The opinion of the court was delivered by: Locascio
On June 9, 1994, the Asbury Park Police Department, during the execution of a search warrant at defendant's residence, seized 33 small plastic zip-lock bags containing cocaine found on the couch, $166 found in a pair of co-defendant Hill's pants lying on the couch, and $748 found in the left pocket of the pants defendant was wearing at the time. Defendant contends that a few days before the search his girlfriend had lent him the $748 which he intended to use to rent an apartment. The State contends the $748 constitutes proceeds from defendant's illegal drug activities and therefore should be forfeited to help defray $1,754 in costs for the investigation of defendant's activities.
On August 5, 1994, the Monmouth County Prosecutor's Office filed a verified complaint against defendant for forfeiture of the money found during the search. On September 30, 1994, defendant failed to appear for a show cause hearing, and on October 4, 1994, a default judgment of forfeiture of the $748 was entered against him.
On September 15, 1994, a Monmouth County Grand Jury handed up Indictment No. 94-11-1849, charging defendant with possession of a controlled dangerous substance, contrary to N.J.S.A. 2C:35-10a(1) and possession of a controlled dangerous substance with intent to distribute, contrary to N.J.S.A. 2C:35-5b(3). Defendant, in this motion to dismiss the indictment, contends that this criminal action, in addition to the civil forfeiture, violates the Double Jeopardy Clause of the Fifth Amendment and the Excessive Fines Clause of the Eighth Amendment.
Both the United States and New Jersey constitutions provide that "No person shall . . . be subject for the same offense to be twice put in jeopardy of life or limb . . ." U.S. Const., amend. V; N.J. Const., art. I, P 11; See Benton v. Maryland, 395 U.S. 784, 794, 89 S. Ct. 2056, 2062, 23 L. Ed. 2d 707, 716 (1969) (holding the Double Jeopardy Clause applicable to the states through the Fourteenth Amendment); State v. Farmer, 48 N.J. 145, 168, 224 A.2d 481, cert. denied 386 U.S. 991, 87 S. Ct. 1305, 18 L. Ed. 2d 335 (1967). The Double Jeopardy Clause protects against a second prosecution for the same offense, after a conviction or an acquittal, and prohibits multiple punishments for the same offense. See North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072, 2076, 23 L. Ed. 2d 656 (1969); State v. Darby, 246 N.J. Super. 432, 438, 587 A.2d 1309 (App. Div. 1991). Although its text refers only to "life or limb", it is well settled that the Amendment covers imprisonment and monetary penalties. United State v. Halper, 490 U.S. 435, 109 S. Ct. 1892, 104 L. Ed. 2d 487 (1989). However, the Amendment's protection operates only against a proceeding that is criminal; it does not prohibit civil sanctions and criminal penalties for the same act or course of conduct. State v. Darby, supra, 246 N.J. Super. at 438.
The question presented by the within motion is whether the forfeiture of the $748 found on defendant, during the search of his apartment, constitutes a second punishment in violation of the Double Jeopardy Clause.
The New Jersey Code of Criminal Justice authorizes forfeiture to the State of two types of contraband: (1) prima facie contraband, which includes controlled dangerous substances, firearms, illegally possessed gambling devises, untaxed cigarettes, and untaxed special fuel, N.J.S.A. 2C:64-1.a.(1); and (2) derivative or non-prima facie contraband, which is "innocent" in nature, but has been used or intended to be used in furtherance of an unlawful activity, or constitutes proceeds of Illegal activities. N.J.S.A. 2C:64-1.a.(2)-(4). The State, contends that the $748 seized from defendant is derivative contraband.
Although prima facie contraband is automatically forfeited upon seizure, where derivative contraband is sought, the State must initiate a civil action within ninety days of the seizure. N.J.S.A. 2C:64-3a. In that action, the State must prove, by a preponderance of the evidence, that the seized property was connected to an indictable offense. The fact that a prosecution terminates without conviction does not preclude forfeiture proceedings against the property. State v. Seven Thousand Dollars, 136 N.J. 223, 233, 642 A.2d 967 (1994); State v. One 1988 Honda Prelude, 252 N.J. Super. 312, 315 (App. Div. 1991) (noting that forfeiture is permitted even when the State dismisses all criminal charges).
Congress may, consistent with the Double Jeopardy Clause of the Fifth Amendment, impose both a criminal and a civil sanction with respect to the same act or omission, since double jeopardy prohibits "merely punishing twice, or attempting a second time to punish criminally, for the same offense." Helvering v. Mitchell, 303 U.S. 391, 398-99, 58 S. Ct. 630, 633, 82 L. Ed. 917 (1937) (emphasis added); State v. Labato, 7 N.J. 137, 146-47, 80 A.2d 617 (1951). Forfeiture is not barred by the Double Jeopardy Clause if it involves neither two criminal trials nor two criminal punishments. One Lot Emerald Cut Stones and One Ring v. United States, 409 U.S. 232, 234, 93 S. Ct. 489, 492, 34 L. Ed. 2d 438 (1972) (One Lot); State v. Rodriquez, 130 N.J. Super. 57, 60, 324 A.2d 911 (App. Div.), certif. denied 66 N.J. 325 (1974). However, where a civil sanction is intended as "punishment," it may constitute a second criminal proceeding which bars a subsequent prosecution. Helvering v. Mitchell, supra, 303 U.S. at 399, 58 S. Ct. at 633; State v. Labato, supra, 7 N.J. at 147.
In United States v. Halper, supra, 490 U.S. at 436, 109 S. Ct. at 1895, 104 L. Ed. 2d 487, the Court considered whether and under what circumstances a civil penalty may constitute "punishment" for purposes of double jeopardy. Halper was convicted of sixty-five separate violations of the criminal false claims statute (18 U.S.C.A. § 287), each involving a demand for $12 reimbursement for medical services worth only $3. After Halper was sentenced to two years in prison and fined $5,000, the Government filed a separate action to recover a $2,000 civil penalty for each of the 65 violations. The Court, finding that the civil penalties constituted "punishment," held that a "defendant who already has been punished in a criminal prosecution may not be subjected to an additional civil sanction to the extent that the second action may not fairly be characterized as remedial, but only as a deterrent or retribution." United States v. Halper, supra, 490 U.S. at 448-49, 109 S. Ct. at 1901-02, 104 L. Ed. 2d 487. The Court stated, however, that a civil sanction constitutes criminal punishment only in the rare case in which the amount of the sanction is "overwhelmingly disproportionate" to the damages caused by the wrongful conduct and thus "bears no rational relation to the goal of compensating the Government for its loss, but rather appears to qualify as 'punishment' within the plain meaning of the word. United States v. Halper, supra, 490 U.S. at 449, 109 S. Ct. at 1902.
Similarly, in State v. Darby, supra, 246 N.J. Super. at 435, defendants were indicted for conspiracy to commit theft and theft of over three million dollars by failing to make required Dispositions. Because the Chancery Division, for the same conduct alleged in the indictment, had permanently enjoined defendants from any securities-related activities in New Jersey and assessed $163,400 in civil penalties, through the Uniform Securities Law, defendants moved to dismiss the indictment on double jeopardy grounds. The court, in denying the motion, adopted the Halper analysis and held that the Chancery Division's penalties did not amount to "punishment." State v. Darby, supra, 246 N.J. Super. at 444.
Thus, under Halper and Darby, pursuant to N.J.S.A. 2C:64-1, civil forfeiture of proceeds of illegal drug sales constitutes "punishment" if the amount of the proceeds forfeited is so great that it bears no rational relationship to the costs incurred by the government and society resulting from defendant's criminal conduct. In determining whether a particular civil sanction constitutes criminal punishment, it is the purposes actually served by the sanction in question, not the underlying nature of the proceeding giving rise to the sanction, that must be evaluated. ...