On appeal from Superior Court of New Jersey, Law Division, Mercer County.
Dreier and Stern. The opinion of the court was delivered by Dreier, J.A.D.
Defendant, Loreain Tolle, the ostensible owner of $14,987 declared forfeited to the State, has appealed from the forfeiture order. He has not appealed from that portion of the order also declaring forfeit a 1978 Ford Van in which the police found both illegal drugs and the disputed money.
The State's witnesses testified to the discovery in the rear of the van of more than five pounds of marijuana packaged in a triple-wrapped garbage bag placed in a box which also contained a small paper bag holding a smaller bag of marijuana. Nearby was a brown leather gym bag in which there was $14,000 in United States currency together with a loaded .38 caliber revolver and a small Ziploc bag containing seven pills, three methaqualone and four Valium. The police also discovered a suitcase with additional plastic Baggies, green garbage bags, metal tape, a bench beam scale and a small quantity of additional marijuana. In a separate leather bag was another triple beam scale, assorted plastic Baggies, scissors, and a disinfectant/deodorant spray. In the front of the van the police found $980 in United States currency, defendant's passport, checkbook and various other personal papers in an envelope as well as $7 in assorted coins in a small pouch.
A State expert testified that, considering the quality of the marijuana, it was worth between $2,500 and $3,000. Although the expert further testified that in his opinion the money
"would be proceeds from the sale of marijuana," the trial judge rejected the testimony as a net opinion.
Defendant Tolle testified that he had purchased the marijuana soon before his arrest for approximately $2,000 and expected to sell it quickly in bulk for approximately $3,000. He explained his possession of the $14,000 as being the proceeds of the sale of a Mercedes automobile and produced some documentation indicating that he had recently transferred the title to the car. He further claimed that he kept the money with him because he was a fugitive from Arizona and, although he had some business interests which he operated through a bank account and a Merrill Lynch cash management account, he paid his day-to-day living expenses from this cash.
The trial judge did not dispute defendant's allegation that the source of the cash was two $7,000 cashier checks representing the sales price of the Mercedes. The judge found it irrelevant whether the money in the van was from the sale of the Mercedes or that the sales proceeds had been deposited in the bank and the money found was from another source. Further, the court found that there had been no proof that the money in the van was the proceeds of drug sales. The trial judge determined, however, that the money "was used to purchase marijuana, among other things. Therefore, it is subject to forfeiture. . . . If he wasn't arrested, he probably would have gone the next day and bought more." The judge made no specific finding as to what portion of the money might have been used for marijuana or other illicit drug purchases for resale and which portion for defendant's legitimate living expenses. He merely concluded "that the money that he carried with him was used not only for his ordinary living expenses, but to purchase this marijuana which he admitted he was going to sell for profit. . . ." He, therefore, determined:
I conclude from the defendant's testimony on cross-examination that he intended to use this money to buy, among other things, marijuana for resale. Whether he was going to use the entire sum which the State found consisting of $14,987 or not, I don't know and I don't think I have to conclude that he was
going to use all of the money for that purpose. He used some of the money that he had in his possession and I think it is reasonable to conclude that the money that was found was part of a larger sum which was used or intended to be used in the ...