Richardson v. $20,771.00

Decision Date14 September 2022
Docket NumberAppellate Case No. 2020-000092,Opinion No. 28113
Citation437 S.C. 290,878 S.E.2d 868
Parties Jimmy A. RICHARDSON, II, Solicitor for the 15th Judicial Circuit, ON BEHALF OF the 15TH CIRCUIT DRUG ENFORCEMENT UNIT, Appellant, v. TWENTY THOUSAND SEVEN HUNDRED SEVENTY-ONE AND 00/100 DOLLARS ($20,771.00), U.S. Currency and Travis Green, Respondents.
CourtSouth Carolina Supreme Court

James Richard Battle II, of Battle Law Firm, LLC, of Conway, for Appellant.

Benjamin Alexander Hyman, of The Hyman Law Group, P.A., of Conway, and Daniel L. Alban and Robert Frommer, both of Arlington, VA, for Respondent.

Susan King Dunn and Shirene Carole Hansotia, both of Charleston; Jeremiah Williams and Jonathan Ference-Burke, both of Washington, DC; Caitlin M. Giaimo, Amreeta Susy Mathai, Olga Akselrod, Rodkangyil O. Danjuma, and Leah M. Watson, all of New York, NY; and Jay Curran and Michael Hanify, both of Boston, MA, for Amici Curiae American Civil Liberties Union Foundation, American Civil Liberties Union of South Carolina Foundation, National Federation of Independent Business, The South Carolina Appleseed Legal Justice Center, South Carolina for Criminal Justice Reform, Root & Rebound, and Project Not a Statistic.

Jeffrey P. Dunlaevy, of Dunlaevy Law Firm, of Greenville, and Robert Daniel Alt and Jay R. Carson, both of Columbus, OH, for Amici Curiae The Buckeye Institute and Americans for Prosperity Foundation – South Carolina.

Attorney General Alan McCrory Wilson, Chief Deputy Attorney General W. Jeffrey Young, Solicitor General Robert D. Cook, Deputy Assistant Attorney General Harley Littleton Kirkland, and Assistant Attorney General Leon David Leggett III, all of Columbia, for Amicus Curiae Attorney General Alan Wilson.

Alan D. Clemmons, of Clemmons Law Firm, LLC, of Myrtle Beach, and Daniel C. Posner and Ari M. Herbert, both of Los Angeles, CA, for Amici Curiae The Southern Poverty Law Center and the National Police Accountability Project.


Travis Green presents a facial challenge to our civil asset forfeiture statutory scheme following law enforcement's seizure of cash and contraband during the execution of a search warrant. The circuit court concluded sections 44-53-520 and -530 of the South Carolina Code (2018) are facially unconstitutional under both the Excessive Fines Clause and the Due Process Clause of the federal and state constitutions. We reverse the circuit court and remand for a jury trial on the merits.


In the fall of 2017, the Fifteenth Circuit Drug Enforcement Unit ("police" or "law enforcement") received information that Green was selling narcotics in the Myrtle Beach area. Police used a confidential informant to conduct three drug buys; in those buys, Green sold the informant approximately 28 grams of cocaine for a total of $1,400. Law enforcement subsequently obtained an arrest warrant for Green and a search warrant for his residence. During the execution of these warrants, police seized 132 grams of crack cocaine; 32 grams of cocaine; 319 grams of marijuana; 27 Morphine tablets; $20,771 in U.S. Currency ($971 from Green's wallet, and $19,800 from an outdoor garage closet); and two digital scales with white powder residue. Officers charged Green with seven counts of various drug offenses, and about a year later, he pled guilty to distribution of cocaine, 2nd offense, and possession with intent to distribute marijuana, 1st offense. Green was sentenced to concurrent prison terms of fifteen years on the cocaine charge and five years on the marijuana charge.

Eight days after Green's arrest, the Solicitor1 filed a forfeiture petition in the court of common pleas seeking an order forfeiting the $20,771 seized. Green was served and answered the petition. He admitted to the amount of cash seized and requested dismissal or, alternatively, a jury trial. The circuit court requested the parties to brief the relevance of Timbs v. Indiana , ––– U.S. ––––, 139 S. Ct. 682, 203 L.Ed.2d 11 (2019), and the constitutionality of our statutory civil forfeiture scheme. Thereafter, the circuit court determined sections 44-53-520 and -530 violated both the federal and state constitutions. Specifically, the circuit court concluded these two provisions facially violated (1) the Due Process Clause in the Fifth and Fourteenth Amendments to the United States Constitution and Article I, Section 3 of the South Carolina Constitution and (2) the Excessive Fines Clause in the Eighth Amendment to the United States Constitution and Article I, Section 15 of the South Carolina Constitution. In dismissing the action, the circuit court held sections 44-53-520 and -530 facially violated due process by placing a burden on the property owner to prove he is an innocent owner, institutionally incentivizing officials to pursue forfeiture actions, and failing to provide for judicial review or authorization prior to or subsequent to the seizure. The circuit court denied the Solicitor's motion for reconsideration, and the Solicitor appealed.


I. Did the circuit court err in determining that sections 44-53-520 and -530 are facially unconstitutional because they violate the Due Process Clause of the Fifth and Fourteenth Amendments to the United States Constitution and Article I, Section 3 of the South Carolina Constitution ?

II. Did the circuit court err in determining that sections 44-53-520 and -530 are facially unconstitutional because they violate the Excessive Fines Clause of the Eighth Amendment to the United States Constitution and Article I, Section 15 of the South Carolina Constitution ?

Standard of Review

Our precedent imposes a high threshold for finding a statute unconstitutional. "All statutes are presumed constitutional and will, if possible, be construed so as to render them valid." State v. Harrison , 402 S.C. 288, 292-93, 741 S.E.2d 727, 729 (2013). Stated differently, "A legislative enactment will be declared unconstitutional only when its invalidity appears so clearly as to leave no room for reasonable doubt that it violates a provision of the constitution." Joytime Distribs. & Amusement Co. v. State , 338 S.C. 634, 640, 528 S.E.2d 647, 650 (1999). We begin by presuming the validity of our statutory scheme governing civil forfeitures. Because Green chose to assert a facial challenge and not an as-applied challenge, he must demonstrate this scheme is unconstitutional in all its applications. Knotts v. S.C. Dep't of Nat. Res. , 348 S.C. 1, 6, 558 S.E.2d 511, 513 (2002) (noting the party asserting a constitutional challenge bears the burden); State v. Legg , 416 S.C. 9, 13-14, 785 S.E.2d 369, 371 (2016) ("A facial challenge is ‘the most difficult ... to mount successfully,’ as it requires the challenger show the legislation at issue is unconstitutional in all its applications." (quoting City of Los Angeles v. Patel , 576 U.S. 409, 415, 135 S.Ct. 2443, 192 L.Ed.2d 435 (2015) )). Thus, "[u]nless the statute is unconstitutional in all its applications, an as-applied challenge must be used to attack its constitutionality." Travelscape, LLC v. S.C. Dep't of Revenue , 391 S.C. 89, 109 n.11, 705 S.E.2d 28, 39 n.11 (2011) (quoting Williams v. Pryor , 240 F.3d 944, 953 (11th Cir. 2001) ).

These principles guide us as we navigate the waters of constitutionality, and as we recently acknowledged, "We begin our analysis ... with the fundamental, firmly-established principle that ‘in the General Assembly rests plenary legislative power, limited only by the constitutions, State and Federal. Legislation not expressly or impliedly inhibited by one or the other of these documents may be validly enacted.’ " Pinckney v. Peeler , 434 S.C. 272, 285, 862 S.E.2d 906, 913 (2021) (quoting Ashmore v. Greater Greenville Sewer Dist. , 211 S.C. 77, 96, 44 S.E.2d 88, 97 (1947) ).


Our civil asset forfeiture statutes originate from the Uniform Controlled Substances Act of 1970. See 21 U.S.C. § 881 ; David R. Fine, Bennis v. Michigan and Innocent Owners in Civil Forfeiture: Balancing Legitimate Goals with Due Process and Reasonable Expectations , 5 Geo. Mason L. Rev. 595, 605 & n.91 (1997). Forty-eight states adopted this model statute, which was created by the National Conference of Commissioners on Uniform State Laws. Although our statutory scheme essentially implemented the comparable federal scheme, the earliest tenets of civil asset forfeiture date back to biblical times and were expanded during the early English common law period. See Calero-Toledo v. Pearson Yacht Leasing Co. , 416 U.S. 663, 680-83, 94 S.Ct. 2080, 40 L.Ed.2d 452 (1974) (recounting a brief history of civil asset forfeiture).

Here, the circuit court ruled two statutes in our civil forfeiture scheme violate due process: (1) section 44-53-520, which lists the property subject to seizure and the process for law enforcement to make a seizure, and (2) section 44-53-530, which sets forth the process for the solicitor to carry out a forfeiture and disburse forfeited property. Significantly, this statutory scheme is civil in nature. See Mims Amusement Co. v. S.C.L. Enf't Div. , 366 S.C. 141, 150 n.4, 621 S.E.2d 344, 348 n.4 (2005) ("The critical difference between civil forfeiture and criminal forfeiture is the identity of the defendant." (quoting United States v. Croce , 345 F. Supp. 2d 492, 494 (E.D. Pa. 2004) )). In civil forfeiture proceedings, the state proceeds against a thing (rem) whereas in criminal forfeiture, it proceeds against a human being (personam). Id. Our forfeiture statutes address two types of property: (1) contraband per se, which is property illegal to possess (such as cocaine, heroin, and other illegal narcotics), and (2) derivative contraband, which is property normally legal to possess (such as cash or vehicles) but which becomes contraband when used for illegal purposes. Id. at 149-50, 621 S.E.2d at 348.

After the solicitor commences forfeiture proceedings, "[n]otice of hearing or rule to show cause must be directed to...

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