Pope v. Gordon

• Decision Date: 03 July 2006
• Docket Number: No. 26179.,26179.
• Court: South Carolina Supreme Court
• Parties: Thomas E. POPE, as Solicitor, Sixteenth Judicial Circuit, Petitioner, v. Willie Edward GORDON, Jr., and Twenty-five Thousand Three Hundred Forty-one and 09/100's (25,341.09) Dollars in U.S. Currency, One 1984 GMC Pickup Truck; Two Motorola Cellular Phones (Serial Numbers; SUF1857M and SUG1049B 230 L012QT16WF1); and One Hundred Twenty-EIght & no/100s (128.00) Dollars in U.S. Currency, Respondent.

633 S.E.2d 148

Thomas E. POPE, as Solicitor, Sixteenth Judicial Circuit, Petitioner, v. Willie Edward GORDON, Jr., and Twenty-five Thousand Three Hundred Forty-one and 09/100's (25,341.09) Dollars in U.S. Currency, One 1984 GMC Pickup Truck; Two Motorola Cellular Phones (Serial Numbers; SUF1857M and SUG1049B 230 L012QT16WF1); and One Hundred Twenty-EIght & no/100s (128.00) Dollars in U.S. Currency, Respondent.

No. 26179.

Supreme Court of South Carolina.

Heard June 6, 2006.

Decided July 3, 2006.

Kristie H. Jordan, of York, for Petitioner.

Leland Bland Greeley, of Rock Hill, for Respondent.

Chief Justice TOAL:

The court of appeals held that the State failed to provide probable cause that the property sought to be forfeited was traceable to illegal drug activity. We affirm.

FACTUAL/PROCEDURAL BACKGROUND

In 1996, William Edward Gordon, Jr. (Respondent) was arrested for trafficking in crack cocaine. At the time of his arrest, Respondent owned a car cleaning and detailing business named Gordon's Car Cleaning Service. The primary customers of the service were automobile dealerships and individuals.

The Rock Hill Police Department arrested Respondent during a 1996 investigation. The Police Department's investigation of Respondent began in 1994. In January of 1994, the Police Department conducted a controlled buy of illegal drugs from Respondent. In February of 1994, the Police Department obtained a search warrant for Respondent's home and recovered crack cocaine and marijuana. While conducting an additional search at Respondent's home, the Police Department discovered crack cocaine in a well house near the home. Respondent plead guilty to possession of marijuana which was recovered during the 1994 investigation.

In September of 1996, the Police Department began a second investigation of Respondent following the arrest of another crack dealer in the Rock Hill area who identified Respondent as the supplier. In addition, the same person identified Tommy Rhinehart (Rhinehart) as a dealer.

Rhinehart agreed to cooperate with the Police Department after he was arrested for possession of crack cocaine and other narcotics. The undisputed facts outlined by the court of appeals relating the sting operation are as follows:

The next day, Rhinehart met with Gordon to discuss future transactions. During the course of the conversation, Rhinehart told Gordon that he had "flushed" the crack cocaine during the Department's search of his residence. On September 26, 1996, Gordon and his nephew, Spencer, gave Rhinehart another bag of crack cocaine. Spencer stayed with Rhinehart while he sold some of the crack cocaine. On September 27, 1996, Rhinehart met with agents and turned over the proceeds from the sale and the remaining crack cocaine. At that time, the agents gave Rhinehart $500 in marked money to pay Gordon for the crack cocaine that he had "fronted" him. In a recorded conversation, Rhinehart set up another transaction with Gordon. Gordon indicated that he needed to contact Spencer. Rhinehart was then instructed to meet Spencer at Gordon's car wash. At the car wash, Spencer gave Rhinehart two bags of crack cocaine, weighing 9.4 grams and 9.8 grams respectively, and collected $500 for a previous transaction. Rhinehart then left, met with the agents, and turned over the crack cocaine.

On September 30, 1996, Rhinehart paged Gordon to arrange a meeting time so that he could pay for the two additional bags of crack cocaine. The agents gave Rhinehart $1,000 in marked money and equipped him with a surveillance wire. Rhinehart met with Spencer at a designated location. He then gave Spencer the money received from the sale of the crack cocaine that was purchased earlier from Gordon. Spencer left and told Rhinehart he would return with more crack cocaine. Spencer met Gordon, who was driving the pickup truck, at the car wash. Spencer left the car wash, drove to NationsBank, and made a deposit. Shortly thereafter, agents arrested Spencer and searched him. The agents found a bank deposit receipt for account number 790167308, the business account for Gordon's car wash. The balance of the account was $22,209.85, which included the deposit.

During the same time period, Gordon was arrested while driving his pickup truck. He was found to be in possession of two cellular phones as well as $1,584 in cash, $880 of which was law enforcement funds given to Spencer earlier by Rhinehart. Pursuant to this arrest, the State seized the following property: the NationsBank operating account of Gordon's car wash business, $22,209.85 plus $726.24 from the payroll account; the $1,584 in cash; the pickup truck; and two cellular phones.

The forfeiture action also included seizures of cash in the amount of $821 and $128. On September 29, 1996, agents seized $821 in cash from Gordon when he was arrested on unrelated warrants during the search of another person's residence. On October 5, 1996, Gordon was arrested for obstruction of justice. While Rhinehart was wearing a surveillance wire, Gordon offered him $5,000 to leave town and not testify against him. At the time of the arrest, the agents seized $128 in cash from Gordon.

Pope v. Gordon, 359 S.C. 572, 598 S.E.2d 288 (Ct.App.2004).

Ultimately, Respondent was convicted of trafficking in crack cocaine and sentenced to thirty years imprisonment and payment of a $50,000 fine. The State then filed this forfeiture action, seeking to confirm the seizures made as a result of this investigation were proceeds of illegal drug activity.

The circuit court ordered that all seized property, with the exception of $128 in "marked" cash be returned to Respondent. The court found that the State failed to meet its burden of showing probable cause that there was a nexus between the illegal drug activity and the property sought to be forfeited. The State appealed and the court of appeals affirmed. As a result, the State sought and this Court granted certiorari to review the following issue:

Did the court of appeals err in holding that the State failed to establish probable cause that the property sought to be forfeited was traceable to illegal drug transactions?

STANDARD OF REVIEW

An action for forfeiture of property is a civil action at law. State v. 192 Coin-Operated Video Game Machs., 338 S.C. 176, 525 S.E.2d 872 (2000). In an action at law, tried without a jury, the appellate court standard of review extends only to the correction of errors of law. Okatie River, L.L.C. v. Southeastern Site Prep, L.L.C., 353 S.C. 327, 577 S.E.2d 468 (Ct.App.2004). The trial judge's findings of fact will not be disturbed on appeal unless the findings are wholly unsupported by the evidence or controlled by an erroneous conception of the application of the law. Gordon v. Colonial Ins. Co., 342 S.C. 152, 536 S.E.2d 376 (Ct.App.2000).

LAW / ANALYSIS

The State argues that the court of appeals erred in holding that the State failed to establish probable cause that the property sought to be forfeited was traceable to illegal drug transactions. We disagree.

The purpose of a forfeiture hearing is to confirm that the state had probable cause to seize the property forfeited. Medlock v. One 1995 Jeep Cherokee VIN 1JCWB7828FT129001, 322 S.C. 127, 131, 470 S.E.2d 373, 376 (1996). The State has the initial burden of demonstrating probable cause for the belief that a substantial connection exists between the property to be forfeited and the criminal activity defined by statute. United States v. Thomas, 913 F.2d 1111, 1114 (4th Cir.1990) (quoting Boas v. Smith, 786 F.2d 605, 609 (4th Cir.1986)). If probable cause is shown, the burden then shifts to the owner to prove that he or she was not a consenting party to, or privy to, or did not have knowledge of, the use of the property which made it subject to seizure and forfeiture. Medlock, 322 S.C. at 131, 470 S.E.2d at 376 (quoting S.C.Code Ann. § 44-53-586(b)(1) (2002)).

The relevant statute outlines that the following are subject to forfeiture in part:

all property including, but not limited to, monies, negotiable instruments, securities, or other things...