When the United States stole a Spanish pirate ship called the Palmyra in 1822, it was sailed right here to South Carolina. The U.S. government had made fighting piracy a priority, but the king of Spain insisted the Americans return the Palmyra, which he had commissioned.
The U.S. Supreme Court took up the dispute and ruled that the state (i.e., the United States) had the right to take the Palmyra because it had been used to commit crimes. The fact that no one had been convicted of criminal activity didn’t matter, the court said, because the “suspects” were beyond the reach of U.S. courts.
Fast forward almost 200 years, and the state’s power to seize property that it claims has been used in criminal activity has been expanded exponentially…
Civil Asset Forfeiture in South Carolina
Today, federal and state law enforcement agencies can take your money and your property even if you have not been accused of committing a crime. That’s right – the state can take your property.
It’s called civil asset forfeiture, and it happens all the time. South Carolina law enforcement agencies and solicitors’ offices rake in millions of dollars each year by seizing property – including cash, homes, land, and cars – from citizens who may or may not be involved in buying or selling drugs.
Don’t believe it? Just ask Roger Roberts.
Police in Columbia took $7,500 out of his wallet during a traffic stop. They had pulled over the wrong car (whoops!), but, when they searched Roberts’ passenger, they found a small amount of marijuana and cocaine in her purse. So, logically, they took Roberts’ cash and refused to give it back.
If this sounds a lot like, well, piracy, that’s because it is.
In South Carolina, this happens so often that civil liberty advocates and defense attorneys are demanding reform, and some lawmakers are pushing their colleagues to pass legislation that will stop the rampant highway robbery by police in SC.
Can I Get My Money Back?
When the police take your property like this, one of the most basic principles of American justice gets turned on its head. We all learn in school that the burden of proof lies with the accuser. But, not when it comes to civil asset forfeiture – if you want your property back, you must prove that you didn’t obtain it illegally.
If the property is “contraband per se,” it is clearly illegal and will not be returned. Contraband per se would include drugs or counterfeit goods, items you have no legal right to possess.
If the property is “derivative contraband,” it is legal in and of itself but was seized because police claim it was used in or obtained by illegal activity. This could include money made by selling drugs, property used in manufacturing drugs or vehicles used to traffic drugs.
However, police often take property that was not used in any criminal activity or obtained illegally.
Police know that, if they are seizing only a small amount of cash, most attorneys will not take your case because there is not enough money to justify paying attorney fees. Police are also banking on you not wanting to expose yourself to scrutiny by filing a lawsuit to get your money back or by fighting the lawsuit they file to keep your money.
You can choose to fight the forfeiture by:
1) Filing an answer to the State’s forfeiture complaint within 30 days after you received it; or
2) Filing your own lawsuit for conversion (theft) if the State has not filed suit within a reasonable amount of time.
What is a Forfeiture Complaint and How Do I Fight It?
If your property has been seized by police, they are supposed to file a lawsuit (a complaint) asking the Court to give them the funds, and they are supposed to file it within “a reasonable time.”
If they do not file the lawsuit, you can then file a lawsuit against them asking the Court to return the funds. Either way, your first step is to contact an experienced SC asset forfeiture attorney to help you.
The State must prove that there is probable cause that the money (or vehicle or other property) was connected to illegal drug transactions – meaning that the money was either:
- Located in close proximity to drugs; or
- Was intended to be used for or was proceeds from the purchase of drugs.
Once they have established probable cause, the burden then shifts to you to prove that you received the money from a legitimate source, which can be done with receipts, bank records, or other testimony.
What is an Innocent Owner or a Bona Fide Purchaser?
Sometimes the police will seize a car or other vehicle that does not belong to the person driving – if you are an “innocent owner” who did not know that your car was being used for drug transactions, this is also a reason for the Court to return your property to you.
How Can a SC Asset Forfeiture Attorney Help?
If the police have taken your property, you should immediately contact an experienced SC asset forfeiture lawyer. Your attorney can help you to either:
- Respond to the state’s forfeiture complaint; or
- File a lawsuit against the state if the State does not file suit within a reasonable amount of time.
Your SC drug forfeiture attorney will help you to gather the evidence you will need to recover your property, respond to the state’s lawsuit or file your own lawsuit for conversion, negotiate with the state’s attorneys, and try your forfeiture case to a judge or jury if the state does not return your property.
If the state is trying to take your money, vehicles, or other property, you need a determined and experienced Myrtle Beach asset forfeiture attorney on your side. Call Axelrod and Associates now at 843-353-3449 or send us a message to schedule a free consultation today.