On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, L-5023-98.
Before Judges Havey, Braithwaite,
The opinion of the court was delivered by: Weissbard, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
In this civil forfeiture action arising out of claimant's arrest and prosecution for possession of a controlled substance, we are called upon to determine the standard which governs warrantless searches of vehicles impounded for possible forfeiture. Although there are decisions, primarily from the federal courts, granting an unfettered right to search under such circumstances, we reject that rule and hold that searches of vehicles impounded in contemplation of forfeiture are to be judged by the rules governing inventory searches. See State v. Mangold, 82 N.J. 575 (1980). In this case, we conclude that a search of the trunk of claimant's vehicle did not meet the inventory search requirements and that, as a result, $3910 found secreted therein must be suppressed.*fn1
Because of our holding, we remand the case for a determination as to whether forfeiture of other currency found within the passenger compartment of the vehicle and the vehicle itself are subject to forfeiture without consideration of the illegally seized currency.
Claimant, Sigilfred Ortiz, appeals from a final judgment ordering forfeiture to the State of a 1994 Ford Thunderbird and two separate bundles of currency found within the automobile. The vehicle and $700 were forfeited as a result of a summary judgment on July 9, 1999 and $3910 was forfeited after a plenary hearing on September 25-26, 2000. As noted, we reverse as to the $3910 and remand for further proceedings as to the $700 and vehicle.
The events leading to the forfeiture began on July 9, 1998 when Ortiz, operating the Thunderbird southbound on the Garden State Parkway, was stopped for speeding by Trooper Dreher of the New Jersey State Police. A passenger, Henry Fallas, was also in the vehicle. As Dreher approached the driver's side of the car and requested credentials, he "immediately detected the faint odor of raw marijuana emanating from the interior of the vehicle."
Ortiz produced his license and told Dreher that he and Fallas were returning from work; however, Ortiz was unable to specify the location. Fallas also said that they were coming back from work. Dreher asked Ortiz if he had ever been arrested and Ortiz stated that he was previously "arrested for drug charges."*fn2 Dreher then told Ortiz that he smelled an odor of marijuana, but Ortiz stated that he didn't "have anything in the vehicle." Dreher presented a consent to search form to Ortiz, explained the form, and informed Ortiz of his right to refuse the consent. Ortiz read and voluntarily signed the consent form. Dreher ordered both Ortiz and Fallas to exit the car.
Ortiz and Fallas sat on the hood of the car while Dreher searched the interior. Dreher found "greenish brown vegetation" in the right door pocket compartment that he suspected to be marijuana, a white paper fold containing four white tablets containing the marks of swans, and a clear plastic baggie containing seventeen white tablets with the marks of swans. The tablets were found in the center console, underneath the ashtray, next to the gear shift. Dreher suspected the tablets to be Ecstasy.*fn3 Dreher also found $700 in U.S. currency in a day planner on the floor of the vehicle. The $700 was "stacked in multiple twenty dollar folds in groups of fifty dollar stacks."
Ortiz admitted the drugs were his. Dreher arrested Ortiz for possession of Ecstasy and marijuana, read him his Miranda *fn4 rights, handcuffed Fallas, and brought them to the Holmdel Police Station for processing. Ortiz was charged with possession of a controlled dangerous substance (CDS), Ecstasy, possession of CDS, marijuana less than 50 grams, and was advised that the vehicle and the $700 were being held pending forfeiture proceedings. After Ortiz repeated that the drugs were his and that Fallas had no knowledge of the drugs, Fallas was released. Ortiz was then released into his mother's custody.
On July 10, 1998, Detective Scott Cholewa of the Monmouth County Prosecutor's Office reported to the Holmdel station and took possession of the $700 and the Ford Thunderbird. The vehicle was taken to the County Prosecutor's impound yard where, on July 13, 1998, Cholewa conducted a "seized vehicle inventory." Cholewa searched the vehicle's trunk, where he found some articles of clothing and sneakers; Cholewa tossed one of the sneakers to the side of the trunk causing a large bundle of cash that had been secreted in the toe area of the sneaker to become visible. Cholewa testified that the money in the trunk was bundled and fastened by a rubber band. The cash totaled $3910.
Ortiz subsequently pled guilty to possession of Ecstasy and was sentenced to probation.
On September 24, 1998, the State filed a verified petition for forfeiture of the automobile, the $700, and the $3910. Ortiz filed an answer asserting that the car and the money were possessed lawfully and further alleging that the several searches of the car were unconstitutional. Thereafter Ortiz sought summary judgment and suppression of the money seized in the search of the vehicle's trunk. The State cross-moved for summary judgment in its favor. On July 12, 1999, the motion judge granted the State's application for forfeiture as to the automobile and the $700. A trial was ordered with respect to the $3910 found in the trunk.
After a trial on September 25-26, 2000, the judge issued a written decision dated December 21, 2000 granting forfeiture of the $3910.*fn5
On appeal, Ortiz raises separate challenges to the forfeiture of: (1) the $700 found inside the car; (2) the vehicle itself; and (3) the $3910 found in the trunk. With respect to the third contention, he also contests the legality of the search of the trunk which led to the seizure of the $3910. Because it affects our resolution of the remaining issues, we deal first with the validity of the search.
The permitted scope of a search of a vehicle seized in contemplation of forfeiture has never been decided by our courts. In a thoughtful opinion, the trial judge held that the warrantless search of the Thunderbird's trunk, which resulted in seizure of the currency found in a sneaker, was permissible under an exception to the general rule that all searches conducted without a warrant are prima facie invalid. State v. Hill, 115 N.J. 169, 173 (1989) (listing eleven exceptions recognized by the United States Supreme Court). On appeal, the State argues for the same rule. Ortiz contends that the search should be judged by rules governing "inventory" searches. See Mangold, supra. The trial judge found Mangold "not controlling" because the vehicle in this case was not simply impounded but, rather, seized for forfeiture.
As the trial judge noted, analysis of the issue begins with the Supreme Court's decision in Cooper v. California, 386 U.S. 58, 87 S. Ct. 788, 17 L. Ed. 2d 730 (1967) (4-3 decision). In that case, state officers impounded an automobile based on evidence that it had been used in narcotics possession and transportation. The officers were required to keep the car "as evidence" until forfeiture proceedings were concluded. Id. at 60, 87 S. Ct. at 790, 17 L. Ed. 2d at 730. The officers searched the car a week after the defendant's arrest, finding evidence which formed the basis for a conviction. The Supreme Court stated:
Here the officers seized petitioner's car because they were required to do so by state law. They seized it because of the crime for which they arrested petitioner. They seized it to impound it and they had to keep it until forfeiture proceedings were concluded. Their subsequent search of the car - whether the State had "legal title" to it or not - was closely related to the reason petitioner was arrested, the reason his car had been impounded, and the reason it was being retained. The forfeiture of petitioner's car did not take place until over four months after it was lawfully seized. It would be unreasonable to hold that the police, having to retain the car in their custody for such a length of time, had no right, even for their own protection, to search it. It is no answer to say that the police could ...