On June 6, 2023, the New Jersey Appellate Division issued State v. Johnson, a valuable published opinion that clarifies the procedures that must be followed under the “vehicle registration search” exception to the warrant requirement. The vehicle registration search exception the warrant requirement authorizes police to enter a lawfully stopped vehicle to conduct a pinpointed search for a paper registration certificate if the motorist is unable or unwilling to produce that document after having been provided a meaningful opportunity to comply with the officer’s request. By holding that “a motorist is not ‘unable’ to produce a registration certificate within the meaning of the exception when the sole reason for that inability is a police officer’s discretionary decision to prevent reentry,” the Appellate Division effectively prevents police from forcing a police search of a glove compartment by denying the motorist access for safety reasons.

In Johnson, the defendant parked and exited his vehicle before the police could complete the stop. The question before the court was whether the police could lawfully initiate a vehicle registration search when the detained driver is outside the vehicle at the time the officer requests the registration certificate, but where the officer deems it unsafe for the driver to reenter the vehicle to retrieve it. The court concluded that providing a detained driver with a meaningful opportunity to produce the registration certificate is an essential prerequisite for conducting a registration search, and that the requirement to provide that opportunity can only be waived if the driver is genuinely unable or unwilling to comply with the police request for the vehicle credentials. In the court’s view, any alternative interpretation of the registration search exception would undermine, if not completely negate, the protection of privacy rights guaranteed by the meaningful opportunity element, as it would leave the application of this exception entirely at the discretion of the police without any possibility of review.

Applying the new rule to the facts of the case, the court concluded the police were justified in placing the defendant in their car for safety reasons and preventing him from reentering the detained vehicle during the investigative detention, but that they were not permitted to undertake a warrantless registration search. The court noted that adhering to the meaningful opportunity prerequisite in such circumstances does not hinder the police’s ability to investigate whether a car is stolen, as they can obtain the necessary information contained in the paper registration certificate by conducting a lookup in the Motor Vehicle Commission database.

The court also addressed the impact of a recent revision to N.J.S.A. 39:3-29, the statute that outlines a motorist’s obligation to possess and present a registration certificate to the police during a motor vehicle stop and serves as the foundation for the registration search exception to the warrant requirement. Under the revised statutory framework, motorists are no longer obligated to carry a physical copy of the vehicle registration certificate. Instead, they are now permitted to possess and present the registration certificate in either paper or electronic form. To prevent fruitless searches for a physical document that may not even exist and is not required to be kept in the vehicle, going forward, police officers may not enter a detained vehicle under the authority of the registration search exception to search for a paper document without first inquiring whether the registration is kept in paper or electronic form.

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Protect your rights. If you are the driver of a personal vehicle or the owner, you have what is known as an expectation of privacy and “standing” to suppress searches. For questions regarding criminal defense of traffic and warrantless searches, contact Stahl Gasiorowski Criminal Defense Lawyers. Our offices are located in Mountainside, New Jersey and Manhattan. Contact us online or call us at 908-301-9001.

Last fall Deputy Attorney General Lisa Monaco announced the Department of Justice’s more aggressive approach to corporate compliance. In her policy speech this week, she highlighted a series of new policies and warned cooperating companies not to slow walk their disclosures, told prosecutors to speed up their investigations and expanded self-reporting programs throughout the Department.

Of note, Monaco acknowledged the past year’s decline in corporate prosecutions. In an effort to assist prosecutors’ timely investigations of individuals, Monaco said that any company that delays in turning over key documents and information to the government will risk losing some or all credit for cooperating. While companies are already required to turn over non-privileged information about employee wrongdoing in order to receive cooperation credit, Monaco said that the DOJ would view companies more favorably that claw back compensation from those employees. In her view, such a policy could deter wrongdoing — “compensation systems that clearly and effectively impose financial penalties for misconduct can deter risky behavior and foster a culture of compliance.”

Recidivist corporate offenders, even for unrelated prior misconduct, were warned that any prior violations would factor into DOJ’s treatment of new offenses. But, in an attempt to assuage corporate anxiety about prior misdeeds that resulted in either civil fines or criminal pleas, Monaco said that criminal resolutions more than 10 years old, and civil or regulatory settlements more than 5 years old, would be given less weight.

Lastly, Monaco said that every section of DOJ that prosecutes corporate crime will develop an individualized program to incentivize corporate self-disclosure. The common principles for these programs will include foregoing guilty pleas when the company self-reports, cooperates and remediates the misconduct. Further, monitorships, while back in favor and to be freely implemented when appropriate, will be circumscribed when the above requirements have been met. Prosecutors will be tasked, however, with making sure that the monitors are performing properly and stay on budget.

Federal investigations and prosecutions of corporations and individual employees and officers are complex and time consuming. There are a variety of factors that must be considered to properly defend the company and its employees while conducting an independent investigation of the alleged wrongdoing. Stahl Gasiorowski Criminal Defense Lawyers have extensive experience representing individuals and corporations accused of fraud. To contact the firm’s NJ office, call 908.301.9001 and to contact the firm’s NYC office, call 212.755.3300, or email Mr. Stahl at rstahl@stahlesq.com.

A recent high profile case highlights the federal government’s ability to seize a convicted defendant’s accounts to satisfy an Order of Restitution after a conviction at trial or a guilty plea. The Second Circuit recently held that the retirement funds of Evan Greebel, the former convicted attorney and Martin Shkreli’s codefendant, could be seized in partial satisfaction of the restitution amount owed. Greebel was convicted in a separate 2017 trial for assisting his client Shkreli’s fraudulent taking of funds from Retrophin to pay Shkreli’s hedge fund debts, and for manipulating the stock price of Shkreli’s drug company. After conviction, Greebel was sentenced to 18 months in prison and ordered to pay $10.4 million in restitution.

In its opinion, the Second Circuit upheld the trial court’s decision that Greebel’s 401(k) accounts at his former law firm were subject to garnishment in an effort to collect the restitution amount. The Second Circuit held that the Mandatory Victims Restitution Act (MVRA) gives the government full access to retirement funds, and that ERISA’s prohibition on disbursing retirement funds to third parties is trumped by the MVRA.

It is well-established that under 18 U.S.C. § 3664(m)(1)(A), the Government may enforce a restitution order in the manner provided by subchapter B of Chapter 229, or 18 U.S.C. § 3613. An order of restitution may be executed in accordance with the practices and procedures for the enforcement of a civil judgment under federal law or state law or by all other available and reasonable means. 18 U.S.C. § 3613 (a) and (f).

The MVRA broadly permits the United States to enforce a restitution order “against all property or rights to property of the person fined.” Pursuant to §3613(c), once restitution is ordered, all the defendant’s property becomes subject to a lien in favor of the United States, and for purposes of debt collection, such lien is treated like a tax lien. §3613(c). Thus, any property the IRS can reach to satisfy a tax lien, a sentencing court can also reach in a restitution order – bank accounts, retirement funds, stock accounts and even Social Security benefits. Additionally, while periodic payments (usually monthly payments through the Probation Department) in satisfaction of a restitution order are limited to 25% of the defendant’s disposable income, one time lump sums payments, such as the garnishment of a retirement or bank account, are not limited.

The only issue left unanswered by the Second Circuit in Greebel was whether the government could seize all the funds, or whether it had to leave the defendant sufficient funds to pay the 10% tax penalty for early withdrawal of retirement funds. In many instances, the amount left to a defendant to pay tax penalties and taxes on garnishment of retirement accounts can be negotiated with the government.

Stahl Gasiorowski Criminal Defense Attorneys have represented scores of clients facing restitution and forfeiture orders and garnishments. We actively and aggressively protect clients’ rights. To contact Mr. Stahl, call 908.301.9001 for the NJ office and 212.755.3300 for the NYC office, or email Mr. Stahl at rstahl@stahlesq.com.

In the past, federal agents and prosecutors have sought subpoenas and search warrants that authorize the seizure of every electronic device at the location to be searched – computers, servers, external hard drives and cell phones. This policy has resulted in an exponential growth in seized data to be reviewed and turned over in discovery. After several high profile cases exposed the Department of Justice’s failures in processing and timely disclosing seized data to the defense, the DOJ has told U.S. Attorney’s Offices around the country to collect less evidence.

DOJ officials disclosed this new emphasis in an interview with Bloomberg Law. In a program set to launch later this year in mandatory training for more than 6,000 federal prosecutors, DOJ will instruct them to be more selective in the evidence sought and seized. This controversial policy shift will emphasize a “smart collection” approach in DOJ’s annual discovery training.

As with most new policies, some veteran prosecutors are pushing back claiming that the new policy could result in missing valuable evidence, result in less than thorough investigations, miss exculpatory information and is generally not in the government’s best interests.

For its part, DOJ readily acknowledges that it is a constant struggle to fund and find the software and personnel needed to store and analyze the volume of electronic evidence seized. DOJ requested $27 million for U.S. Attorneys offices for the next fiscal year for “e-Litigation modernization”, including 52 new positions and technology upgrades. DOJ already has a $1.5 billion e-discovery vendor services contract awarded in 2020 that is set to expire in 2027.

Despite the massive amount of money, search platforms and personnel devoted to electronic discovery, there have been a plethora of cases that have revealed DOJ’s failure to timely analyze and turn over discovery to the defense. And when discovery is turned over, often times it is in a massive dump in an unusable format that the defense must then retain its own experts to load onto costly search platforms. By tailoring government searches of electronic devices, the government acknowledges that its past practice of grabbing every bit of data is impractical and unworkable. While the government claims that it is at a disadvantage to well-funded big law and corporations in reviewing large amounts of electronic data, the reality is that most individuals charged in federal fraud cases are the ones at a disadvantage. The vast majority of defendants cannot afford the costs of web-based search platforms and 100s or 1000s of hours it takes to search and review potentially the electronic data. Data that may be critical defense evidence that may go undiscovered.

Stahl Gasiorowski Criminal Defense Lawyers have successfully represented hundreds of individuals under complex federal and state investigations with terabytes of discovery. To contact the firm’s NJ office, call 908.301.9001 and to contact the firm’s NYC office, call 212.755.3300, or email Mr. Stahl at rstahl@stahlesq.com.

It’s 6 a.m. or 8 p.m., your doorbell rings and two people are standing outside holding up their badges and credentials. They say they are Special Agents with the FBI or IRS and would like to talk with you for just a few minutes about something important. They ask if they could come in to speak with you privately. Caught off-guard, and not wanting them to think that you have anything to hide, you invite them in (and, of course, you don’t want your neighbors to see them talking to you on your front steps). The agents are “friendly” and just have a few questions to get your input, your side of things, or to serve you with a grand jury subpoena. You decide to talk to them, only for a few minutes, in the comfort of your own home or office. At the end, they thank you for your time and hand you either a grand jury subpoena or a “target letter.”

After they leave, you start to wonder – what did I say? How much did I tell them? Am I in trouble, did I implicate myself or others? You start to look for an attorney. You can’t ask your family or friends who they hired last time the FBI or IRS visited them because you don’t know anyone who ever faced such a situation. So, you scour the internet to find an experienced criminal defense attorney, one with a lot of federal experience because it’s a federal investigation.

The next day you’re in the attorney’s office. After talking to the attorney you realize that what you thought was an innocuous 15 -30 minute chat with the FBI was actually an hour and a half where you told them some things, but not others. You discover that it is a federal crime to lie to the agents. You learn that it doesn’t matter that they didn’t read you your rights, like in the movies, because you weren’t “in custody.” When you tell the lawyer that you only spoke to them because you didn’t want the agents to think you were involved or guilty, the lawyer tells you that the agents already think that you’re involved, that’s why they were at your house to interview you in the first place. You then learn that there were two agents so that the interview was witnessed by two of them for credibility later on if you dispute what you said. You learn that a “target letter” is issued by an Assistant U.S. Attorney because she believes that you are involved in criminal activity and wants you to come in with your attorney to negotiate a plea of guilty. You realize that it was a mistake to say anything to the agents without first talking with an experienced white-collar criminal defense attorney.

So, what should you do in such a situation? The safest course would be to politely tell the agents that while you would like to talk with them, you need to contact your attorney and that he will get back to them. Ask them for their business cards so that you can give the information to your attorney. If they don’t have cards, write down their names, agency and contact information. Do not under any circumstances talk with them about the subject matter of their investigation. After they leave, contact an experienced criminal defense attorney to discuss your rights, potential exposure and your options.

If you did talk with the agents, experienced criminal defense counsel can help you get through the situation and protect your rights going forward. The task will be to mitigate any statements made and develop an overall strategy to succeed.

Stahl Gasiorowski Criminal Defense Lawyers have successfully represented hundreds of individuals under federal and state investigations. To contact the firm’s NJ office, call 908.301.9001 and to contact the firm’s NYC office, call 212.755.3300, or email Mr. Stahl at rstahl@stahlesq.com.

I have written a number of times about modern technology being used in criminal investigations, from cellphone towers tracking our phones, to Alexa and other smart home devices used to record internet searches and conversations, to security cameras used to spy on their homeowners. Recently, the New York Times and other media outlets reported that Google has the ability to track which cellphones are in the area of a crime scene at a particular time. Once law enforcement narrows down which phones they are interested in, they obtain a warrant for the particular cellphone owner’s information.

Google refers to the program as “Sensorvault.” Unlike law enforcement tracking a particular suspect’s phone through “traditional” means – such as cell tower location, Wi-Fi, or GPS – this program allows law enforcement to uncover who was in the area of the crime without having any particular suspect’s information at all.

In response to a search request, Google provides anonymous identification numbers to law enforcement to review. The search results may reveal hundreds of devices in the area at a particular time, which then must be narrowed down to a few based upon additional information. Once law enforcement narrows those devices down to ones they believe fit other information or patterns, Google reveals the users’ names and other information. One should not be lulled into a false sense of security by believing only Google phones, such as the Pixel, are accessible. Android phones and some iPhones are also vulnerable, giving available data to Google.

As reported, this technology was first used by federal agents in 2016 and has been increasingly used since by federal, state, and local law enforcement. Google employees report that the Sensorvault program includes information on hundreds of millions of devices worldwide, dating back at least ten years. Concerning, it has been reported that law enforcement submits hundreds of requests per week to Google for such information.

The use of geolocation technology allows law enforcement to locate suspects and potential witnesses to active, as well as past, crimes. This raises several privacy concerns, as well as serious legal issues. Warrants issued for this type of information can span a particular building, or block of buildings, over several hours at a time. Countless people using their devices may be revealed to law enforcement, with no regard for whether they are involved in the crime being investigated.

Courts have not yet addressed these concerns. As technology advances, our legal system undoubtedly struggles to keep up. Determinations of probable cause, reliability, reasonableness, and privacy are lagging in a world of ever-expansive surveillance: be it our movements or the innocuous use of our devices and accounts.

Stahl Gasiorowski Criminal Defense Lawyers aggressively defend organizations and individuals charged with complex federal and state crimes. Founder Robert G. Stahl is recognized as one of the top criminal defense attorneys in the NY/NJ area for his skills, knowledge and success.

Our offices are located in Mountainside, New Jersey and Manhattan. To contact us to discuss your case, call 908.301.9001 for our NJ office and 212.755.3300 for our NYC office, or email us at rgs@sgdefenselaw.com. Or Contact us online.

Police and prosecutors around the country routinely seize and forfeit cars, boats, money, computers, guns and homes that were “used in, or facilitated, the criminal activity charged.” While many cases involve significant crimes and the forfeitures are justified, too often the person is charged with fairly low-level drug sales and their car is seized if it was used to transport the drugs during the sales. The federal and state governments argue that forfeitures are simply part of the cost of the criminal’s conduct and work as a separate fine on the illegal activity. These fines and forfeitures are often used to supplement local and state budgets, including those of the very agencies that seized and forfeited the property.

The problem is that these forfeitures may be grossly excessive to the criminal activity charged. A case now before the U.S. Supreme Court involves low-level drug sales to support the person’s own drug habit and the seizure of his $42,000 Land Rover Discovery. In Timbs v. Indiana, the defendant pled to one count of dealing and one other count. He was sentenced to a year of home detention, five years of probation, and $1,200 in fines and court costs. In a separate civil forfeiture proceeding, the State sought to forfeit his expensive Land Rover as it was used in the commission of the crime. The trial and appellate courts held that the forfeiture was excessive, disproportionate to even the maximum fine of $10,000 under the drug statute. The Indiana Supreme Court, however, reversed and permitted the forfeiture. The U.S. Supreme Court will now decide whether the excessive fines clause in the Bill of Rights applies to the states.

While this decision will ultimately come down to constitutional interpretation, the everyday implications are far reaching. Cars are a huge expense and something that many people work long and hard to purchase, both as necessary transportation and the pleasure of owning a nice, reliable car. Every day throughout New Jersey and elsewhere, local and state law enforcement seize cars they allege were used in or facilitated the criminal activity – whether that consists of relatively minor drug sales, transportation of stolen property or other crimes involving the “use” of the car. The person charged may be admitted into a pretrial diversion program or receive probation and a minor fine, and yet, the government may still proceed to forfeit their car civilly in rem, or as part of the criminal sentence. That forfeiture may be grossly disproportionate to the underlying criminal charges and used as leverage to get the better plea deal in the criminal case.

After battling with county prosecutors’ offices for the information, the ACLU in New Jersey compiled five months of data, from January through May 2016, and found that police departments in New Jersey seized $5.5 million in cash in 1,860 cases over that time period, roughly $368,000 per day, along with 234 cars and, in one case, a house. Once police officers seized the suspects’ money, it was rare for them to see it again. Only 50 cases in the data were even contested by the suspects.

In a number of cases, the government may negotiate an amount of money to be paid for the return of the car. They may negotiate an amount of money for the return of the vehicle, or items seized, allegedly to cover the costs of the forfeiture, or as some additional penalty. When the person is faced with additional legal costs to defend against the forfeiture, often in a civil proceeding where the state’s burden of proof is less than in a criminal case, they often decide to “cut their losses” and settle for a lesser dollar amount. As one can easily surmise, these types of actions can and do lead to abuse and misuse of forfeiture to fund the seizing agency and the local and county budgets.

Experienced criminal defense counsel is an absolute must for these types of seizures and forfeitures. Forfeitures can be justified under the law, or they can be grossly disproportionate to the crimes charged and misused by the prosecution.

Robert Stahl, and his firm, Stahl Gasiorowski Criminal Defense Lawyers aggressively defend individuals charged with complex federal and state crimes. Founder Robert G. Stahl is recognized as one of the top criminal defense attorneys in the NY/NJ area for his skills, knowledge and success. To contact the firm, call 908.301.9001 for the NJ office and 212.755.3300 for the NYC office, or email Mr. Stahl at rgs@sgdefenselaw.com.

Much has been written and tweeted about this past week concerning this topic. Politics aside for the moment, what does the government need to demonstrate to a court that a place should be searched, or a person’s phone calls should be intercepted?

To search someone’s home or office, the government must show that there is probable cause to believe that evidence of a crime is presently at the location to be searched. Probable cause exists “where the facts and circumstances within the agents’ knowledge, and of which they had reasonably trustworthy information . . . are sufficient in themselves to warrant a man of reasonable caution in the belief that . . .” a crime has been or is being committed, and that seizable property can be found at the place or on the person to be searched. The probable cause must be timely and the place to be searched must be described with particularity. If information comes from an informant, his or her credibility must be established, either by reciting prior information that has proven to be reliable, or by independent verification of a number of the details provided by the informant.

In the case of a Title III intercept, commonly referred to as a wiretap, there are extra statutory factors that must be met before electronic surveillance will be authorized. Only certain enumerated crimes are subject to a wiretap as an investigatory tool. Most importantly, the affidavit must establish investigative need and that traditional methods of investigation have either failed, are likely not to succeed, or are too dangerous.

What if the affidavit provided to the court for the warrant contains false information? Does that mean the warrant should never have been issued, or that the evidence gathered should be suppressed? Generally, a warrant issued by a judge is presumed valid. In challenging a warrant, the person must demonstrate that (1) the affidavit contained a materially false statement; (2) the false statement was made knowingly and intentionally, or with reckless disregard for the truth; and (3) the allegedly false statement is necessary to the finding of probable cause. If these three points are demonstrated, then a Franks hearing must be held.

The key point is that the warrant will survive, and the evidence gathered admitted in court, if there is sufficient probable cause remaining once the alleged false statement(s) are removed from the affidavit. Generally, even if a warrant was issued with a materially false statement, that was known to be false when made, the evidence will not be suppressed unless the judge would not have issued the warrant if those statements were not included in the application.

Pertinent to recent press reports and the 24-hour cable news cycle, when a Title III warrant has been issued, it is only valid for a specified period of time. After which, the agent must apply for an extension(s). In that application, the agent must demonstrate to the court that material evidence of the crimes being investigated have been intercepted and that the continued authorized interception will likely yield additional evidence. Thus, any renewals will necessarily mean that evidence of the specified crimes have been electronically gathered and that continued electronic interceptions will likely yield additional material intercepts.

Stahl Gasiorowski Criminal Defense Lawyers aggressively defend individuals charged with complex federal and state crimes.Founder Robert G. Stahlis recognized as one of the top criminal defense attorneys in the NY/NJ area for his skills, knowledge and success. To contact us to discuss your case, call 908.301.9001for our NJ office and 212.755.3300for our NYC office, or email us at rgs@sgdefenselaw.com.

The police stop you for an alleged driving infraction – speeding, failure to stay in lane, tinted windows – and while talking with you the officer smells the odor of marijuana. The officer asks you to step out of the car, searches the car and finds drugs. You contact a criminal defense attorney to defend you and explore the possibility of a motion to suppress the search. If you are the driver of a personal vehicle or the owner, you have what is known as an expectation of privacy and “standing” to suppress the search. However, if you are a passenger of the vehicle, or the driver of a rental car that was rented by a friend or family member and you are not listed on the rental agreement, you may lack standing to challenge the search of the vehicle.

How can this be? How can someone driving a car who is subject to a search by law enforcement not have the legal authority to challenge the search? Well, this precise issue has just been heard by the United States Supreme Court in the Byrd case. The case began in 2014 when Terrence Byrd was stopped by a Pennsylvania State Trooper. When the Trooper learned that Byrd’s fiancée rented the car and that Byrd was not listed on the rental agreement, the Trooper searched the car and found heroin. The Trooper had no probable cause to search the car. Rather, he asserted that he did not need Byrd’s consent for the search because he was an unauthorized driver. Typical rental agreements only authorize the renter’s spouse, or someone who appeared at the time of the rental and signed as an additional driver, to operate the vehicle. Mr. Byrd and his fiancée had been together for 17 years and had 5 children together, but were not married. The trial court refused to suppress the search and Byrd was sentenced to 10 years in prison.

Hearing oral argument the other week, the Supreme Court seemed inclined to hold that people not listed as authorized drivers on rental agreements still have privacy rights when stopped by police. Justice Sonia Sotomayor said it would give the police too much power, specifically stating “If we rule that someone without permission has no expectation of privacy even when the renter has given it to them . . . then what we’re authorizing is the police to stop every rental car and search every rental car, without probable cause, that might be on the road.” Several other justices suggested that failing to list an additional driver was a mere breach of contract that does not overcome the protections of the Fourth Amendment, which bars unreasonable searches.

This is a complicated and unsettled area of the law until the Supreme Court decides the issue. While it may make no sense to the average layperson, the law requires a person to have a reasonable expectation of privacy in order to be afforded Fourth Amendment protection from unreasonable search and seizure. An unauthorized driver of a rental car, a passenger in a friend’s car or a guest at a friend’s house may not be able to challenge the validity of a search even when that person is charged with a crime related to the items discovered in that search.

Stahl Gasiorowski Criminal Defense Lawyers aggressively defend individuals charged with complex federal and state crimes. Founder Robert G. Stahl is recognized as one of the top criminal defense attorneys in the NY/NJ area for his skills, knowledge and success. To contact us to discuss your case, call 908.301.9001 for our NJ office and 212.755.3300 for our NYC office, or email us at rgs@sgdefenselaw.com

On December 19, 2016, the New Jersey Assembly and Senate unanimously passed a much-needed civil forfeiture reporting bill that, if signed into law by Governor Christie, would shed light on a much-criticized practice in which law enforcement agencies reap huge profits by seizing property “connected” to criminal activity, even in cases where no one has been charged with or found guilty of a crime.

The new bill, S-2267, would require every New Jersey county prosecutor to compile and submit an annual report to the Attorney General detailing how much money or property was seized, how it was connected to an alleged crime, whether the person from whom the property was seized was represented by a lawyer in the forfeiture proceeding, and how the forfeited profits were ultimately utilized by law enforcement. Though the bill does not call for any substantive reforms to New Jersey’s forfeiture laws, it will gather valuable data about an opaque process in dire need of reform, so that legislators will be armed with the facts necessary to push through meaningful legislation that is bound to be opposed by law enforcement and prosecutorial agencies.

The use of civil forfeiture has exploded in recent years across the United States. The Institute of Justice reported that since 2001 to 2014, annual federal forfeiture revenue increased from less than $500 million to more than $5 billion. And that is just federal forfeiture revenue. New Jersey law enforcement authorities routinely request forfeiture of all the cash carried by a person upon arrest, and any items suspected of having been used in a crime or purchased with the proceeds of crime, but due to the absence of reporting laws, the precise scope of New Jersey’s civil forfeiture industry is unclear.

Civil forfeiture is based upon the premise that criminals should not profit from unlawful activity. While this may be a laudable goal, the laws governing civil forfeiture have been drafted in a way that gives law enforcement huge legal and monetary advantages over the persons whose property is seized, making it difficult and prohibitively expensive for innocent owners to defend civil forfeiture cases. At the same time, civil forfeiture laws allow the agency that conducts the seizure to reap the profits from the seizure, creating a perverse incentive to seize first, and ask questions later.

Under New Jersey civil forfeiture laws, one need not be suspected of having committed a crime to have one’s property seized. If, for example, an innocent party lends a car to a person who is arrested purchasing narcotics in that car, police can seize the car and require the owner to prove, in court, that she did not have a reason to believe the car would be used in a drug deal. Unfortunately for the innocent owner, the cost of defending the civil forfeiture suit may exceed the value of the car, and it is the owner, not the State, who bears the burden of proving her own innocence. And because civil forfeiture is civil in nature, the owner does not have a constitutionally-protected right to an attorney. In many cases, the owner will simply pay a “settlement” to get her own property back, because the cost of proving her innocence exceeds the cost of the property. In one widely-publicized case, Jersey City resident Jermaine Mitchell was allegedly charged $175 in court fees to get back $171 seized during an April arrest.

Stahl Gasiorowski Criminal Defense Lawyers aggressively defend individuals whose property has been seized under New Jersey and federal forfeiture laws. To contact us to discuss your case, call 908.301.9001 for our NJ office and 212.755.3300 for our NYC office, or email us at rstahl@stahlesq.com.

At the federal level, the government can seize property using a variety of means. It can do so administratively; it can do so through the criminal justice system; and it can do so in civil court actions. Civil asset forfeitures can be particularly pernicious, with more than $4 billion of property assets seized nationally in one year alone, and more than $2 billion in cash being seized from individuals who were never charged with a crime.

At the state level, although the New Jersey asset forfeiture law has been challenged on constitutional grounds, it remains on the books. The invasive nature of this law can be illustrated by considering its relevant jury instructions, which include passages like the following:

“…The basis of the forfeiture is the misuse of the property rather than the crime that may have been committed by the owner or user… The fact that a claimant was not charged in a criminal complaint with a crime or was acquitted of a crime is irrelevant to your determination of whether forfeiture is appropriate in this case. It is also irrelevant that the claimant did not take part in the criminal activity.” [emphasis added]

The bottom line is, if you have had your property seized by either the federal government or that of New Jersey, even if you have not engaged in any criminal conduct, you may face a fight to get your property back. Regardless of whether you are facing criminal charges, in such an event you should retain legal counsel experienced with both federal and state-level criminal defense to ensure that your legal rights are protected as thoroughly as possible.

Source: FOX Business, “When Can the U.S. Take Your Cash or Property?”, Sept. 14, 2015