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California: Penal Code Section 4573 Applies to Arrestees Who, When Booked, are Found in Possession of Controlled Substances

The California Supreme Court has held that Penal Code section 4573, which criminalizes the act of “knowingly bring[ing]” a controlled substance into a jail or prison, applies to a person in possession of a controlled substance when arrested for another crime, who then brings the drugs into jail pursuant to that arrest.

On Thanksgiving night in 2005, Tommy Gastello was stopped by a police officer for riding a bicycle without a light. Gastello acted suspiciously and was arrested for being under the influence. Before entering Kings County Jail, Gastello was informed by the arresting officer that it was a felony to bring drugs into the jail. When asked if he understood, Gastello said, simply, “yes.”

Upon being booked, however, a small bindle, wrapped in plastic, containing .32 grams of methamphetamine was found in his sweatshirt.

A jury convicted Gastello with three counts, possession of a controlled substance, bringing a controlled substance into jail (in violation of section 4573), and being under the influence (a misdemeanor).

On direct appeal, the California Court of Appeal reversed the section 4573 conviction, reasoning that Gastello merely “submit[ted] to the lawful authority of the police” and lacked a criminal intent to bring drugs into jail. The Court of Appeal further reasoned that it violated the Fifth Amendment privilege against self-incrimination to compel a defendant to confess his guilt of unlawful drug possession before entering jail, or alternatively to remain silent and bring the controlled substance inside. To the Court of Appeal, this was tantamount to punishing a defendant for exercising his (or her) constitutional right to remain silent.

The Supreme Court disagreed with the Court of Appeal’s reasoning. It held that, under the statute, it was immaterial that a defendant was not present by choice in jail. It further held that, insofar as section 4573 punishes a nontestimonial act (knowingly bringing drugs into a jail or prison), the Fifth Amendment privilege against (testimonial) self-incrimination was not violated. See: People v. Gastello, 49 Cal.4th 395, 232 P.3d 650.

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Related legal case

People v. Gastello