On certification to the Superior Court, Appellate Division.
Clifford, Pollock, Garibaldi, Stein, O'Hern, Wilentz, Handler
The opinion of the Court was delivered by
In this forfeiture case we focus on the connection that the State must establish between seized property and suspected future criminal activity to permit forfeiture of the property under N.J.S.A. 2C:64-1 to -9. The facts require us to determine if that connection is sufficient when the only evidence linking the seized money to illegal activity consists of drug paraphernalia and the money itself.
On May 25, 1988, at about 1:33 p.m., Police Officer Matthew Biebel stopped Ronald Durden for a motor-vehicle violation. As Officer Biebel approached the car, he noticed the passenger, Eric Williams, lean forward in his seat. Officer Biebel went directly to the passenger side and instructed Williams to get out of the vehicle. He then searched Williams and the passenger side of the car for weapons and found $7,000 in cash under the front seat. Four thousand dollars of the money was wrapped in bank bands in two bands containing $1,000 each and one band of $2,000; the remainder of the money was in folded $100 packets wrapped with
rubber bands. The denominations were nineteen $100 bills, sixty-six $50 bills, seventy-eight $20 bills, twenty-three $10 bills, and two $5 bills.
After Durden signed a Consent to Search form, the officer made a further search of the vehicle. In the glove compartment he found an eyeglass holder containing six small glassine bags, commonly used for packaging narcotics, and two beepers. In the trunk the officer found a cellular telephone and an Ohaus triple-beam scale with some white residue on it. The amount of the white residue was so small as to preclude testing. The glassine bags were clean.
Officer Biebel questioned Durden and Williams about the items found in the car. Durden told the officer that he had withdrawn the money from the bank and was on his way to buy a car. Williams said that both the beepers and the cellular phone belonged to him. Both men denied ownership of the plastic bags and the scale. The officer took both men to the police station, where a certified drug dog reacted to the money and the scale. The State seized all items uncovered in the search of the car. Durden was charged with possession of drug paraphernalia under N.J.S.A. 2C:36-2, a disorderly persons offense, for which the court later entered a conditional discharge.
The State brought this civil forfeiture proceeding against the $7,000 seized from Durden's car, claiming that the money had been used or was intended to be used to facilitate the commission of a crime. Durden denied any connection between the money and any illegal act, and he demanded its return.
At the forfeiture hearing, Officer Biebel testified that in his opinion the money found was associated with drug activity. On cross-examination, however, he could not recall the denominations of the bills that were in the bank wrappers at the time of the stop. The State also called Investigator Brian Rubino, a street supervisor in the Narcotics Strike Force, to testify as an expert in narcotics investigations. Rubino stated that the items found -- the triple-beam scale, the plastic bags, the beepers, and the cellular
phone -- were consistent with activity involving trafficking in illegal drugs. Furthermore, Rubino testified that a person involved in trafficking in or selling of narcotics at the street level commonly folds money into $100 packets, sometimes securing the packets with rubber bands to facilitate the counting of the money in his or her pocket. In Rubino's opinion, the $7,000 found in Durden's car was for use in a narcotics operation. On cross-examination Rubino stated that the use of bank wrappers was not consistent with a street-level operation. He also admitted that in his experience with drug investigations, he had never seen such a large amount of money in bank wrappers or rubber bands without drugs also being present.
Durden first sought to prove a legitimate source for the money. Paul Benyola, a real-estate broker, testified that he had given Durden a check for $6,000 on May 23, 1988, two days before Durden was stopped. That check represented the deposit on the sale of a house that Durden had owned. The court also accepted an affidavit from Durden's attorney, explaining that he had represented Durden in the sale of that house and that he had held in his trust account $20,636.58 in proceeds, which he had disbursed to Durden on April 20, May 7, and May 9, 1988.
Durden testified that the $7,000 in the car did not come from and was never intended to be used in connection with narcotics. He explained that on May 25, 1988, he had a large amount of money with him because he was going to buy a car on Route 88 in Lakewood, where a number of automobile dealerships are located. He had looked at a Lincoln at one of those dealerships about two days earlier, but the dealer had refused to accept the realtor's check, preferring cash instead. At the hearing, Durden could not remember the name of the dealership. Between the date he looked at the car and the date of the stop, Durden cashed the realtor's check. He recalled that the bank had given him money in bank wrappers, but he did not remember how much was in wrappers or the denominations of the bills. His passenger, Williams, was with him to drive the "old" car after Durden
purchased a new one. Durden testified that Williams had had the money and the beepers on his lap, and that Williams had put the beepers, which belonged to Williams, in the glove compartment and had put the money under the passenger seat as the officer approached the car.
Approximately a month and a half prior to the stop, Durden had cleared out his house so the real-estate agent could show it to prospective buyers. He and some friends had thrown a number of items, including blankets and clothing, into the trunk of Durden's car, and those items remained there until the day of the stop. Durden did not know that the scale, which was in a case, was in the trunk. He explained that his cousin had been living in the house when he had spruced it up. He also denied seeing any white powder on the scale.
Neither Durden nor Williams was employed at the time of the stop, although Durden was to have started a job the next week and was buying the car for transportation to that job. Prior to the stop, Durden had worked at K-Mart for about a year, and at the time of the forfeiture hearing he had been working as a mechanic at Pep Boys for about two years.
Subsequent to the seizure of his money and prior to the forfeiture hearing, Durden was convicted of possession of cocaine in an unrelated incident. He was sentenced to probation, which required him to submit to drug testing and treatment. That judgment of conviction was admitted into evidence, limited to the issue of Durden's credibility.
The court found that the State had proved by a preponderance of the evidence that the $7,000 seized had been connected with an illegal narcotics operation. Explaining the factors that influenced its decision, the court emphasized the location of the money at the stop and the evidence that the passenger had attempted to hide the money as the officer approached. Although the court did find that the money had probably come legitimately from the house sale, it noted that those proceeds could have been used in future illegal activity. Second, the court did not believe that Durden had
planned to use the $7,000 to buy a car. Although it acknowledged that car dealers may not accept realtors' checks, the court believed that the dealers usually ask for a certified or cashier's check rather than cash. Likewise, it believed that Durden could have avoided carrying such a large amount of money if he had had the check certified. The court also found it "strange" that Durden had failed to carry the money in "an attache case or a bag or a suitcase." Lastly, the court found damaging Durden's inability to recall the name of the dealership from which he had planned to buy the car.
Another factor influencing the court was the presence of drug paraphernalia, as well as the beepers and cellular phone, because Durden could not suggest any legitimate purpose for them. Moreover, the court did not believe that Durden had no knowledge of the glassine bags in the eyeglass case and the triple-beam scale in the trunk. Finally, the court found that Durden's unrelated drug-possession conviction diminished his credibility. Because the court concluded that the money more likely than not was being used illegally ...