What is H & S 11366.8? Concealing Drugs? Punishment?

Over the last 40 or 50 years, it has been common to hear on the radio or read in the news that law enforcement arrested someone crossing into the United States with multiple kilograms of some drug, often methamphetamine, heroin or cocaine.  The news may describe that police discovered a false compartment in the car or truck that carried the drugs.  The compartment may be inside a spare tire or under the car, or within the engine area, or inside a seat.

Such news no doubt has inspired others to try a similar method of transporting drugs, most often in a car or truck.

As might be expected, lawmakers have recognized this particular modus operandi of transporting drugs and specifically tailored a separate crime to punish this technique.  That law is Health and Safety Code § 11366.8, which states: “a) Every person who possesses, uses, or controls a false compartment with the intent to store, conceal, smuggle, or transport a controlled substance within the false compartment shall be punished by imprisonment in a county jail for a term of imprisonment not to exceed one year or pursuant to subdivision (h) of Section 1170 of the Penal Code.”  

This offense is a “wobbler,” meaning, depending upon the case facts and the defendant’s prior criminal history, punishment is either a maximum of one year in county jail or state prison for 16 months, two years or three years, which will be served in county jail under Assembly Bill 109 unless the person is a registered sex offender.

The law also sets forth, in subsection (b), that anyone who designs, constructs or helps build such a hidden compartment is guilty of a felony.  This violation is not a “wobbler,” meaning it is not possibly punished as a misdemeanor.  

Under both sections, probation is possible.  One may also plea instead to possession for sale of a controlled substance (Health & Safety Code § 11351), which removes the stigma attached to 11366.8, which is that defendant is a sophisticated, perhaps career, drug seller.

Under subsection (c), “vehicles” includes cars, trucks, buses, aircraft, boats, ships, yachts, and vessels.  Bicycles are not included.

Under subsection (d), “’false compartment; means any box, container, space, or enclosure that is intended for use or designed for use to conceal, hide, or otherwise prevent discovery of any controlled substance within or attached to a vehicle, including, but not limited to, any of the following: (1) False, altered, or modified fuel tanks; (2) Original factory equipment of a vehicle that is modified, altered, or changed; (3) Compartment, space, or box that is added to, or fabricated, made, or created from, existing compartments, spaces, or boxes within a vehicle.”

It is important to note that police do not need to find any controlled substance in the false compartment in order to arrest someone for this crime.  Likewise, a prosecutor may file a case alleging such a violation without evidence that there was any controlled substance found in the false compartment.  However, there must be some evidence that the defendant had the intent to use the false compartment to transport a controlled substance and this may be lacking.

The most common defense to this charge is that there was an illegal search of the “vessel” without a warrant or a confession was coerced in violation of the Fifth Amendment, but these are difficult defenses to raise based on California law.  

A better defense may be that the person lacked the intent to use the hidden space to transport a controlled substance, which may be viable if the person has no prior criminal history, particularly for possession or sales of a controlled substance, or if there is a credible alternative explanation for having such a compartment, for example, to hide cash or other valuables.