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Matter of Two Seized Firearms

Decided: March 4, 1992.

IN THE MATTER OF TWO SEIZED FIREARMS


On certification to the Superior Court, Appellate Division.

For reversal and remandment -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. Opposed -- None. The opinion of the Court was delivered by O'Hern, J.

O'hern

The question in this appeal is whether a non-resident gun owner may avoid the sanctions of New Jersey's gun-control laws on the basis that possession of the weapon was legal in the owner's state of residence and that the owner was merely transporting weapons through New Jersey without criminal intent and knowledge that New Jersey would regard the possession

as illegal. In that context, we must inquire whether New Jersey must permit a motorist from Florida to carry, on the New Jersey Turnpike, a loaded handgun in a glove compartment because Florida would permit such possession on its highways. We find that no principle of constitutional doctrine or of federal supremacy over the interstate transportation of weapons compels that result. New Jersey need not observe the lowest common denominator of gun control among the various states. It is illegal in New Jersey to transport a loaded handgun in this way without a license to carry. Firearms that are unlawfully possessed or carried in New Jersey are prima facie contraband under N.J.S.A. 2C:64-1 and are subject to forfeiture.

The parties have agreed on the facts. On August 9, 1988, State Police officers making a routine speeding stop of a Florida van on the New Jersey Turnpike spotted an eighteen-inch machete lying in open view between the driver and passenger seats. The troopers arrested the driver, Mark Sholtis (hereinafter referred to as defendant), and his passenger for possession of that dangerous weapon. Incident to the arrest, one of the troopers searched the interior of the stopped van. Inside the glove compartment he found a loaded .38 caliber Smith & Wesson handgun. Underneath and behind the driver's seat he discovered a loaded .357 magnum Smith & Wesson revolver, a speed loader containing five .38 caliber hollowpoint cartridges, five .38 caliber blue-tipped cartridges, and a container of marijuana. The State Police subsequently charged defendant with illegal possession of the handguns, contrary to N.J.S.A. 2C:39-5b; of the hollow-point bullets, contrary to N.J.S.A. 2C:39-3f; and of the machete, contrary to N.J.S.A. 2C:39-3e. The passenger in defendant's van gave a written statement acknowledging ownership of the marijuana.

The Bergen County Prosecutor consented to defendant's admission into the Pre-Trial Intervention Program (PTI), see Rule 3:28, conditioned on his signing a weapons-release form. At the PTI hearing, defendant argued that that condition was unfair

because his home state of Florida would allow him to carry loaded guns in his car. (The Bergen County Prosecutor's Office questioned whether, even under Florida law, defendant had legally transported the loaded handguns, citing the requirements of Fla.Stat. 790.25(3)(1) and (5) that the firearm be "securely encased" or not otherwise "readily accessible for immediate use.") The Law Division admitted defendant into PTI but reserved decision on return of the two firearms. On defendant's successful completion of the PTI program, the Law Division dismissed all charges against him.

Thereafter, the Law Division ordered the State to return the two guns to Sholtis. The Law Division recognized that unlawfully possessed firearms are considered prima facie contraband under New Jersey's forfeiture statute, N.J.S.A. 2C:64-1 to -9. It concluded, however, that the statute does not apply in this case because of the property rights implicated and because principles of comity compelled deference to Florida law. The court thus ordered the return of the weapons to Sholtis under the auspices of Florida law-enforcement authorities to prevent illegal possession by Sholtis in New Jersey. The State appealed, and the Appellate Division affirmed per curiam. We granted the State's petition for certification, 126 N.J. 329, 598 A.2d 888 (1991), and now reverse.

But for consideration of whether New Jersey's gun control laws and forfeiture provisions are preempted by federal statute providing for the interstate transportation of firearms, 18 U.S.C.A. § 926A, all the issues presented in this case have been foreclosed by earlier decisions of this Court and the United States Supreme Court. In State v. Hatch, 64 N.J. 179, 313 A.2d 797 (1973), this Court disapproved of a trial court ruling that in the absence of notice or knowledge of further requirements by New Jersey, a nonresident passing through New Jersey may possess a handgun or other firearm so long as that possession is not violative of the law of his or her own state. Id. at 188-89, 313 A.2d 797. The Hatch Court concluded that to carry handguns in one's car or on one's person along the highways is,

apart from certain exemptions, "clearly forbidden unless the person carrying the handgun has a permit issued in accordance with N.J.S.A. 2A:151-41, -44 (predecessor to N.J.S.A. 2C:58-4)." Id. at 186, 313 A.2d 797. The Court noted that "[w]hen dealing with the carrying of handguns we find nothing in the statute which suggests any flexibility or any intent to exclude nonresidents within or passing through New Jersey from the strict permit requirement." Ibid. Like Hatch, "when [Sholtis] came into New Jersey * * * he subjected himself to New Jersey's gun control regulations." Id. at 188, 313 A.2d 797.

New Jersey has carefully constructed a "grid" of regulations for handguns that differentiates between permission to possess a handgun and permission to carry a handgun. State v. Ingram, 98 N.J. 489, 495 n. 1, 488 A.2d 545 (1985). Few persons in this state are exempt from the criminal provisions for carrying a gun without a permit. See N.J.S.A. 2C:39-6. That the non-resident gun owner had no knowledge of the specifics of New Jersey's gun-control laws is of no moment. Gun-control laws are preeminently regulatory. United States v. Freed, 401 U.S. 601, 91 S. Ct. 1112, 28 L. Ed. 2d 356 (1971). "[W]here dangerous or deleterious devices or products are involved, the probability of regulation is so great that anyone who is aware that he is either in possession of or dealing with them must be presumed to be aware of the regulation." McIntosh v. Washington, 395 A.2d 744, 756 (D.C.1978) (citing United States v. International Minerals & Chem. Corp., 402 U.S. 558, 564, 91 S. Ct. 1697, 1701-02, 29 L. Ed. 2d ...


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