SEIZURES IN DRUG CASES PAY FOR POLICE DOG TEAM, KEEP AIRCRAFT FLYING

Critics Say Law Gives Officers Too Much Power, Profit Motive

Thousands of dollars that help Greenville County sheriff's deputies
pay for their dog team and aircraft maintenance are the fruits of
what critics say are state laws making it too easy for authorities to
seize alleged drug money.

The Sheriff's Office spent $107,870 in forfeited drug money last
year, much of it on its K-9 team, two helicopters and a Cessna
airplane, according to records obtained by The Greenville News
through the South Carolina Freedom of Information Act.

Three expenses totaling $13,917 were labeled "confidential law
enforcement equipment" with the largest of those, $12,309, classified
under "operational assets." More than $7,800 went to training and travel.

Chief Deputy John Eldridge said the primary goal of the seizures is
to take drugs off the street and that getting the money is secondary.

Supporters said forfeitures help combat the flow of drugs by taking
away dealers' profits, while helping pay expenses that could
otherwise come out of taxpayers' pockets. Without drug forfeitures,
deputies could have to scale back an air fleet used not only for law
enforcement but also for firefighting, Eldridge said.

Critics, though, said state laws leave too much room for authorities
to take money and possessions from the innocent and warned that the
money encourages police to operate with a profit motive.

Law enforcement agencies get 75 percent of forfeited money, while
prosecuting agencies get 20 percent, and 5 percent goes into the
state's general fund. Authorities must use the money for training or
to enforce drug laws.

Deputies don't plan for drug forfeitures in budget estimates, Eldridge said.

South Carolina received a D-plus for its civil forfeiture laws in
"Policing for Profit: The Abuse of Civil Asset Forfeiture," according
to a review by the Institute for Justice, a Virginia-based law firm
focusing on civil liberties. T he review card hammered the state for
allowing the government to take property based on probable cause, the
lowest standard, and permitting law enforcement to keep the lion's
share of the proceeds. With 29 states receiving Ds, South Carolina
was about in the middle of the curve in the study.

"It's hard to say no to the money," said Marian Williams, one of the
authors and assistant professor of government and justice studies at
Appalachian State University. "I think that is probably why there
hasn't been meaningful reform in a number of states."

One of the Upstate's largest forfeitures in history helped Walt
Wilkins, the new 13th Circuit solicitor, make his mark in his
previous job at the U.S. Attorney's Office. In a video poker case he
prosecuted, a Greer businessman was ordered to pay $9 million he
netted from the operation.

The $1.3 million that has been recovered so far has paid for upgrades
at the Greer Police Department, including new handguns, rifles and
electronic surveillance equipment. Wilkins said that as solicitor he
sees forfeiture as a way of combating drug dealers by taking away
their profits.

"I certainly will use whatever forfeiture tools that are available to
me," he said.

The largest portion of the Sheriff's Office money, $37,561, was for
aircraft parts, repairs and maintenance, while the next highest
amount, $25,136, went to operational assets, including a patrol dog
and K-9 equipment.

Other expenses included a $9,017 "multi-gas monitor" for meth
clean-up and $3,665 for fuel.

In state forfeiture cases, assets such as homes, cars and cash are
seized through a separate, civil action in which the actual asset is
the subject of the suit, Wilkins said.

People exonerated of a drug offense would have to prove the money is
legitimate and in fact belongs to them, just as someone who might
have unwittingly had assets taken that weren't related to illegal
activity, Wilkins said.

In the civil action, establishing that assets are related to illegal
activity is easier than if it were a criminal matter, where proof
beyond a reasonable doubt is necessary instead of the civil burden of
"preponderance of evidence," where the standard is that more evidence
exists than not, Wilkins said.

"Just because someone is acquitted, they might not have an interest
in that money to ask for it back," Wilkins said. "It may not be
theirs. If they say it's theirs, they're going to have to come up
with a good explanation on why it was sitting next to some drugs."

Beattie Ashmore, a Greenville defense attorney, said many forfeitures
aren't contested because hiring a lawyer and gathering all the
necessary documents sometimes costs more than the property is worth.

"If the amount of the forfeiture is $5,000 or less, you can't afford
an attorney under those circumstances," said Ashmore, a former
federal prosecutor who ran the forfeiture unit for the U.S.
Attorney's Office in 1990.

The forfeiture playing field that Wilkins and Ashmore faced as
federal prosecutors has a set of rules different from the one they
encounter in state court.

Federal law allows for both criminal and civil forfeiture, while
state law provides for civil forfeiture only, Wilkins said. T he
Greer video poker case was a criminal forfeiture, a way of punishing
someone for a crime. In civil forfeitures, the burden is put on the
owner to show it was obtained legitimately. Williams said her top
concern about civil forfeitures is that many states allow law
enforcement to take items in the absence of a conviction and
sometimes even an arrest.

"You're basically being punished while not even being convicted of a
crime," Williams said. Critics said that some people who share homes
with drug dealers but have nothing to do with their crimes sometimes
have their money seized, same as the dealers. "The answer to that,"
Wilkins said, "is they have every opportunity to make a claim against
that particular money."

Eighth Amendment protections against excessive punishment limit what
authorities can take. State legislators passed a law in 2002
reflecting those protections, setting minimum drug amounts that must
be involved for authorities to seek forfeiture against cars, boats
and airplanes used to transport drugs.

Those amounts include more than a pound of marijuana, more than two
grains of heroin and more than 10 grains of crack or powder cocaine.

"A joint in the ashtray is not proportionate to the forfeiture of an
$80,000 Mercedes," Ashmore said.

Critics said that police often pressure suspects into consenting to
forfeitures on the scene of alleged crimes.

Eldridge said that signing the forms that deputies carry could
demonstrate cooperation that a judge might later take into
consideration. Ashmore said he would advise clients against signing
consent orders but that if they do, it is still possible to contest
forfeitures.

Williams and her co-authors called for several reforms with
abolishment of civil forfeiture at the top of the list. But short of
that, they want more tracking of forfeited revenue and law
enforcement to meet higher standards of proof in forfeiture proceedings.

Putting forfeited money in a county or state general fund could help
take away profit motive, they said.

Wilkins said federal prosecutors have more forfeiture tools at their
disposal than state prosecutors. State law, for example, doesn't
allow law enforcement to take assets in fraud cases.

"I would love to see our Legislature consider some additional
forfeiture tools," Wilkins said.