If you were involved in a criminal investigation and either charged with a criminal offense or released with warning, you may still be subject to a seizure and forfeiture of your property. Typically, police officers will seize your property if it is “prima facie contraband” (property that is illegal on its face). However, police and law enforcement are also able to confiscate and move fore forfeiture of your property when it is “derivative contraband”. The process by which law enforcement officers move to forfeit property that they claim is “derivative contraband” is different from forfeiture of prima facie contraband. The State faces a higher burden in proving that the alleged property was connected to illegal activity. If you or a family member have had your cash, cars, weapons or even your homes seized by local or state law enforcement officers, contact an experienced New Jersey Forfeiture Attorney today. Do not let the State use its powers to impede on your constitutional rights.
Proetta & Oliver is a New Jersey law firm that specializes in property forfeitures. Firm partner and former New Jersey Deputy Attorney General, William C. Fay, Esq., heads our Forfeiture Practice Group. Mr. Fay has a plethora of experience as both a State Attorney and Private Attorney and he is available to put this experience to work for you and your family. If you have been subject to an illegal seizure and forfeiture of your personal property, please contact our office immediately at 732-339-3897. Our offices can be reached day and night for your convenience and we will gladly consult with you at a moments notice. If you would like to speak with Mr. Fay about any criminal charges or forfeiture notices you received, please do not hesitate to call our office today.
Derivative contraband is not an easily defined term. Essentially, derivative contraband is that property which, in and of itself, is legal in its nature but becomes “contraband” based on its use. Pursuant to State. v. One 1994 Ford Thunderbird, property can become derivative contraband only if:
(1) the property has been or is intended to be utilized in furtherance of an unlawful activity;
(2) the property has been or is intended to become an integral part of an illegal activity; or
(3) the property constitutes the proceeds of illegal activity.
It is important to note that N.J.S.A. 2C:64-4 does not require that anyone even be charged criminally for a forfeiture proceeding to take place. Proof of the criminal activity can be done in the civil hearing.
The State bears the burden of proving both that an illegal activity existed or was planned and that the property which is the subject of the forfeiture action is connected to that activity. The standard of proof for a forfeiture hearing is “proof by a preponderance of the evidence.” This is important because it is a lower standard of proof than criminal charges, which require proof beyond a reasonable doubt. Therefore, you may be able to avoid a criminal conviction but could still lose in a forfeiture proceeding based on the lower level of proof required.
Pursuant to State v. One 1988 Honda Prelude, the connection between the property and the activity must be a “direct causal relationship.” Direct causal relationship has been defined as “a sense of dependency, a merely casual relationship will not suffice. . the State’s burden requires that it prove that the connection is proximate and substantial.” Whether a causal relationship can be established is a fact-sensitive determination that requires that there be evidence tying the property to a crime that has occurred or has been planned specifically. For example, mere possession of money that will probably be used to in some drug transaction at some time in the future is insufficient.
No. Case law has ruled that a forfeiture proceeding may not begin if the alleged criminal activity (regardless if anyone was ever charged) would not constitute an indictable offense. This means that disorderly persons offenses, petty disorderly persons offenses and local ordinance violation cannot give rise to a forfeiture of private property. Instead, the underlying or planned criminal activity must involve a first degree, second degree, third degree or fourth degree indictable offense, under New Jersey law. In those instances where a person is charged with a disorderly persons offense, the State may still move for forfeiture if they can prove that underlying activity was, in its nature, an indictable offense.
Under New Jersey’s Forfeiture Laws, the State is required to prove the “contraband nature” of the property involved in a forfeiture hearing. This allows the owners or claimants to the property to defend against these allegations and fight for the return of the property. State v. Seven Thousand Dollars, 136 N.J. 223, 233-234 (1994); State v. $2,293 in U.S. Currency, 436 N.J. Super. 497, 508 (App Div. 2014); State v. One House, 346 N.J. Super. 247, 252 (App. Div. 2001). As a result, if the State wants to take the property it must being a forfeiture action. Dragutsky v. Tate, 262 N.J. Super. 257, 261 (App. Div. 1993). Proving the connection between the activity and the property is the most crucial portion of a forfeiture hearing involving derivative contraband. Where the criminal activity involved has resulted in a conviction, it seems clear that the State may establish the nexus between the property and the criminal activity. However, where the State seeks to prove that the property is connected to future criminal activity, then the direct causal connection is more difficult to demonstrate.
Additionally, only the interests of culpable parties are subject to forfeiture. Therefore, a forfeiture will not affect your property interests in a car or home, so long as you can demonstrate that you (the owner) had no knowledge of criminal activity. The rights of innocent parties are protected whether they arise before or after the illegal activity (though this is subject to reasonable inquiry requirements).
Fighting a civil forfeiture is never an easy task. If you are not well-versed in the law and precedent cases, then you may find it difficult to succeed at trial. Whether you have had your motor vehicle, residence, or money seized by law enforcement, the attorneys at Proetta & Oliver can help. Allow our team of attorneys to review the facts and circumstances of your case with you and your family. We handle matters involving criminal charges and civil forfeiture proceedings throughout New Jersey. If you have any questions or concerns about a pending forfeiture of your property, please do not hesitate to call our office at 732-339-3897. We can be reached 24/7 for your convenience and the initial consultation is provided free of charge.