Chief Justice Stuart Rabner, New Jersey Supreme Court. Photo: Carmen Natale/ALM

In State v. Luis Melendez, the state Supreme Court held that statements made by a suspected drug dealer in response to a civil forfeiture complaint in an effort to keep money seized in an apartment raid cannot be used against him in a parallel criminal proceeding.

The court affirmed and modified the Appellate Division's ruling that defendant Luis Melendez's constitutional rights were violated.

"Defendant faced an untenable situation—forced to choose between his Fifth Amendment right against self-incrimination and his right not to be deprived of property in the forfeiture matter without due process," wrote Chief Justice Stuart Rabner in Wednesday's opinion. "Under the reasoning of Garrity v. New Jersey, defendants cannot be compelled to give up their Fifth Amendment protections in that way.

"Like the Appellate Division, we find the error was harmless in light of other strong evidence connecting defendant to the apartment. Accordingly, we affirm and modify the judgment of the Appellate Division," Rabner said.

Justices Jaynee LaVecchia, Barry Albin, Anne Patterson, Faustino Fernandez-Vina, Lee Solomon and Walter Timpone joined in Rabner's opinion.

In its 1967 decision in Garrity v. New Jersey, the U.S. Supreme Court reversed the convictions of officers who were given a choice "either to forfeit their jobs or to incriminate themselves" in the course of an investigation into their alleged misconduct. That decision, according to Rabner, "likened the practice to the interrogations it reviewed in Miranda and found the officers' statements 'were infected by … coercion,' … not voluntary and could not be admitted at a later criminal proceeding."

Rabner said the Melendez case mirrored Garrity in many ways.

"Like the defendants in Garrity, claimants in a civil forfeiture action who are defendants in a parallel criminal case also face an untenable choice: to forfeit their property or incriminate themselves," Rabner said. "In other words, to assert their constitutional right not to be deprived of property without due process, they have to link themselves to alleged contraband and give up their constitutional right against self-incrimination. Or they can refuse to answer and lose their property."

"A criminal defendant's statements in an answer to a civil forfeiture complaint thus cannot be considered voluntary," added Rabner. "As a result, they cannot be introduced in the State's direct case in a later criminal proceeding."

Attorneys for Melendez had a swift reaction to the ruling.

"Prior to this sweeping decision by the Supreme Court, our indigent clients were placed between the proverbial rock and a hard place," said Joseph J. Russo, who manages the statewide Appellate Section of the Office of the Public Defender, in response to the court's ruling.

Russo further stated that "pro se civil forfeiture litigants are helpless against the power of the state. This decision considerably levels the playing field."

Assistant Deputy Public Defender Laura Lasota, who argued the case before the state Supreme Court, stated that "we are pleased that the Court recognized that it's intolerable for one constitutional right to be surrendered in order to assert another constitutional right. While we are happy that the Court recognized this inherent constitutional conflict, we are disappointed that it did not apply its holding to Mr. Melendez."

Valeria Dominguez, deputy attorney general, argued the cause for the state Attorney General's Office, which was an amicus. Office spokesman Peter Aseltine said the office had no comment

Alexander Shalom argued for amicus American Civil Liberties Union of New Jersey, and said in a phone call Wednesday that the court "got it exactly right."

"The practice that existed beforehand allowed the state to take statements without the benefit of counsel from represented defendants," Shalom, senior supervising attorney for the ACLU-NJ, said. "The state could not directly ask a defendant for a statement, but it could take their property and demand a statement in exchange for the return of the property. This was done without properly informing them of their rights, the consequences of answering those questions, and did not direct defendants to lawyers who can properly answer those questions."

"By excluding those statements [from a criminal trial] and allowing better notice, the Supreme Court ensures fairer proceedings going forward," said Shalom, who also serves as the organization's director of Supreme Court advocacy.

The case dates back to Nov. 8, 2010, when after a monthlong investigation into drug sales by Melendez, police executed a search warrant at a sixth-floor apartment in Hoboken and found drugs, weapons and other items bearing his name, along with $2,928 in cash, according to the decision.

Melendez was arrested and charged with various narcotics and weapons offenses, and a public defender represented him at a bail hearing.

A month later, the same office prosecuting the criminal case against Melendez filed a civil forfeiture complaint which sought forfeiture of the $2,928 in cash found during the search, alleging the funds were proceeds of illegal activities to which Melendez was linked. Melendez was served with a copy of the state's civil complaint, but the attorney representing him in the parallel criminal proceeding didn't, the decision said.

Twelve days after Melendez received the civil forfeiture complaint, a grand jury indicted him with 13 drug- and weapons-related offenses.

In April 2011, Melendez represented himself in the civil matter and objected to the forfeiture of the $2,928. He claimed the money was not derived from any criminal activity, but instead was the remaining balance of his inmate account while serving time in prison, and therefore, not subject to forfeiture, and he attached a copy of a U.S. Treasury check, according to the decision.

The civil forfeiture case was dismissed for lack of prosecution, but prosecutors moved to admit Melendez's answer to the forfeiture complaint as evidence in his criminal trial to "show a nexus between" him and the contraband previously seized at the apartment, according to the decision.

Hudson County Superior Court Judge Joseph Isabella in November 2013 granted the motion, writing: "Here the defendant was not facing the dilemma of being compelled to claim ownership of his money or waive his Fifth Amendment rights."

Melendez was convicted of 10 counts of the original 13 charges. Three counts were dismissed.

The Appellate Division in April 2018 affirmed all the convictions but one.

The state Supreme Court last September granted Melendez's petition for certification, limiting its review to the question of whether it was error to admit his answer from the civil forfeiture complaint at his criminal trial.

In Wednesday's 25-page opinion, Rabner echoed the Appellate Division's findings and outlined its steps to better inform defendants of their basic rights. "Defendants should be advised of the following: (1) they may wish to consult with a lawyer about how best to proceed; (2) the State may not use any statements made in an answer to a forfeiture complaint in its case in chief in a related criminal case; and (3) defendants may file a motion to stay the civil forfeiture action under N.J.S.A. 2C:64-3(f). Whenever practicable, the State should also serve a courtesy copy of the forfeiture complaint on defense counsel when a companion criminal case is pending, so that counsel can offer basic legal advice or make a referral."

Rabner referred the matter to the Clerk of the Superior Court to consider any changes to the standard form summons currently used, and to the Civil and Criminal Practice Committees for their consideration.