Generally, pre-seizure notice and a hearing are not
required for derivative contraband. Calero-Toledo v.
Pearson Yacht Leasing Co., 416 U.S. 663, 94 S.Ct. 2080,
40 L.Ed.2d 452 (1974). When the derivative
contraband is real property, however, and the
government seeks ouster, federal due process requires
notice and an opportunity to be heard. United States v.
James Daniel Good Real Property, 510 U.S. 43, 114 S.Ct.
492, 126 L.Ed.2d 490 (1993).
More limited means of asserting in rem jurisdiction
over real property would not require pre-seizure notice
and opportunity to be heard. If the State commences a
forfeiture action against real property, New Jersey law
requires that a notice of lis pendens be filed. N.J.S.A.
2A:15-6 et seq. Potential claimants to the property would
then receive copies of both the notice of lis pendens and the
forfeiture complaint. See N.J.S.A. 2A:15-7b; R. 4:4;
Attorney General’s Forfeiture Guidelines, Guideline 1
(calling for use of least intrusive means to preserve State’s
interest in real property pending forfeiture).
There is no right to a post-seizure pre-complaint
probable cause hearing. Due process rights are satisfied
post-seizure by the prompt filing of a forfeiture
complaint. United States v. $8,850, 461 U.S. 555, 103
S.Ct. 2005, 76 L.Ed.2d 143 (1983). In a federal setting,
the time between property seizure and filing the
complaint is measured by the four-factor balancing test
of Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33
L.Ed.2d 101 (1972). United States v. $8,850, supra
(factors include length of delay, reason for delay, demand
for hearing, and prejudice to claimant). In New Jersey,
the forfeiture statute prescribes a bright-line ninety-day
period for filing the complaint. N.J.S.A. 2C:64-3a.
Under a Fourth Amendment analysis, the United
States Supreme Court has held that the exclusionary rule
applies to civil in rem forfeiture proceedings. In One
1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 85
S.Ct. 1246, 14 L.Ed.2d 170 (1965), the Court ruled that
if untaxed liquor were illegally seized, it could not be
introduced in a civil forfeiture action against the car used
to transport it. The ruling, however, leaves the
government free to proceed against the car -- just as it
could proceed in a criminal action -- and to prove
forfeiture with independent evidence untainted by any
illegal seizure. Id. New Jersey courts have articulated
identical principles. See, e.g., State v. $199,167, 227 N.J.
Super. 524 (Law. Div. 1988); State v. Jones, 181 N.J.
Super. 549, 554 (Law. Div. 1981).
B. Forfeiture Procedures- Civil Proceedings
As noted above, a civil forfeiture action must be filed
against derivative contraband within ninety days of
seizure. N.J.S.A. 2C:64-3a. Otherwise, if no seizure has
occurred, the complaint must be filed within five years of
the event subjecting the property to forfeiture. See
N.J.S.A. 2C:1-6. Some cases indicate that the ninety-day
period demands strict adherence. See State v. Jones, 181
N.J. Super. 549 (Law Div. 1981); State v. One Pontiac
Firebird, 168 N.J. Super. 168 (App. Div. 1979). Where
the State failed to file a forfeiture action within ninety
days of seizure, and sought no extension of time, and
where the record presented no extenuating circumstances
that would justify an extension, a defendant’s motion for
return of seized property (not alleged to be prima facie
contraband) was granted. State v. Cavassa, 228 N.J.
Super. at 207 (time requirements are of constitutional
dimension).a. Delay in CommencementHow that dimension should be gauged is partially
answered by State v. One 1986 Subaru, 120 N.J. 310
(1990). In One 1986 Subaru, the State seized the car on
October 1, 1987, and filed a forfeiture complaint on
January 13, 1988, after an earlier complaint with a
mistaken caption had been returned. A notice and
summons, which pursuant to R. 4:4-1 should issue
within ten days of filing the complaint, were issued on
February 23, 1988, that is, forty-one days after filing the
complaint. The complaint, notice, and summons were
served on March 8, 1988. Approving this sequence of
events, the Supreme Court held that for due process
purposes, delay is measured from property seizure to
service of the notice and summons, id. at 316-317, and
must meet the four-factor Barker v. Wingo test
enunciated United States v. $8,850, supra. Additionally,
the Supreme Court noted that “[l]egally seized property
may be retained as long as the retention is reasonably
related to the government’s legitimate need for it,” State
v. One 1986 Subaru, , 120 N.J. at 317, including
retention to obtain evidence for use in a pending criminal
prosecution. Id. at 316.b. VerificationThe complaint must be verified on oath or
affirmation. A “verification” stating merely that the facts
contained therein “are true to the best of my knowledge
and belief” is insufficient. State v. One 1971 Datsun, 189