Yacht Leasing Co., 416 U.S. 663, 94 S.Ct. 2080, 40
L.Ed.2d 452 (1974).
B. Forfeiture Procedure
“With prima facie contraband, the State may retain
the property until the conclusion of the criminal
proceeding [if any], after which the property shall be
forfeited, ‘subject to the rights of owners and others
holding interests pursuant to Section 2C:64-5.’” State v.
One 1990 Honda Accord, 154 N.J. 373, 377 (1998). The
qualification regarding N.J.S.A. 2C:64-5 “innocent
owner” rights, however, “does not apply to the illegal
possession of weapons.” In Re Two Seized Firearms, 127
N.J. 84, 90 (1992).
The forfeiture statute does not establish an express
procedure to test the State’s position that seized property
is prima facie contraband. If the State has instituted a
criminal proceeding, the defendant may move under R.
3:5-7 for suppression of evidence and return of seized
property. But the determination of a R. 3:5-7 motion to
suppress is not tantamount to a determination of the
motion for return. “If a motion made pursuant to [R. 3:5-
7] is granted, the property shall be delivered to the person
entitled thereto unless otherwise subject to lawful
detention and shall not be admissible in any court.” R.
3:5-7e. Prima facie contraband should not be returned,
and property that is the subject of an existing forfeiture
action should be detained pending conclusion of the
forfeiture action. State v. Rose, 173 N.J. Super. 478 (App.
Div. 1980).
R. 3:5-7 does not authorize an independent motion
for return of property. “A motion for the return of
property seized can only be made under that rule if in
conjunction with a motion to suppress.” State v. Howery,
171 N.J. Super. 182, 183 (App. Div. 1979). Therefore,
if the State has instituted no criminal proceeding, a
claimant seeking the return of property that the State
maintains is prima facie contraband should appropriately
bring a replevin action. See State v. One 1986 Subaru, 120
N.J. 310, 318 (1990); State v. Cavassa, 228 N.J. Super.
204 (App. Div. 1988). The courts, nevertheless, have
entertained motions for return of property, see State v.
Sherry, 46 N.J. 172 (1965); State v. One Wrist Slingshot,
230 N.J. Super. 498 (App. Div. 1989), and even a letter
request. See State v. Cavassa, 228 N.J. Super. at 205-206.
In One Wrist Slingshot, the State had seized nearly
200 items including assault firearms, handguns, long
guns, and a cannon. A jury acquitted the defendant of all
criminal charges. After the defendant requested return of
seized property, the trial court, with no opposition by the
State, ordered its return. Only then did the State
contend that some items were prima facie contraband,
and decline to return them. The trial court threatened
sanctions against the State and dismissed a forfeiture
action that the State belatedly had commenced against
the alleged prima facie contraband. The Appellate
Division reversed the trial court, concluding: “To permit
the return of weapons that may constitute prima facie
contraband, solely by reason of the State’s failure to
contest the ... order, is contrary to the interests of justice
and may adversely affect the public safety. The State,
therefore, should have an opportunity to present
evidence to establish that the property seized constitutes
prima facie contraband within the provisions of the
Code.” State v. One Wrist Slingshot, 230 N.J. Super. at
504.New Jersey’s firearms laws also came into play in In
Re Two Seized Firearms, 127 N.J. at 84. The defendant,
a Florida motorist, who under Florida law legally
possessed two loaded handguns in the glove
compartment of his car, was stopped on the New Jersey
Turnpike. Ultimately, criminal charges against the
defendant were resolved through successful completion
of the pre-trial intervention program. The Law Division
ordered return of defendant’s guns, despite finding that
they were prima facie contraband under New Jersey law.
The State appealed; the Appellate Division affirmed; and
the Supreme Court reversed, concluding that the State
was required neither to defer to Florida law under comity
principles nor to forgo enforcement of New Jersey law
under the federal pre-emption doctrine. The Supreme
Court held that “the proceedings ... furnished sufficient
procedural due process to the property owner to assert
any claim that possession of the weapons was not illegal
in New Jersey or any other cognizable claim to the
property.” Id. at 90.III. FORFEITURE PROCEDURE FOR DE-
RIVATIVE CONTRABAND
A. SeizureLike prima facie contraband, derivative contraband
may be seized as evidence pending a criminal
prosecution. N.J.S.A. 2C:64-1b; N.J.S.A. 2C:64-4.
When no criminal proceeding is instituted, property may
be seized under court order, or if the property subject to
seizure poses an immediate threat to public health, safety
or welfare, the property may be seized without a court
order. N.J.S.A. 2C:64-1b.