State v. 1979 Pontiac Trans Am, Color Grey, New Jersey Registration No. 223-PYX, Serial No. 2W87K9N191373

• Decision Date: 21 February 1985
• Citation: 98 N.J. 474,487 A.2d 722
• Parties: The STATE of New Jersey, Plaintiff-Respondent, v. 1979 PONTIAC TRANS AM, COLOR GREY, NEW JERSEY REGISTRATION NO. 223-PYX, SERIAL NO. 2W87K9N191373, Defendant-Appellant.
• Court: New Jersey Supreme Court

Page 474

98 N.J. 474

487 A.2d 722

The STATE of New Jersey, Plaintiff-Respondent, v. 1979 PONTIAC TRANS AM, COLOR GREY, NEW JERSEY REGISTRATION

NO. 223-PYX, SERIAL NO. 2W87K9N191373, Defendant-Appellant.

Supreme Court of New Jersey.

Argued Oct. 23, 1984.

Decided Feb. 21, 1985.

Joseph C. Santoliquido, Elizabeth, for defendant-appellant (Luis R. Sanchez, Elizabeth, attorney).

Robert C. Griffin, Asst. Prosecutor, for plaintiff-respondent (John H. Stamler, Union County Prosecutor, attorney).

Linda L. Yoder, Deputy Atty. Gen., for amicus curiae, Attorney General (Irwin I. Kimmelman, Atty. Gen., attorney).

The opinion of the Court was delivered by

POLLOCK, J.

We granted certification, 96 N.J. 299, 475 A.2d 592 (1984), to determine the constitutionality of enforcing the New Jersey forfeiture statute, N.J.S.A. 2C:64-1 to -9, against a property owner who allegedly was unaware of the illegal use of his property and who did all that could reasonably be expected to prevent that use. Appellant, Orlando T. Figueroa (Mr. Figueroa), is the registered owner of a 1979 Pontiac Trans Am (the Pontiac) forfeited to Union County because his son, Orlando Figueroa (Orlando), used the car to transport stolen property. Mr. Figueroa asserts he was unaware that his son intended to use the property for illegal purposes and that he did all that could reasonably be expected to prevent that use.

In an unreported decision, the Appellate Division affirmed the Law Division's grant of a summary judgment in favor of the County. We reverse and remand the matter to the Law Division for a plenary hearing.

I

On July 25, 1982, Orlando and a companion were driving home from the shore in Mr. Figueroa's Pontiac. Both young men had been drinking alcoholic beverages. At approximately 1:00 a.m., they stopped at a street corner in Elizabeth. They broke the windows of a parked Corvette, removed the car's "T-roof", placed it in the trunk of the Pontiac, and left. According to Orlando, neither he nor his companion planned to steal the T-roof; instead, he attributed the theft to excessive drinking and a spontaneous impulse. A witness observed the theft and reported it to the police. The police verified the registration of the Pontiac, went to the Figueroa residence, and located the stolen T-roof in the trunk of the Pontiac. Orlando was indicted for crimes arising out of the event, but, because it was his first offense, he was accepted into the Pretrial Intervention Program. See R. 3:28.

Pursuant to N.J.S.A. 2C:64-3, the county prosecutor, acting on behalf of the State, instituted a summary action under Rule 4:67 for the forfeiture of the Pontiac. On the return date of the order to show cause, the Law Division, without taking any testimony, entered judgment vesting title to the car in the County. The Appellate Division affirmed without discussing the constitutionality of the statute.

II

As described in this case, forfeiture refers to the divestiture without compensation of title to property used to further criminal activity. Statutes authorizing forfeiture stem from ancient religious beliefs that religious expiation was required of a chattel that caused a person's death. Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 680-81, 94 S.Ct. 2080, 2090, 40 L.Ed.2d 452, 466-67 (1974) (Calero-Toledo ). Forfeiture was transported into English common law, where property causing death could be forfeited to the Crown for pious purposes as a deodand. O.W. Holmes, The Common Law, pp. 23-24 (1881) (Holmes); 2 F. Pollock & F. Maitland, The History of English Law 473-74 (2d ed. 1898). The term "deodand" derives from the latin phrase Deo dandum, meaning "a thing to be given to God," and refers to a chattel that causes death. Black's Law Dictionary 392 (5th ed. 1979); Bouvier's Law Dictionary 844 (8th ed. 1914). Eventually, forfeiture actions lost their religious connotations and became a source of revenue for the Crown, which justified its action as a penalty for the carelessness of the owner. Calero-Toledo, supra, 416 U.S at 680-83, 94 S.Ct. at 2090-91, 40 L.Ed.2d at 466-68; Comment, "Civil Forfeiture and Innocent Third Parties," 3 N.Ill.U.L.Rev. 323, 326-31 (1983); Note, "Forfeiture Seizures and the Warrant Requirement," 48 U.Chi.L.Rev. 960, 961-63 (1981).

Although the law of deodands did not become part of the common-law tradition of the United States, Calero-Toledo, supra, 416 U.S. at 682-83, 94 S.Ct. at 2091-92, 40 L.Ed.2d at 468, modern forfeiture statutes descend from this ancient heritage. U.S. v. U.S. Coin & Currency, 401 U.S. 715, 720, 91 S.Ct. 1041, 1044, 28 L.Ed.2d 434, 438 (1971). Thus, forfeiture actions, such as those authorized by N.J.S.A. 2C:64-3, are conducted as in rem civil proceedings with the property itself as the formal defendant. See, e.g., U.S. v. U.S. Coin & Currency, supra, 401 U.S. at 719-20, 91 S.Ct. at 1044, 28 L.Ed.2d at 438 (forfeiture action instituted as an in rem proceeding against the money itself); U.S. v. One (1) 1976 Lincoln Mark IV, 462 F.Supp. 1383, 1388 (W.D.Pa.1979) (forfeiture proceedings are in rem actions against the vehicle itself); U.S. v. One (1) 1971 Chevrolet Corvette, 393 F.Supp. 344, 347 (E.D.Pa.1975) (forfeiture proceeding is an in rem action against the vehicle); Farley v. $168,400.97, 55 N.J. 31, 37, 259 A.2d 201 (1969) (statutory forfeiture is limited to the offending property itself); Spagnuolo v. Bonnet, 16 N.J. 546, 560, 109 A.2d 623 (1954) (a forfeiture proceeding is directed against the thing itself); Kutner Buick, Inc. v. Strelecki, 111 N.J.Super. 89, 99, 267 A.2d 549 (Ch.Div.1970) (forfeiture proceedings are actions against the offending property itself); State v. Garcia, 114 N.J.Super. 444, 447, 276 A.2d 880 (Law Div.1971) (forfeiture proceedings are actions against the offending property itself); 36 Am.Jur.2d Forfeitures & Penalties § 17 at 623 (1968) (forfeitures may be effected as civil in rem actions against the property itself).

Modern forfeiture statutes are supported by more contemporary considerations than those that originally gave rise to forfeiture. At present, forfeiture proceedings are often viewed as the only adequate means to protect against a particular offense, e.g., the forfeiture of a still may be the only way to prevent the continued illegal distillation of alcohol. Calero-Toledo, 416 U.S. at 684-85, 94 S.Ct. at 2092-93, 40 L.Ed.2d at 469. Consistent with that viewpoint, the New Jersey Organized Crime Task Force proposed the use of forfeiture as a civil remedy to combat organized crime. Report of the Organized Crime Task Force, at 1-31 (1978). In addition, forfeiture is regarded as a means of encouraging owners to be more responsible in lending their personal property. State v. One (1) 1979 Pontiac Sunbird, 191 N.J.Super. 578, 583, 468 A.2d 715 (App.Div.1983). Ultimately, forfeiture statutes are justifiable to the extent that they are a legitimate exercise of the police power. Kutner Buick, Inc. v. Strelecki, supra, 111 N.J.Super. at 99, 267 A.2d 549.

Despite their utility to law enforcement officials, forfeitures remain disfavored in the law. State v. One (1) Pontiac Sunbird, supra, 191 N.J.Super. at 584, 468 A.2d 715; State v. One (1) Ford Van Econoline, 154 N.J.Super. 326, 331-32, 381 A.2d 387 (App.Div.1977), certif. den., 77 N.J. 474, 391 A.2d 489 (1978); Note, supra, "Forfeiture Seizures and The Warrant Requirement," 48 U.Chi.L.Rev. at 961. One problem is that forfeitures result in the taking of private property for public use without compensation to the owner. The United States Supreme Court has recognized this problem under the fifth amendment of the United States Constitution, U.S. v. U.S. Coin & Currency, supra, 401 U.S. at 720-21, 91 S.Ct. at 1044, 28 L.Ed.2d at 439; similar concerns arise under article 1, paragraph 20 of the New Jersey Constitution. Accordingly, New Jersey courts have required that forfeiture statutes be strictly construed "and in a manner as favorable to the person whose property is to be seized as is consistent with the fair principles of interpretation." State v. One (1) Ford Van Econoline, supra, 154 N.J.Super. at 331-32, 381 A.2d 387.

III

In defining property subject to forfeiture, N.J.S.A. 2C:64-1 establishes two broad categories: (1) prima facie contraband, such as unlawfully possessed controlled dangerous substances and firearms, and (2) other kinds of property, such as conveyances "utilized in furtherance of an unlawful activity * * *." As originally enacted, N.J.S.A. 2C:64-1 applied only to "the defendant's interest" in the forfeited property. In 1981, however, the statute was broadened to apply to "any interest" that falls within the statutory definition of property subject to forfeiture.

A related statute, N.J.S.A. 2C:64-5, originally exempted property of an owner from seizure unless the owner "was a consenting party or privy to its unlawful possession, use, or sale." The "right of any person holding an interest in property subject to seizure" could not be forfeited, unless that "person had knowledge of or consented to any act or omission upon which the right of forfeiture is based."

As a result of the 1981 amendment, that statute now provides:

No forfeiture under this chapter shall affect the rights of any lessor or any person holding a perfected security interest in property subject to seizure unless it shall appear that such person had knowledge of or consented to any act or omission upon which the right of forfeiture is based. Such rights are only to the extent of interest in the seized property and at the option of the entity funding the prosecuting agency involved may be extinguished by appropriate payment.

Although the 1981 amendment excised the exemption applicable to owners generally, it provided an express exemption for lessors and lienholders, who did not know of or consent to the unlawful use of the property. Strictly speaking, therefore, the statute provides an exemption for any innocent lessor, including...