Barrera v. State

         Appeal from the District Court of Campbell County The Honorable John R. Perry, Judge

          Representing Appellant: Office of the State Public Defender: Diane Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel; Eric M. Alden, Senior Assistant Public Defender. Argument by Mr. Alden.

          Representing Appellee: Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Christyne M. Martens, Senior Assistant Attorney General. Argument by Ms. Martens.

          Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.

          OPINION

          DAVIS, Justice.

         [¶1] Mario Barrera appeals his felony conviction for taking a controlled substance into a jail.^[1] The statute governing that offense, Wyo. Stat. Ann. § 6-5-208 (LexisNexis 2017), provides in pertinent part, "Except as authorized by a person in charge, a person commits a felony . . . if that person takes or passes any controlled substance or intoxicating liquor into a jail[.]" We affirm.

         ISSUES

         [¶2] Barrera raises three issues. We restate and rearrange them as follows.

I. Can an arrestee, whose presence at a jail is involuntary, nevertheless voluntarily take controlled substances into the jail in violation of § 6-5-208?

II. Is a booking area part of a jail for purposes of § 6-5-208?^[2]

III. Did the State's theory and argument deprive Barrera of his Fifth Amendment right to be free from compelled self-incrimination?

         FACTS

         [¶3] Gillette police officers Overton, Dillard, and Foutch responded to a reported bar fight at approximately 2:13 a.m. on January 30, 2016. Several men had allegedly left the scene, leaving one man unconscious in the establishment's parking lot. After interviewing witnesses and obtaining descriptions of some of the participants in the fight, the officers began to check vehicles in the parking lot to determine whether any of those involved-particularly, a heavy-set Hispanic male and a female who had left her purse behind-might still be present.

         [¶4] Eventually, Officer Overton encountered the heavy-set Barrera, a female driver, and a second man in a red Chevrolet pickup truck. He detected a faint odor of marijuana, and Officer Foutch spotted a pistol in a map pocket on the driver-side door. Consequently, the officers asked all of the occupants to get out of the vehicle and patted them down for weapons. When Barrera exited from the front passenger seat, he handed the officers two open bottles of beer. Officer Dillard then ran his drug dog around the car, and upon the dog's alerting to the presence of controlled substances, the officers searched the interior of the truck. In the woman's purse they found approximately four grams of marijuana and a small baggie containing what they suspected to be methamphetamine. She was arrested for possession of those substances. The officers also located marijuana residue in the cup holders in the front console.

         [¶5] Shortly thereafter, Officer Foutch arrested Barrera for a violation of Gillette's open container ordinance and searched him to a limited extent incident to that arrest. After discovering cigarette rolling papers during that search, Foutch advised him twice that he would be searched more thoroughly at the jail and that he would face additional charges if he had any drugs on him and took them into the jail. On both occasions Barrera said he had nothing on him. The officer similarly advised Barrera a third time while transporting him to the jail, and he again received the same response.

         [¶6] After proceeding into the county detention facility's secured garage, Foutch turned Barrera over to Detention Officer Kellison, who showed and read him a sign on a door to the secured passageway leading into the jail. The sign advised that he would be charged with a felony if he brought any illegal substances or liquor into the jail. Kellison asked whether he had any such items on his person, and Barrera said, "No." The three men then entered the passageway, and the jail control center remotely closed and secured the door behind them and opened a door at the other end of the passage into the jail's booking area. The second door had a sign with the same warning as the first. Officer Foutch remained in the booking area to prepare his initial intake paperwork relating to Barrera.

         [¶7] In the meantime, Officer Kellison searched Barrera, emptying his pockets and inventorying the personal items he found. Kellison found a very small baggie in the watch pocket on the right side of Barrera's pants. It contained slightly more than 1.8 grams of what was later identified as methamphetamine.

         [¶8] On February 1, 2016, Barrera was charged with the felony of taking methamphetamine into a jail under the statute noted above. In mid-June, the parties stipulated to the joinder of that charge with a misdemeanor count of possessing methamphetamine that had been filed in the circuit court.

         [¶9] On April 15, 2016, Barrera filed a motion to dismiss the felony charge. He argued that § 6-5-208 required proof that he voluntarily took or passed a controlled substance into the jail, but that he could not have done so voluntarily because he was under arrest ...