The Forfeiture of Drug Money

August 22, 2022
By Robert Phillips, Deputy District Attorney (Ret). 

The Forfeiture of Drug Money: 

When Dereck McClellan was found by police in his car in a South Carolina gas station, passed out, he got popped for public intoxication and having an open bottle of alcohol in his car. A search of his vehicle incident to arrest resulted in the recovery of $69,940.50 in cash.  The U.S. Department of Homeland Security eventually instituted forfeiture proceedings, arguing that the money was so-called “drug money” (i.e., money derived from trafficking in drugs) despite McClellan’s claims to the contrary. 

In support of its argument, Homeland Security identified several relevant factors; i.e., the presence of a marijuana-laced “blunt” found in the car, along with two California medical marijuana cards belonging to McClellan and his girlfriend.  Also, trace amounts of cocaine were found on the money.  The federal district court granted summary judgment in favor of Homeland Security, allowing the forfeiture of the money.  McClellan appealed.

The Fourth Circuit Court of Appeal reversed in a decision reported at United States v. McClellan (4th Cir. Aug. 10, 2022 44 F.4th 200). Under federal law, prosecutors need only show by a “preponderance of the evidence” that seized property is connected to a crime in order to secure a civil forfeiture of that property.  While the Government convinced the federal district (trial) court that the facts painted a picture “definitively establishing” that the cash was drug money, the Fourth Circuit felt that the evidence was not quite so clear.

Siding with McClellan, ....

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