Metropolitan News-Enterprise


Friday, June 25, 2010


Page 1


S.C. Takes Broad View of Law on Bringing Drugs Into Jail

Convictions Upheld Where Inmates Had Substances on Their Persons When Booked


By STEVEN M. ELLIS, Staff Writer


A state law making it a crime to bring a controlled substance into a jail applies to arrestees with drugs secreted on them who are not present by choice or intending to smuggle drugs, the state Supreme Court unanimously ruled yesterday.

In reinstating a conviction for violation of Penal Code Sec. 4573, the justices also unanimously rejected the Fifth District Court of Appeal’s conclusion that the statute raises Fifth Amendment self-incrimination concerns by coercing arrestees to admit they possess drugs, and punishing them more harshly if they fail to do so and instead bring the drugs into a jail.

In a companion case, the court affirmed a First District decision upholding the conviction of a man who falsely denied having drugs on his person when he was booked into the Solano County jail and was convicted of violating Sec. 4573.

Tony Richard Low and Tommy Gastello were both convicted under the statute after they were found with methamphetamine on their person during the jail intake process. In both cases, police conducted a pat-down search upon arrest, but did not find any contraband.

Denied Having Drugs

Low was arrested in Solano County while driving a stolen vehicle. Police advised him that it was illegal to bring a controlled substance into jail, but he denied having any drugs. A search as he was being booked revealed a small packet of methamphetamine in his sock.

Gastello was arrested in Kings County for being under the influence of a controlled substance after he became agitated when police stopped him and his adult son for riding bicycles on a dark street without required lights. He, too, was advised that he could not bring drugs into jail, but Gastello indicated only that he understood the prohibition.

He said nothing of drugs until authorities conducting a brief medical screening found a small bindle containing methamphetamine in his sweatshirt.

Low and Gastello appealed, respectively, to the First and Fifth Districts. They argued that Sec. 4573 did not apply to arrestees who had no intent to bring drugs into jail. They also contended that the law violated the Fifth Amendment by making them choose between admitting to illegal drug possession and risking a conviction of bringing a controlled substance into a jail.

Unpublished Opinion

The First District in March 2007 rejected Low’s arguments in an unpublished opinion. Writing for the unanimous panel, Presiding Justice Barbara J.R. Jones said Low violated the statute by knowingly having methamphetamine in his possession when he was brought into jail after his arrest on other charges, and that the law didn’t violate the Fifth Amendment.

But nearly a month later, the Fifth District, reviewing Gastello’s appeal, concluded the opposite in an opinion by Justice Rebecca A. Wiseman, who also wrote for a unanimous panel.

Low, relying on the Fifth District’s opinion, sought review by the California Supreme Court, which accepted the case and ordered review of Gastello’s case on its own motion.

Focusing first on Low’s case, Justice Marvin R. Baxter wrote for the high court that a Sec. 4573 conviction was supported.

Noting that the statute makes it a felony for “any person” to “knowingly bring” a controlled substance into a custodial setting, he said there was no authority supporting Low’s view that the crime requires an intent or scheme to smuggle drugs over and above mere knowledge that one is possessing them.

Baxter also said that enforcement of the statute didn’t violate the Fifth Amendment because the law itself did not coerce anyone to admit guilt of any crime or punish them for failing to do so. Reasoning that liability was not premised on testimony, he explained:

“[Sec. 4573] simply prevents all persons, including those arrested while unlawfully possessing drugs and committing other crimes, from engaging in a nontestimonial criminal act—walking into a custodial setting with knowledge they are bringing controlled substances with them.”

Turning to Gastello’s case, Baxter rebuffed the Fifth District’s conclusions, and said the facts demonstrated that Sec. 4573 involved no compelled incriminating testimony for Fifth Amendment purposes “perhaps even more clearly” than in Low’s case.

“Unlike in Low, where the defendant falsely denied possessing any drugs at the jail entrance, [Gastello] said nothing substantive in response to the arresting officer’s warning about bringing drugs with him,” Baxter commented. “Any difficulty defendant faced in making this choice was largely of his own making. He committed a nontestimonial act for which he was not immune from prosecution or conviction.”

The cases are People v. Low, 10 S.O.S. 3364, and People v. Gastello, 10 S.O.S. 3372.


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