                                         SYLLABUS

This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the
Clerk for the convenience of the reader. It has been neither reviewed nor approved by the
Court. In the interest of brevity, portions of an opinion may not have been summarized.

                       State v. Luis Melendez (A-22/23-18) (081246)

Argued September 9, 2019 -- Decided January 8, 2020

RABNER, C.J., writing for the Court.

      In this appeal, the Court considers whether a defendant’s answer to a civil forfeiture
complaint can be introduced against him in a related criminal trial.

       In the course of an investigation into drug sales by defendant Luis Melendez, police
executed a search warrant in November 2010 at an apartment where an informant had
purchased drugs from defendant. The search focused on a bedroom where drugs, weapons,
and items bearing defendant’s name were found, along with $2900 in cash. An officer
arrested defendant and seized $28 in his possession. Defendant was 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 defendant filed a
civil forfeiture complaint. The complaint named defendant and sought to forfeit the $2928 in
cash; it alleged the funds were proceeds of illegal activities for which defendant had been
charged criminally. Defendant was served with a copy of the complaint; the State did not
serve a copy on the attorney who represented defendant in the parallel criminal proceeding.
A summons attached to the complaint notified defendant that the State “has filed a lawsuit
against you,” and that “[i]f you dispute this complaint, you or your attorney must file a
written answer or motion and proof of service . . . in the county listed above within thirty-
five (35) days from the date you received this summons.”

       Twelve days after defendant received the civil forfeiture complaint, a grand jury
returned an indictment that charged him with thirteen drug and weapons offenses.

       In April 2011, defendant represented himself and filed an answer to the forfeiture
complaint. He objected to the forfeiture of the $2928 and asserted that he had proof that the
“funds were not part of or derived from any criminal activity,” but rather “were the balance
of [defendant’s] inmate account while serving federal incarceration time. Therefore, they are
not subject to forfeiture.” Defendant attached a copy of a U.S. Treasury check to the answer.
Ultimately, the court dismissed the civil forfeiture case for lack of prosecution.

       The State moved to admit defendant’s answer to the forfeiture complaint at his
criminal trial to “show a nexus between” defendant and the contraband found in the
apartment. Over defendant’s objection, the trial court granted the motion.
                                               1
       At trial, the court took judicial notice of the civil forfeiture action against defendant
and the $2928 seized, and of defendant’s answer. The prosecutor read aloud to the jury
defendant’s answer to the civil forfeiture complaint. Defendant was convicted of the ten
counts submitted to the jury; three counts had been dismissed.

       The Appellate Division affirmed defendant’s convictions on all counts except one
charge that has since been dismissed. 454 N.J. Super. 445, 454, 459 (App. Div. 2018). The
court found no Fifth or Sixth Amendment violation but “conclude[d] that the entire chain of
events in connection with the forfeiture case violated principles of fundamental fairness.” Id.
at 471. As a result, the court found that defendant’s answer in the forfeiture case should not
have been introduced in his criminal trial. Ibid. Because of other evidence, the court
nevertheless concluded the error was harmless. Id. at 475.

       The Court granted defendant’s petition for certification limited to whether it was error
to admit defendant’s answer from the civil forfeiture action. ___ N.J. ___ (2018). The Court
also granted the State’s cross-petition, which raised related questions. 236 N.J. 48 (2018).

HELD: Under the reasoning of Garrity v. New Jersey, 385 U.S. 493 (1967), a defendant’s
statements in an answer to a civil forfeiture action cannot be introduced in a parallel criminal
proceeding in the State’s case in chief. Like the Appellate Division, the Court finds the error
was harmless in light of other strong evidence connecting defendant to the apartment. The
Court also agrees that criminal defendants who have been served with civil forfeiture
complaints are entitled to enhanced notice of certain issues. The Court outlines several
points about notice and refers the matter to the Civil and Criminal Practice Committees for
further review.

1. Civil forfeiture proceedings implicate a person’s due process rights and invoke certain
protections that apply to criminal matters. The Court reviews the language and structure of
the civil forfeiture statute and finds that they convey a straightforward meaning: anyone who
seeks to claim property that is subject to forfeiture must file and serve a claim to the property
“in the form of an answer,” and the answer must state the claimant’s “interest in the
property.” N.J.S.A. 2C:64-3(d). If an answer is not timely filed, the property is forfeited.
Id. at -3(e). If an answer is filed, the case proceeds in court. Id. at -3(f). In short, the statute
requires a claimant to file an answer to defend against a forfeiture action. The last sentence
in subsection (f) allows claimants to apply for a stay but does not provide for the filing of a
stay motion alone; an answer must be filed first to assert a claim. (pp. 12-15)

2. The framework of the civil forfeiture statute raises concerns under the United States
Supreme Court’s ruling in Garrity, which 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. 385 U.S. at 497. The Court likened the practice
to the interrogations it reviewed in Miranda and found the officers’ statements “were infected
by . . . coercion.” Ibid. As a result, the Court held the statements were not voluntary and
could not be admitted at a later criminal proceeding. Id. at 498, 500. (pp. 15-16)

                                                 2
3. 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. To defend against a forfeiture complaint, claimants who are also criminal
defendants must file an answer that states their interest in the property. 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. Under the reasoning in
Garrity, a defendant’s choice to file an answer under those circumstances is not freely made.
It is fraught with coercion. A criminal defendant’s statements in an answer to a civil
forfeiture complaint thus cannot be considered voluntary. As a result, they cannot be
introduced in the State’s direct case in a later criminal proceeding. (pp. 17-18)

4. The Court does not decide in this appeal whether a defendant can be impeached if he
testifies at a later criminal trial and contradicts statements he made in a forfeiture action, and
it does not consider whether Simmons v. United States, 390 U.S. 377 (1968), would apply to
the circumstances presented here. Nor does the Court reach defendant’s other arguments
under the Fifth or Sixth Amendments or the doctrine of fundamental fairness. Defendant’s
civil forfeiture answer was obtained in violation of a constitutional right and could therefore
not be admitted under N.J.R.E. 803(b)(1) as a statement by a party-opponent. (pp. 18-20)

5. The Court agrees with the Appellate Division that criminal defendants served with a civil
forfeiture complaint should receive enhanced notice about certain issues. 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. To comply with the Appellate Division’s ruling, the State began providing other
defendants in civil forfeiture actions with enhanced written notice. The notice tracks the
Appellate Division’s guidance and reasoning, but the Court has now modified that reasoning
and reaches its conclusion based on Garrity rather than fundamental fairness. The Court
refers the matter to the Clerk of the Superior Court to consider any changes to the standard
form summons now in use. The Court also refers these issues to the Civil and Criminal
Practice Committees for their consideration. (pp. 20-21)

6. For the reasons stated above, it was error for the State to introduce defendant’s answer to
the forfeiture complaint at his criminal trial. In light of other evidence that connected
defendant to the back bedroom of the apartment, where the evidence was seized, that error
was harmless. (pp. 21-22)

       The judgment of the Appellate Division is AFFIRMED and MODIFIED.

JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-VINA, SOLOMON
and TIMPONE join in CHIEF JUSTICE RABNER’s opinion.
                                                3
       SUPREME COURT OF NEW JERSEY
           A-22/23 September Term 2018
                       081246


                 State of New Jersey,

        Plaintiff-Respondent/Cross-Appellant,

                          v.

            Luis Melendez, a/k/a Arturo
            Melendez and Pito Melendez,

       Defendant-Appellant/Cross-Respondent.

       On certification to the Superior Court,
   Appellate Division, whose opinion is reported at
       454 N.J. Super. 445 (App. Div. 2018).

       Argued                      Decided
  September 9, 2019             January 8, 2020


Laura B. Lasota, Assistant Deputy Public Defender,
argued the cause for appellant/cross-respondent (Joseph
E. Krakora, Public Defender, attorney; Laura B. Lasota,
of counsel and on the briefs).

Stephanie Davis Elson, Assistant Prosecutor, argued the
cause for respondent/cross-appellant (Esther Suarez,
Hudson County Prosecutor, attorney; Kerry J. Salkin and
Nicole D. DePalma, Assistant Prosecutors, on the briefs).

Alexander Shalom argued the cause for amicus curiae
American Civil Liberties Union of New Jersey (American
Civil Liberties Union of New Jersey Foundation,
attorneys; Alexander Shalom, Liza Weisberg, and Jeanne
LoCicero, on the brief).

                          1
            Valeria Dominguez, Deputy Attorney General, argued the
            cause for amicus curiae Attorney General of New Jersey
            (Gurbir S. Grewal, Attorney General, attorney; Valeria
            Dominguez, of counsel and on the brief).


        CHIEF JUSTICE RABNER delivered the opinion of the Court.


      In this appeal, we consider whether a defendant’s answer to a civil

forfeiture complaint can be introduced against him in a related criminal trial.

      After defendant’s arrest on drug and weapons charges, the State filed a

civil forfeiture action against $2928 in cash. The police found most of the

money during a search of an apartment. In the criminal case, the State alleged

that the cash -- as well as drugs, drug paraphernalia, and a handgun also found

in the apartment -- belonged to defendant.

      Defendant faced a dilemma about whether to answer the civil complaint.

Under the forfeiture statute, a claimant must file an answer and assert an

“interest in the property.” N.J.S.A. 2C:64-3(d). That step, however, can

incriminate a defendant in a related criminal case. On the other hand, if a

defendant fails to respond to a forfeiture complaint, he risks losing his

property.

      Here, without the benefit of an attorney, defendant filed an answer. He

asserted that the cash belonged to him and came from a lawful source. The


                                        2
State, in turn, introduced that answer in defendant’s criminal trial to try to link

him to the incriminating items found in the apartment.

      The Appellate Division concluded the answer should not have been

admitted under the doctrine of fundamental fairness. State v. Melendez, 454

N.J. Super. 445, 475 (App. Div. 2018). We agree with that outcome for

different reasons.

      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. Under the

reasoning of Garrity v. New Jersey, 385 U.S. 493 (1967), defendants cannot be

compelled to give up their Fifth Amendment protections in that way. We

therefore hold that a defendant’s statements in an answer to a civil forfeiture

action cannot be introduced in a parallel criminal proceeding in the State’s

case in chief.

      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.

      We also agree with the Appellate Division that criminal defendants who

have been served with civil forfeiture complaints are entitled to enhanced




                                         3
notice of certain issues. We outline several points about notice and refer the

matter to the Civil and Criminal Practice Committees for further review.

                                        I.

      Starting in October 2010, the Hoboken Police Department and the

Hudson County Prosecutor’s Office Municipal Task Force conducted a month-

long investigation into drug sales by defendant Luis Melendez. The police

used a confidential informant to buy drugs from defendant on four occasions at

a sixth-floor apartment in a building in Hoboken. Armed with that

information, the police obtained a search warrant for the apartment, and they

executed the warrant on November 8, 2010.

      Defendant’s parents and a young girl were in the apartment when the

police entered. The search focused primarily on the back bedroom. From a

dresser in the room and inside the bedroom closet, officers seized 347 glassine

bags of heroin packaged in bundles, drug paraphernalia, a handgun, six

hollow-point bullets, a radio scanner, two-way radios, and $2900 in cash in a

bank envelope. The police also found pill bottles prescribed to defendant at

addresses in Newark and Brooklyn as well as a set of handcuffs with a

woman’s name etched into them. A law enforcement officer who previously

had a long-term relationship with defendant testified at trial that the handcuffs

belonged to her. In addition, a detective testified that he saw personal papers

                                        4
in the back bedroom with defendant’s name on some of them. The documents

were not seized.

      During the search, another officer saw defendant leave an interior

stairwell onto the sixth-floor landing. The officer arrested him and seized $28

in his possession.

      Defendant was charged with various narcotics and weapons offenses.

The next day, a public defender represented him at a bail hearing.

      A month later, on December 20, 2010, the Hudson County Prosecutor’s

Office -- the same office prosecuting the criminal case against defendant --

filed a civil forfeiture complaint. The complaint named defendant and sought

to forfeit the $2928 in cash. The Prosecutor’s Office alleged the funds were

proceeds of illegal activities for which defendant had been charged criminally.

      Defendant was served with a copy of the civil forfeiture complaint in the

Hudson County jail on February 3, 2011; the State did not serve a copy on the

public defender who represented defendant in the parallel criminal proceeding.

      A summons attached to the complaint notified defendant that the State

“has filed a lawsuit against you,” and that

            [i]f you dispute this complaint, you or your attorney
            must file a written answer or motion and proof of
            service with the CLERK OF THE SUPERIOR COURT
            in the county listed above within thirty-five (35) days
            from the date you received this summons, counting the

                                        5
            date you received it. . . . A telephone call will not
            protect your rights; you must file and serve a written
            answer or motion . . . if you want the court to hear your
            defense.

            If you do not file and serve a written answer or motion
            within thirty-five (35) days, the court may enter
            judgment against you for the relief plaintiff demands,
            plus interest and costs of suit.

The summons also advised defendant he could contact Legal Services if he

could not afford a lawyer.

      Twelve days after defendant received the civil forfeiture complaint, a

grand jury in Hudson County returned an indictment that charged him with

thirteen drug and weapons offenses.

      The following month, on March 22, 2011, defendant sent a handwritten

letter to the court and asked for an extension of time to file an answer in the

forfeiture case. He also asked the court to appoint counsel to represent him.

      On April 25, 2011, defendant represented himself and filed an answer to

the forfeiture complaint. In the answer, defendant objected to the forfeiture of

the $2928 and asserted that he

            has proof that these funds were provided to him by the
            United States Government in the form of a check drawn
            on the account of the Bureau of Prisons inmate account.
            ...

            The seized funds were not part of or derived from any
            criminal activity.    They were the balance of
                                        6
            [defendant’s] inmate account while serving federal
            incarceration time. Therefore, they are not subject to
            forfeiture.

Defendant attached a copy of a U.S. Treasury check to the answer.

      Four months later, in August 2012, the State sought to adjourn the

forfeiture matter until the end of the criminal case. Ultimately, the court

dismissed the civil forfeiture case on December 10, 2012 for lack of

prosecution.

      The State moved to admit defendant’s answer to the forfeiture complaint

at his criminal trial to “show a nexus between” defendant and the contraband

found in the apartment. Over defendant’s objection, the trial court granted the

motion.

      The trial court found that (1) defendant waived his right against self-

incrimination by answering the complaint; (2) defendant was not entitled to

receive the warnings outlined in Miranda v. Arizona, 384 U.S. 436 (1966),

because there was no custodial interrogation; (3) the State was not required to

give defendant notice of his right to seek a stay of the forfeiture action, under

N.J.S.A. 2C:64-3(f); (4) there was no Sixth Amendment violation; and (5) the

admission of defendant’s answer did not offend fundamental fairness because

the State did not file the forfeiture complaint to advance the criminal matter

and did not act in bad faith. The trial court later denied defendant’s motion for

                                        7
reconsideration and noted that defendant could have asked for the civil action

to be stayed rather than answer the forfeiture complaint.

      At trial, the court took judicial notice that the Prosecutor’s Office had

filed a civil forfeiture action against defendant and the $2928 seized, and that

defendant filed an answer and attached a copy of a check. The court also

explained to the jury that

            [c]ivil means, civil court not criminal court. Like car
            accident cases. You know, [the] civil forfeiture action
            against Luis Melendez and the $2928 seized.

            . . . The civil answer and the attached check have been
            certified as true copies by court staff. So when I say I
            take judicial notice, that means I take as true . . . that
            those document[s] were filed.

The prosecutor then read aloud to the jury defendant’s answer to the civil

forfeiture complaint, and described the information on the attached

government check, with minor redactions the parties had agreed to.

      Defendant was convicted of the ten counts submitted to the jury; three

counts had been dismissed. The trial court sentenced defendant to an

aggregate term of thirty years in prison with fifteen years to be served without

parole.

      The Appellate Division affirmed defendant’s convictions on all counts

except second-degree unlawful possession of a weapon; that charge has since


                                        8
been dismissed. Melendez, 454 N.J. Super. at 454, 459. The court found no

Fifth Amendment violation related to the admission of defendant’s civil

answer in the criminal case because the court concluded defendant had the

option to move for a stay under the forfeiture statute. Id. at 464-65, 470, 473.

But for that option, the Appellate Division observed, “this scenario could raise

a Garrity Fifth Amendment issue.” Id. at 473. The court also found no Sixth

Amendment violation. Id. at 471.

      The Appellate Division, however, “conclude[d] that the entire chain of

events in connection with the forfeiture case violated principles of fundamental

fairness.” Ibid.; see also id. at 472 (discussing Doe v. Poritz, 142 N.J. 1, 108

(1995), and State v. P.Z., 152 N.J. 86, 117-18 (1997)). As a result, the court

found that defendant’s answer in the forfeiture case should not have been

introduced in his criminal trial. Id. at 471. Because of other evidence that

connected defendant to the back bedroom, the court nevertheless concluded the

error was harmless. Id. at 475.

      The Appellate Division also offered guidance “to prevent this

fundamentally unfair situation from recurring” and referred the matter to the

Civil and Criminal Practice Committees for consideration. Id. at 476-77.

      We granted defendant’s petition for certification limited to whether it

was error to admit defendant’s answer from the civil forfeiture action. ___

                                        9
N.J. ___ (2018). We also granted the State’s cross-petition, which raised

related questions. 236 N.J. 48 (2018). In addition, we granted the Attorney

General leave to appear as amicus curiae.

                                        II.

      Defendant argues that the procedure followed in this case forced him to

sacrifice his right against self-incrimination in order to invoke his right to due

process. He contends that the forfeiture statute required him to file an answer

and, therefore, the resulting conflict violated his right to remain silent. He

submits that he did not voluntarily waive his Fifth Amendment rights.

Defendant also claims that the process the State used violated his right to

counsel. He argues he is entitled to a new trial because the error was not

harmless.

      Defendant further submits that the Court should require the State to

serve a copy of a civil forfeiture complaint on defense counsel in a parallel

criminal case.

      The State acknowledged in its written submissions to this Court that all

claimants must file an answer under the forfeiture statute. Nonetheless, the

State maintains it was not improper to admit defendant’s answer to the

forfeiture complaint at his criminal trial. The State argues that defendant was

not entitled to Miranda warnings and that his right to counsel under the Sixth

                                        10
Amendment was not implicated here. The State also contends that the doctrine

of fundamental fairness was not violated here.

      In addition, the State argues that defendant’s answer in the forfeiture

case was admissible under N.J.R.E. 803(b)(1) as a statement by a party-

opponent. Finally, the State submits it would be unduly burdensome to require

it to provide courtesy copies of civil complaints to criminal defense attorneys,

who may not be willing or able to assist in a civil forfeiture case.

      The Attorney General echoes many of the State’s arguments: answering

a forfeiture complaint does not implicate Miranda; defendant’s Sixth

Amendment rights were not violated; and the Appellate Division erred when it

found the process here fundamentally unfair. Underlying those arguments, the

Attorney General stresses that a criminal defendant may request a stay in a

forfeiture proceeding in lieu of filing an answer. The State adopted that view

at oral argument. In any event, the Attorney General agrees with the Appellate

Division that any error in this case was harmless because of overwhelming

evidence that linked defendant to the back bedroom.

      The arguments of the American Civil Liberties Union of New Jersey

(ACLU) largely align with defendant’s position. The ACLU contends that the

State violated the Fifth Amendment when it threatened to forfeit defendant’s

property if he did not incriminate himself; the State failed to administer

                                        11
Miranda rights; and the State violated defendant’s Sixth Amendment rights by

contacting him directly despite knowing that he was represented by counsel.

The ACLU also recommends that civil forfeiture actions be presumptively

stayed while parallel criminal cases are pending.

                                       III.

      Civil forfeiture proceedings are quasi-criminal in nature. One 1958

Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 700 (1965). They implicate a

person’s due process rights under the Fourteenth Amendment. See United

States v. James Daniel Good Real Prop., 510 U.S. 43, 48, 53 (1993); United

States v. $8850 in U.S. Currency, 461 U.S. 555, 562 n.12 (1983). They also

invoke certain protections that apply to criminal matters. See, e.g., United

States v. U.S. Coin & Currency, 401 U.S. 715, 718 (1971) (applying the Fifth

Amendment guarantee against self-incrimination to civil forfeiture

proceedings); see also State v. Seven Thousand Dollars, 136 N.J. 223, 239

(1994). As a general rule, forfeiture statutes are disfavored and are strictly

construed against the State. Seven Thousand Dollars, 136 N.J. at 238.

                                        A.

      Our analysis flows from the language of New Jersey’s civil forfeiture

statute, N.J.S.A. 2C:64-1 to -9. Under the Code, certain types of property are

subject to forfeiture. The State may file a civil forfeiture action against “prima

                                        12
facie contraband” -- for example, controlled dangerous substances, firearms

that are possessed or used unlawfully, and other items. N.J.S.A. 2C:64-

1(a)(1). The State may also seek to forfeit derivative contraband, namely,

property that has been used or is intended to be used in furtherance of unlawful

activity -- like a car or a building, id. at -(1)(a)(2); property that is an integral

part of illegal activity -- such as the money used to finance an illegal gambling

enterprise, id. at -(1)(a)(3); and proceeds of illegal activities, id. at -(1)(a)(4).

       For derivative contraband, the State must file an action within ninety

days of a seizure. N.J.S.A. 2C:64-3(a). In an in rem proceeding of this type,

the lawsuit is against the property. Seven Thousand Dollars, 136 N.J. at 232-

33. Notice of the action must be given “to any person known to have a

property interest in the article.” N.J.S.A. 2C:64-3(c).

       Section 3(d) of the forfeiture statute is central to this appeal. It provides

that

             [t]he claimant of the property that is the subject of an
             action under this chapter shall file and serve his claim
             in the form of an answer in accordance with the Rules
             of Court. The answer shall be verified on oath or
             affirmation, and shall state the interest in the property
             by virtue of which the claimant demands its restitution
             and the right to defend the action.

             [N.J.S.A. 2C:64-3(d) (emphasis added).]



                                          13
If a timely answer is not filed, the property is disposed of pursuant to N.J.S.A.

2C:64-6. N.J.S.A. 2C:64-3(e). The prosecutor or the Attorney General then

divides the forfeited property with any other law enforcement entity that

participated in the investigation or prosecution resulting in the forfeiture, and

the property and proceeds must be used for law enforcement purposes.

N.J.S.A. 2C:64-6(a).

      Section 3(f) provides that “[i]f an answer is filed, the Superior . . .

[C]ourt shall set the matter down for a summary hearing as soon as

practicable.” N.J.S.A. 2C:64-3(f). The next sentence of section 3(f) notes that

“[u]pon application of the State or claimant, if he be a defendant in a criminal

proceeding arising out of the seizure, the Superior . . . [C]ourt may stay

proceedings in the forfeiture action until the criminal proceedings have been

concluded by an entry of final judgment.” Ibid. (emphases added).

      At the hearing, the State must prove by a preponderance of the evidence

that the derivative contraband seized “was connected to unlawful activity.”

Seven Thousand Dollars, 136 N.J. at 233.

                                        B.

      To understand the meaning of a statute, we look to the plain language

the Legislature used and give words their ordinary meaning. State v. Fede,




                                        14
237 N.J. 138, 147-48 (2019); DiProspero v. Penn, 183 N.J. 477, 492 (2005);

N.J.S.A. 1:1-1.

      Here, the language and structure of the civil forfeiture statute convey a

straightforward meaning: anyone who seeks to claim property that is subject

to forfeiture must file and serve a claim to the property “in the form of an

answer,” and the answer must state the claimant’s “interest in the property.”

N.J.S.A. 2C:64-3(d). If an answer is not timely filed, the property is forfeited.

Id. at -3(e). If an answer is filed, the case proceeds in court. Id. at -3(f). In

short, the statute requires a claimant to file an answer to defend against a

forfeiture action.

      The last sentence in subsection (f) -- allowing the State, or a claimant

who is a defendant in a criminal case connected to the seizure, to apply for a

stay of a forfeiture action -- does not alter the statute’s basic premise or

structure. Claimants “shall file . . . an answer”; they may also apply for a stay.

The statute, however, does not provide for the filing of a stay motion alone; an

answer must be filed first to assert a claim.

                                        IV.

      The framework of the civil forfeiture statute raises concerns under the

United States Supreme Court’s ruling in Garrity v. New Jersey. In Garrity, the




                                        15
State Attorney General investigated allegations that certain police officers

were fixing traffic tickets. 385 U.S. at 494. Before questioning, each officer

             was warned (1) that anything he said might be used
             against him in any state criminal proceeding; (2) that he
             had the privilege to refuse to answer if the disclosure
             would tend to incriminate him; but (3) that if he refused
             to answer he would be subject to removal from office.

             [Ibid.]

The officers answered the Attorney General’s questions, and some of their

responses were used against them in later criminal prosecutions. Id. at 495.

They appealed their convictions and argued their statements had been coerced.

Ibid.

        The United States Supreme Court reversed the convictions. The Court

explained that the officers were given a choice “either to forfeit their jobs or to

incriminate themselves.” Id. at 497. That option -- “to lose their means of

livelihood or to pay the penalty of self-incrimination” -- was “the antithesis of

free choice to speak out or to remain silent.” Ibid. The Court likened the

practice to the interrogations it reviewed in Miranda and found the officers’

statements “were infected by . . . coercion.” Ibid. As a result, the Court held

the statements were not voluntary and could not be admitted at a later criminal

proceeding. Id. at 498, 500.



                                        16
      The Court also rejected the argument that the officers had waived their

rights. “Where the choice is ‘between the rock and the whirlpool,’ duress is

inherent in deciding to ‘waive’ one or the other.” Id. at 498.

      The Court emphasized that “[t]here are rights of constitutional stature

whose exercise a State may not condition by the exaction of a price.” Id. at

500 (listing examples). In light of the guarantees of the Fourteenth

Amendment, the Court concluded the State may not use “statements obtained

under threat of removal from office” in a criminal proceeding. Ibid.

      Citing Garrity and other cases, this Court has observed that

             [c]ustodial interrogations by law enforcement officers
             are not the only special circumstances in which the
             Fifth Amendment privilege against self-incrimination
             is self-executing. Both the United States Supreme
             Court and our New Jersey courts have consistently held
             that the state may not force an individual to choose
             between his or her Fifth Amendment privilege and
             another important interest because such choices are
             deemed to be inherently coercive.

             [P.Z., 152 N.J. at 106 (citation omitted).]

      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. To defend against a forfeiture

complaint, claimants who are also criminal defendants must file an answer that

states their interest in the property. In other words, to assert their
                                         17
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. Alternatively, they can refuse to answer and

lose their property.

      We need go no further than the reasoning in Garrity to find that a

defendant’s choice to file an answer under those circumstances is not freely

made. It is fraught with coercion. A criminal defendant’s statements in an

answer to a civil forfeiture complaint thus cannot be considered voluntary. As

a result, they cannot be introduced in the State’s direct case in a later criminal

proceeding. See also United States v. U.S. Currency, 626 F.2d 11, 15-16 (6th

Cir. 1980) (noting the tension claimants face between “incriminating

themselves” or “failing to vigorously pursue their claims” to property, in the

context of a forfeiture action filed under federal law, and remanding to the

district court for “a solution which both protects the privilege and permits the

forfeiture case to go forward”).

      We need not decide in this appeal whether a defendant can be impeached

if he testifies at a later criminal trial and contradicts statements he made in a

forfeiture action. We note that a statement obtained through physical coercion

cannot be used at trial. Miller v. Fenton, 474 U.S. 104, 109 (1985); Brown v.

Mississippi, 297 U.S. 278, 286-87 (1936). The same principle applies to

                                        18
statements obtained through threats of physical violence. See Payne v.

Arkansas, 356 U.S. 560, 561, 567 (1958). A statement made under

circumstances that violated the requirements of Miranda, however, can be used

“for impeachment if the[] ‘trustworthiness [of the evidence] satisfies legal

standards.’” Mincey v. Arizona, 437 U.S. 385, 397-98 (1978) (quoting Harris

v. New York, 401 U.S. 222, 224 (1971)); see also Md. Code. Ann., Crim. Proc.

§ 12-313 (“Except for purposes of impeachment, a statement made by a person

regarding ownership of seized property during the course of a forfeiture

proceeding is not admissible in a related criminal prosecution.”).

      In light of the above analysis, it is not necessary to consider the scope of

Simmons v. United States, 390 U.S. 377 (1968). In that case, a defendant

moved to suppress a suitcase found in his mother’s home, which contained

evidence linking him to a bank robbery. Id. at 380-81. To establish standing,

he testified that the suitcase was similar to one he owned, and that he owned

the clothing found inside it. Id. at 381. That testimony was used against him

at trial. Ibid.

      The United States Supreme Court found it “intolerable” that a defendant

should either have “to give up what he believed . . . to be a valid Fourth

Amendment claim or . . . to waive his Fifth Amendment privilege against self-

incrimination.” Id. at 394. The Court therefore held “that when a defendant

                                       19
testifies in support of a motion to suppress evidence on Fourth Amendment

grounds, his testimony may not thereafter be admitted against him at trial on

the issue of guilt unless he makes no objection.” Ibid.

      Three years later, in McGautha v. California, 402 U.S. 183, 211-13

(1971), the Court limited Simmons and raised questions about the breadth of

its reasoning. Because our ruling relies on Garrity, we need not decide

whether Simmons would apply to the circumstances presented in this case. We

also need not reach defendant’s other arguments under the Fifth or Sixth

Amendments or the doctrine of fundamental fairness.

      We reject the State’s argument that defendant’s civil forfeiture answer

was admissible under N.J.R.E. 803(b)(1) as a statement by a party-opponent.

A statement obtained in violation of a constitutionally protected right is

inadmissible in the State’s case in chief even if it satisfies a rule of evidence.

                                         V.

      The Appellate Division aptly noted that criminal defendants who are

served with a civil forfeiture complaint should receive enhanced notice about

certain issues. Melendez, 454 N.J. Super. at 476-77. We agree. 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

                                        20
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. Id. at 474.

      To comply with the Appellate Division’s ruling, the State began

providing other defendants in civil forfeiture actions with enhanced written

notice. The notice tracks the Appellate Division’s guidance and reasoning,

which has been modified.

      We refer the matter to the Clerk of the Superior Court to consider any

changes to the standard form summons now in use. We also refer these issues

to the Civil and Criminal Practice Committees for their consideration.

                                         VI.

      For the reasons stated above, it was error for the State to introduce

defendant’s answer to the forfeiture complaint at his criminal trial. In light of

other evidence that connected defendant to the back bedroom of the apartment,

where the evidence was seized, that error was harmless.

      An error is harmless unless, in light of the record as a whole, there is a

“possibility that it led to an unjust verdict” -- that is, a possibility “sufficient to

raise a reasonable doubt” that “the error led the jury to a result it otherwise

                                          21
might not have reached.” State v. Macon, 57 N.J. 325, 335-36 (1971); see also

R. 2:10-2.

      During the search, the police found evidence that directly linked

defendant to the back bedroom of the apartment where the $2900 in cash was

found: two pill bottles bearing his name were in the dresser; his former

girlfriend’s monogrammed handcuffs were in the closet; and some of his

personal papers were in the bedroom. In addition, the police arrested

defendant as he left the stairwell onto the sixth floor -- the same floor as the

apartment. And his parents were in the apartment when law enforcement

officers arrived.

      Under the circumstances, we do not find that the introduction of

defendant’s answer to the civil forfeiture complaint, in which he admitted that

he owned the money in the closet, was “clearly capable of producing an unjust

result.” R. 2:10-2.

                                       VII.

      For the reasons outlined above, we affirm and modify the judgment of

the Appellate Division.



    JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-VINA,
SOLOMON and TIMPONE join in CHIEF JUSTICE RABNER’s opinion.


                                        22
