Government Compels Self-Incrimination in Possession of Narcotics Cases

The California Supreme Court overturned the Court of Appeal's reversal of defendant's conviction under California Penal Code section 4573, which makes it a felony for any person to knowingly bring a controlled substance into a custodial setting, where: 1) the statute applies to someone who has a controlled substance in his possession when arrested for another crime, and who knowingly and voluntarily brings the drugs into jail when booked pursuant to that arrest; and 2) violation of section 4573 does not involve compelled self-incriminating "testimony," but rather the non-testimonial act of knowingly bringing drugs into a correctional facility. People v. Gastello.

The ruling in this case results in the absurd conclusion that a person who is arrested for an unrelated offense, and is taken to jail and has drugs in their pockets, they must disclose to the Officer's that the drugs are in their pockets otherwise they can be charged with unlawfully bringing drugs in to the jail. However, once the person discloses the unlawful possession of the drugs, they can then be charged with possession of a controlled substance. It seems to me that the government is compelling self-incrimination in this case and therefore the United States Supreme Court should grant review under the Federal Constitution.

Scott Hughes is a criminal defense lawyer in Newport Beach, California practicing in State and Federal Court.