Could a police department buy photo-lineup equipment with money forfeited in drug cases?

Plain-English summary

Lexington’s police chief asked whether confiscated drug money could pay for a computerized video imaging system to prepare suspect photo lineups. The department’s memo said agents making undercover purchases often knew dealers only by street names, and waiting for another agency to make a lineup delayed identification. The Assistant Deputy AG applied the quoted forfeiture provision, which directed law-enforcement forfeiture accounts to drug enforcement activities and prohibited their use to supplant operating funds.

The author distinguished equipment primarily useful for drug enforcement from a traffic-safety program whose overriding goal was not drug enforcement. On the chief’s account, this system would be used mainly for drug cases; occasional use for other crimes would not change his conclusion. He also treated the equipment purchase as nonrecurring. He concluded the purchase was authorized under the forfeiture law on those facts. The letter was informal and did not approve every general-purpose imaging purchase.

Currency note

This opinion was issued in 1997. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Did any possible use in other crimes defeat the purchase? A: No. The author accepted incidental use for other crimes because he understood the system would be used primarily for drug enforcement.

Q: Could forfeiture proceeds replace a department’s regular budget? A: No. The statutory passage quoted in the letter prohibited using those accounts to supplant current or future operating funds.

Q: Why did this photo-lineup system qualify on the stated facts? A: The agents needed faster identification of suspected drug dealers known by street names; the author connected the system’s principal use to drug enforcement.

Background and statutory framework

The quoted forfeiture provision restricted law-enforcement accounts to drug enforcement, separately addressed prosecution accounts, and barred supplanting operating funds. The letter compared earlier office analyses of a training center, deputy handguns, traffic-safety vehicles, and radar equipment to identify the proposed system’s principal purpose.

Citations and references

Statutes discussed: 44-53-530(g); Section 44-53-520. Prior AG guidance: Op. No. 92-74 (December 3, 1992); informal opinion of December 9, 1996.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/july-10-1997-1/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/12/97july10roth.pdf

Original opinion text

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The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARLES MOLONY CONDON
ATTORNEY GENERAL

July 10, 1997

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William M. Roth, Chief of Police
Lexington Police Department
P. 0. Box 397
Lexington, South Carolina 29071
Re: Informal Opinion
Dear Chief Roth:
You have sought an opinion to determine "the legality of using confiscated drug monies to purchase a computerized, video imaging system used in developing lineups used for identification purposes involving this type of criminal activity." You have included with your request a Memorandum from Lt. S. B. Day, which sets forth the following facts:
[a]s you are aware, our Department has experienced a 150% increase in narcotic activity from 1995 through 1996. This is a continuation of increases we have been experiencing over the past several years. The Department began aggressively targeting the areas known for this type of activity during the past several years and continue to do so to this date. We work with individuals that serve as agents for our Department to target and purchase illegal drugs from suspected dealers in the high, drug activity areas. Our police officers are familiar with the people that frequent these areas and can recognize him/her on site. However, those serving as agents for the Department tend to be from other areas and are not familiar with the suspected drug dealer by his/her true name; only by the suspected drug dealer's "street" name.

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POST OFFJCE Box 11549

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COLUMBIA,

s.c. 29211-1549

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TELEPHONE:

803-734-3970

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FACSIMILE: 803-253-6283

Chief Roth
Page 2
July 10, 1997
Therefore, the Department has realized the necessity of having an accessible imaging system to create and produce photo lineups in a more expedient manner as this is the method of positive identification of a subject by the agent.

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Time is of the essence in securing an arrest as this type of subject is extremely mobile and does not remain in the area for a long period of time. Presently, we are dependent upon assistance from other agencies that are equipped with this type system. The problem we are encountering is the turnaround time in obtaining a photo lineup for use in our criminal investigation by having to depend upon outside sources to produce this lineup. This definitely slows down the process of identifying and locating subjects; therefore, also slowing down the arrest process to remove these subjects from the street which helps in our effort to reduce drug transactions. Law I Analysis

S.C. Code Ann. Sec. 44-53-530(g) provides as follows: I

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(g) [a]11 forfeited monies and proceeds from the sale of forfeited property as defined in Section 44-53-520 must be retained by the governing body of the local law enforcement agency or prosecution agency and deposited in a separate special account in the name of each appropriation agency. These accounts may be drawn on and used only by the law enforcement agency or prosecution agency for which the account was established. For law enforcement agencies, the accounts must be used for drug enforcement activities and for prosecution agencies, the accounts must be used in matters relating to the prosecution of drug offense and litigation of drug-related matters. These accounts must not be used to supplant operating funds in the current or future budgets. Expenditures from these accounts for an item that would be a recurring expense must be approved by the governing body before purchase or, in the case of a state law enforcement agency or prosecution agency, approved as provided by law.

Chief Roth
Page 3
July 10, 1997
In Op. Atty. Gen., Op. No. 92-74 (December 3, 1992), we commented with respect to a similar provision that

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[a]ny examination of the use of drug forfeiture funds obviously involves a case by case analysis. For instance, an opinion of this Office dated August 1, 1991 determined that to the extent a law enforcement training center is not used directly or indirectly for drug enforcement activities, drug forfeiture funds could not be used for the center. Another opinion of this Office dated August 19, 1991 dealt with the question of whether handguns for deputies could be purchased from funds derived from drug forfeitures and seizures. The inquiry stated that as to the small law enforcement agency involved, each and every law enforcement officer was involved in drug arrests, eradication and/or deterrent activities. The opinion, referencing the involvement in drug arrests and enforcement, determined that drug forfeiture funds could be used to purchase handguns for the deputies. That same opinion concluded that the purchase of automobiles for a traffic safety program to be funded by a federal grant, was not a use for drug enforcement activities. While one of the purposes of the program was to "decrease the use of rural roads for drug trafficking activities" there was no doubt that the principal and overriding objective of such program was traffic safety. We thus stated:
[a]s referenced above, it appears that
while a purpose of the program at issue does
include decreasing drug trafficking on rural
roads, the primary intent of the program is
traffic safety. As a result, it does not appear
that funds which "may be drawn on and used
only ... for drug enforcement activities" could be
utilized to purchase vehicles which would be
used in the program.
And in an Informal Opinion dated December 9, 1996, I concluded that a radar unit could be purchased with drug forfeiture funds because of the strong connection between the use

Chief Roth
Page 4
July 10, 1997
of radar and the interception of drugs being transported on the highways. I recognized that such a radar unit as equipment was a non-recurring expense. Moreover, I found that
... it is now fully recognized that a traffic control device such as radar also serves an important purpose in narcotics interdiction. ... In view of the close correlation, recognized in the authorities above, between the use of radar in traffic stops for speeding and drug enforcement and interdiction, I am of the opinion that a court could construe the purchase of a radar unit as falling within the requirements of § 44-53-530 (g) as an expenditure for "drug enforcement activities."

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Likewise, I am of the view that it is not unreasonable to purchase the type of equipment referenced in your letter with drug forfeiture monies. Certainly such expenditure would be for a non-recurring expense. Moreover, it is true that typically drug dealers use "street" names and having "an accessible imaging system to create and produce photo lineups in a more expedient manner" would be for "drug enforcement activities" within the limitations of the drug forfeiture statute. While such equipment may be used for non-drug-enforcement (other crimes), it is my understanding that the equipment in question would be used primarily for drug enforcement activities. Thus, the rationale of the earlier opinions referenced above would be applicable. The firearms analogy is particularly persuasive here. Thus, in my judgment, the referenced purchase would be authorized pursuant to the Drug Forfeiture law. This letter is an informal opinion only. It has been written by a designated Assistant Deputy Attorney General and represents the position of the undersigned attorney as to the specific questions asked. It has not, however, been personally scrutinized by the Attorney General nor officially published in the manner of a formal opinion. With kind regards, I am Very truly yours,

1:l{-k;t:rt D. Cook
Assistant Deputy Attorney General
RDC/an