized:
(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 law enforcement agency;
(g) the type and quantity of the controlled substance involved, if applicable;
(h) name and contact information of any interested party.
(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), the 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 law enforcement agency;
(c) the type and quantity of the controlled substance involved, if applicable;
(d) the make, model, and year of a conveyance; and
(e) the law enforcement agency responsible for the property or conveyance seized.
(H) Monies, property, or other assets seized by a law enforcement agency must not be used by officers for personal purposes.
Section 17-32-50. (A)(1) Forfeiture of monies, property, or other assets seized pursuant to this chapter is accomplished upon conviction of the defendant for the charges pursuant to Section 17-32-30 or consent agreement pursuant to subsection (B).
(2) If the court determines a law enforcement agency or a prosecuting agency did not comply in good faith with the provisions in the chapter regarding the item in question, then that item is not subject to forfeiture.
(3) At any time when contraband is no longer needed as evidence, the court may order it to be destroyed pursuant to state law.
(4) At any time when abandoned property is no longer needed as evidence, the court may order it be sold under subsection (C).
(B) Any forfeiture may be effected by consent order approved by the court provided that all owners and other persons known to have an interest in the property entitled to notice under this section, except lienholders and agencies, consent to the forfeiture. Disposition of the property must be accomplished pursuant to the provisions of subsection (D). Persons entitled to notice under this chapter may consent to some issues and have the court determine remaining issues.
(C) If property is seized by a state law enforcement agency and forfeiture is accomplished under this section, the court shall order the property transferred to the Division of General Services of the Department of Administration for sale. If property is seized by a local law enforcement agency and forfeiture is accomplished under this section, the court shall order the property transferred to the local governing body for sale pursuant to the established procedures of that jurisdiction. Proceeds are to be distributed as provided in subsection (D).
(D) When all seized and forfeited monies, property, or other assets are reduced to proceeds, the court must allocate as follows:
(1) determine any lienholder's interest as provided in this chapter and satisfy any recorded liens, mortgages, or filed security interests in the forfeited property;
(2) determine and pay any restitution to the victim of the underlying criminal offense;
(3) pay reasonable costs for the towing, storage, maintenance, repairs, and other operating costs related to the property used in the underlying criminal offense;
(4) return to a law enforcement agency any monies used by law enforcement officers or agents, in the line of duty, to purchase controlled substances during a criminal investigation pursuant to Section 44-53-582, if applicable; and
(5) Of the remainder, if any, after the allocations pursuant to items (1) through (4):
(a) fifty percent to the seizing law enforcement agency or multijurisdictional task force for reimbursement for salaries, benefits, and overtime pay of personnel and other costs associated with the criminal investigation;
(b) twenty-five percent to the South Carolina Public Safety Coordinating Council to be dispersed through grants to law enforcement agencies to fund the following services:
(1) body cameras;
(2) training of law enforcement officers;