South Carolina Code 16-8-260. Seizure of firearms, ammunition, electronic records, or money; forfeiture actions
(2) Any written or electronic communications, records, money, negotiable instruments, or valuables may be seized by a law enforcement officer or agency when the law enforcement officer or agency reasonably believes that the written or electronic communications, records, money, negotiable instruments, or valuables have been used in a pattern of criminal gang activity or have been used for the purpose of benefiting, promoting, or furthering the interests of a criminal gang.
Terms Used In South Carolina Code 16-8-260
- Acquittal:
- Judgement that a criminal defendant has not been proved guilty beyond a reasonable doubt.
- A verdict of "not guilty."
- Appeal: A request made after a trial, asking another court (usually the court of appeals) to decide whether the trial was conducted properly. To make such a request is "to appeal" or "to take an appeal." One who appeals is called the appellant.
- Civil forfeiture: The loss of ownership of property used to conduct illegal activity.
- Common law: The legal system that originated in England and is now in use in the United States. It is based on judicial decisions rather than legislative action.
- Contraband: means any real or personal property, including money, that is owned by, in the possession of, or subject to the control of a criminal gang member and which is acquired by, derived from, or traceable to criminal gang activity. See South Carolina Code 16-8-230
- Criminal gang: means a formal or informal ongoing organization, association, or group that consists of five or more persons who form for the purpose of committing criminal activity and who knowingly and actively participate in a pattern of criminal gang activity. See South Carolina Code 16-8-230
- Dismissal: The dropping of a case by the judge without further consideration or hearing. Source:
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Firearm: means a weapon which is designed to or readily may be converted to expel a projectile by the action of an explosive, or the frame or receiver of that weapon. See South Carolina Code 16-8-10
- Indictment: The formal charge issued by a grand jury stating that there is enough evidence that the defendant committed the crime to justify having a trial; it is used primarily for felonies.
- Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
- Law enforcement officer: means :
(a) an officer or employee of the United States, a state, political subdivision of a state, or the District of Columbia, who is authorized to enforce laws and is acting within his official capacity;
(b) members of the National Guard;
(c) members of the organized militia of a state or territory;
(d) members of the Armed Forces of the United States. See South Carolina Code 16-8-10 - Pattern of criminal gang activity: means the commission or attempted commission of, commission as an accessory before or after the fact to, or solicitation or conspiracy to commit, by a criminal gang member, while knowingly and actively participating in criminal gang activity, four or more of the following offenses occurring within a two-year period, provided that at least three of these offenses occurred after July 1, 2007:
(a) a violent offense as defined in § 16-1-60 committed as a part of criminal gang activity;
(b) financial transaction card crimes as defined in Chapter 14 of Title 16 committed as a part of criminal gang activity;
(c) first degree lynching as defined in § 16-3-210 committed as a part of criminal gang activity;
(d) second degree lynching as defined in § 16-3-220 committed as a part of criminal gang activity;
(e) breaking into a motor vehicle as defined in § 16-13-160 committed as a part of criminal gang activity;
(f) grand larceny as defined in § 16-13-30 committed as a part of criminal gang activity;
(g) blackmail as defined in § 16-17-640 committed as a part of criminal gang activity;
(h) malicious injury to property as defined in Sections 16-11-510, 16-11-520, 16-11-530, and 16-11-535 committed as a part of criminal gang activity;
(i) drug offense as defined in §§ 44-53-370 and 44-53-375 committed as a part of criminal gang activity;
(j) harassment, stalking, or aggravated stalking as defined in Article 17, Chapter 3 of Title 16 committed as a part of criminal gang activity;
(k) pointing a firearm at any person as defined in § 16-23-410 committed as a part of criminal gang activity;
(l) discharging a firearm at or into dwellings, structures, enclosures, vehicles, or equipment as defined in § 16-23-440 committed as a part of criminal gang activity;
(m) the common law offense of assault and battery of a high and aggravated nature committed as a part of criminal gang activity; or
(n) the common law offense of obstruction of justice committed as a part of criminal gang activity. See South Carolina Code 16-8-230 - Preliminary hearing: A hearing where the judge decides whether there is enough evidence to make the defendant have a trial.
- Probable cause: A reasonable ground for belief that the offender violated a specific law.
- Trial: A hearing that takes place when the defendant pleads "not guilty" and witnesses are required to come to court to give evidence.
(3) Any contraband, as defined in § 16-8-230, or other asset owned or titled in the name of the gang or an individual gang member may be seized by a law enforcement officer or agency when the law enforcement officer or agency reasonably believes that the contraband or asset has been used in a pattern of criminal gang activity or has been used for the purpose of benefiting, promoting, or furthering the interests of a criminal gang.
(B) The solicitor or another prosecuting attorney shall initiate, in a civil action, forfeiture proceedings by petition in a court of competent jurisdiction regarding any property seized pursuant to the provisions of this section within ninety days of seizure. The solicitor or another prosecuting attorney must provide notice of the filing of the petition to those criminal gang members who become known to law enforcement officials as a result of the seizure and any related arrests, and to any person learned by law enforcement officials to be the owner of any of the property involved. After initial notice of the filing of the petition, the court must ensure that all persons so notified continue to receive notice of all subsequent proceedings related to the property.
(C) A person who claims an interest in any seized property, in order to assert a claim that the property should not be forfeited, must file a notice with the court, without the necessity of paying costs, of the intent to establish either of the following:
(1) that the person asserting the claim did not know and could not have known of the property’s use in the commission of a pattern of criminal gang activity or in furthering the interests of the criminal gang; or
(2) that the law enforcement officer lacked the requisite reasonable belief that the property was or would be used in the commission of a pattern of criminal gang activity or in furtherance of the interests of the criminal gang.
(D) In any hearings held and determinations made, pursuant to this section, the court may receive and consider, in making a determination of reasonable cause, all evidence admissible in determining reasonable or probable cause at a preliminary hearing together with inferences arising from the evidence presented.
(E) An acquittal or dismissal in a criminal proceeding must not preclude civil proceedings under this section. However, for good cause shown, on motion by the solicitor or another prosecuting attorney, the court may stay civil forfeiture proceedings during the criminal trial for a related criminal indictment or information alleging a violation of this section. A stay is not available pending an appeal.
(F) Except as otherwise provided by this section, all proceedings under this section are governed according to the common law, by statutory provisions relating to civil remedies and procedures, and the rules of civil procedure established for the circuit court. Additionally, any action under the provisions of this section may be consolidated with any other action or proceeding pursuant to this section relating to the same property on motion of the solicitor or prosecuting attorney.
(G) The forfeiture provided for in this section must be decided by the court. The hearing on the claim must be held within sixty days after service of the petition, unless continued for good cause. The solicitor or prosecuting attorney has the burden of proof to establish by a preponderance of the evidence that the property is subject to forfeiture.
(H) A person who asserts a successful claim in accordance with subsection (C) must be awarded the seized property by the court. All property to which no claim is filed, or to which no successful claim is made may be destroyed, sold at a public or private sale, retained for use by the seizing agency, or transferred without charge to any law enforcement agency of the State for use by the agency.