Detectives let their imaginations run wild on Jan. 13, 2019, when a rural South Carolina police officer popped the trunk of a man’s vehicle and found cash. Lots of it. Including bills and spare change, the total came to $69,940.50.
Nobody had evidence that the money was dirty, but the Greer Police Department decided to seize and keep the full amount anyway. State and federal laws make the process easy in South Carolina. Using a moneymaking scheme called civil forfeiture, prosecutors do not have to prove anything beyond a reasonable doubt.
They only need to connect assets to illegal activity by a “preponderance of the evidence,” meaning their claims are more likely correct than not. The standard allows the government to forfeit property without gathering the kind of evidence needed for a criminal conviction. Everything tilts in the prosecution’s favor, yet the discovery in Greer pushed the limits of how little is necessary to win in court.
The officer who conducted the search arrived at a Citgo service station around 6:20 a.m. and found Dereck McClellan asleep in his car more than 30 miles north of his Williamston home. A marijuana blunt in the ashtray and empty cognac bottle on the passenger’s seat led to an arrest, and McClellan pleaded guilty less than one month later to public intoxication and transporting alcohol in an open container.
The criminal case was open-and-shut, yet neither offense had anything to do with the trunkful of cash. Carrying any amount of currency is legal in the United States. So the government could not use the mere existence of the funds as proof of wrongdoing. Detectives needed something more concrete, but all they had were guesses.
Initially, they imagined that maybe the money came from drug trafficking. Yet they never specified what kinds of drugs supposedly were involved, where or when the drugs were sold, or the quantity sold or who sold them. Alternately, detectives imagined that maybe the money came from the sale of knockoff designer clothes at the Greenville shop owned by McClellan’s girlfriend. Yet police never backed up their guesses with facts.
Besides the problem with lack of evidence, a separate Myrtle Beach case was raising questions about due process and excessive fines. A Horry County judge declared civil forfeiture unconstitutional in his circuit on Aug. 28, 2019, setting up a high-stakes appeal at the South Carolina Supreme Court.
The nonprofit organization Institute for Justice, which is defending the Myrtle Beach property owner, has argued for a statewide ban on civil forfeiture. That would be a problem for Greer police, but the department sidestepped the issue by seizing the cash from McClellan’s vehicle and quietly transferring the paperwork to the U.S. attorney’s office.
By making a federal case out of a local matter, police avoided any risk that they would be forced to return the cash during forfeiture proceedings — even if the South Carolina Supreme Court rules that the process is illegal.
Bypassing state law also fixed the problem of weak evidence. Although federal law requires prosecutors to meet the same “preponderance” standard that applies in South Carolina, the U.S. District Court in Greenville accepted speculation and innuendo as substitutes. In fact, the federal court allowed the government to forfeit the funds on Sept. 22, 2020, without even giving McClellan a trial.
If the ruling stands, Greer police would benefit financially. Under a program called “equitable sharing,” the federal government returns about 80% of forfeiture proceeds directly to their local accomplices as a kickback.
McClellan’s only hope now is a lawsuit pending in the 4th U.S. Circuit Court of Appeals. The case, which will affect civil forfeiture activity in Maryland, North Carolina, South Carolina, Virginia, and West Virginia, hinges on the fundamental promise that people in the United States are innocent until proven guilty.
As the Institute for Justice argues in a brief supporting McClellan’s case, he should not have to prove anything to prevail. The U.S. Constitution and the Civil Asset Forfeiture Reform Act, which Congress passed in 2000, put the burden of proof squarely on the government.
Forfeiture serves a purpose when done correctly in criminal court, but property owners have rights. Speculation and innuendo should not be enough to deprive anyone of their possessions.
Robert Johnson and Caroline Grace Brothers are attorneys at the Institute for Justice in Arlington, Virginia.
