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FORFEITUREFORFEITUREFORFEITURE FORFEITUREFORFEITURE(See also, REMOVAL, this

Digest)

I. IN GENERAL

N.J.S.A. 2C:64-1 et seq. recodified statutory
provisions on civil forfeiture ancillary to a criminal
prosecution, although certain existing forfeiture statutes
were retained, including some dealing with adulterated
food and fish and games matters. When the statute was
enacted, New Jersey’s principal offense-specific forfeiture
statutes were repealed. See, e.g., former N.J.S.A. 2A:151-
16 (pertaining to firearms); and former N.J.S.A. 24:18-
38.1 et seq. (pertaining to drugs). Property that was the
subject of these offense-specific statutes became prima
facie contraband under the new forfeiture statute. The
Code provision establishes two categories of contraband,
prima facie contraband and derivative contraband, and
separate forfeiture procedures for each. See N.J.S.A.
2C:64-2; N.J.S.A. 2C:64-3; see also State v. Seven
Thousand Dollars, 136 N.J. 223, 233 (1994); In Re Two
Seized Firearms, 127 N.J. 84, 89-90 (1992).

By definition, it is not possible to acquire property or
possessory rights in prima facie contraband. N.J.S.A.
2C:64-1a. The category of prima facie contraband has
been expanded since enactment of the statute and now
includes: “controlled dangerous substances, firearms
which are unlawfully possessed, carried acquired or used,
illegally possessed gambling devices, untaxed cigarettes
and untaxed special fuel.” N.J.S.A. 2C:64-1a(1).

In contrast to prima facie contraband, derivative
contraband includes items in which property or
possessory rights can be acquired. It is property whose
contraband quality inheres not in its “nature” but derives
from the manner in which the property was used,
intended to be used, or generated. Thus, the forfeiture
statute defines as contraband any property which is the
proceeds of illegal activity; any property which “has been
or is intended to be utilized in furtherance of illegal
activity;” and any property which became or was
intended to become an integral part of illegal activity.
N.J.S.A. 2C:64-1a(2) to -1a(4). Since the forfeiture
statute does not limit the illegal activity from which
contraband can derive, for example, to illegal narcotics
activity, the statute is said to be non-offense-specific.

Forfeiture procedures for prima facie contraband do
not require institution of a legal action by the State.
Prima facie contraband is merely held, pending
determination of criminal proceedings, if any, and then

forfeited to the entity funding the prosecuting agency.

N.J.S.A. 2C:64-2. Forfeiture procedures for derivative

contraband, however, require the institution of a civil in

rem forfeiture action, in which the property sought to be

forfeited, not its owner or possessor, is the defendant.

N.J.S.A. 2C:64-3a. Prosecution of the action must meet

ordinary notice requirements for in rem actions, along

with particulars of procedure established for forfeiture

actions. See N.J.S.A. 2C:64-3c. That the prescribed

action is a civil in rem forfeiture action (as opposed to an

in personam penalty proceeding, for example) has

significant implications in the analysis of constitutional

rights attending the action, as noted infra.

In addition to in rem forfeiture authorized by the

general civil forfeiture statute, the Legislature has

provided for criminal, in personam forfeiture as well as

civil forfeiture of property that was used in or acquired as

a result of racketeering activity, N.J.S.A. 2C:41-3;

N.J.S.A. 2C:41-4, see State v. Sparano, 249 N.J. Super.

411 (App. Div. 1991); e.g., civil forfeiture of conveyances

used in the illegal discharge of harmful substances,

N.J.S.A. 13:1K-1 et seq.; and forfeiture of weapons

pursuant to the Prevention of Domestic Violence Act,

N.J.S.A. 2C:25-1 et seq., see In Re Seized Firearms

Identification Card of Peter Hand, 304 N.J. Super. 360

(Ch. Div. 1997).

Other statutes may or may not refer to Chapter 64 of

the Penal Code and incorporate its definitions and

procedure. Racketeering forfeiture provisions, for

example, incorporate Chapter 64 procedure and

definitions. N.J.S.A. 2C:41-4a(9). Harmful-substances

forfeiture provisions make no reference at all to Chapter

64 forfeiture. These statutes should be consulted when

appropriate.

II. FORFEITURE PROCEDURE FOR PRIMA

FACIE CONTRABAND

A. Seizure

Prima facie contraband may be seized as evidence

pending a criminal proceeding. N.J.S.A. 2C:64-1b;

N.J.S.A. 2C:64-4. Even if no criminal proceeding is

instituted, prima facie contraband may be seized without

process so long as the seizure comports with the Fourth

Amendment and other applicable constitutional

provisions. N.J.S.A. 2C:64-1b. Pre-seizure notice and

hearing are not required. See Calero-Toledo v. Pearson