Investigating and Prosecuting Hidden-Compartment Cases
Investigating and Prosecuting Hidden-Compartment Cases
By Todd F. Prough, M.A., and Robert Veiga, J.D.
The trafficking of illegal drugs can be viewed within the paradigm of legally traded commodities, such as televisions or automobiles, which follow a similar process—manufacture, shipment to wholesalers, transfer to retailers, and sale to consumers. In the world of illegal narcotics, the progression from drug creation to drug use is known as the chain of distribution.
Beyond the sale to a customer, many other and, unfortunately, often ignored activities aid or assist this illegal activity. These can include diverting precursor chemicals to manufacture drugs, renting hotel rooms to conduct
transactions, or laundering drug proceeds to legitimatize profits. Although the synthesis of drugs can be a lengthy process, they spend the majority of their lifespan (i.e., the time between manufacture and use) being transferred along the chain of distribution. For example, after their manufacture in foreign countries, heroin and cocaine are transported to the U.S. border, smuggled across, transferred from wholesale to retail dealers, and then sold to customers. Even domestically produced drugs, such as pharmaceuticals, marijuana, and methamphetamine, must be transported among various links in the distribution chain.
Drugs as commodities possess two specific characteristics: they are illegal and expensive. These characteristics pose special transportation problems for drug traffickers. Because they are illegal, drugs must be transported in a manner that avoids detection by law enforcement. And, as they are valuable, drugs must be transported securely to ensure that they will not be lost, stolen, or seized. How can traffickers satisfy these requirements?
Traffickers can smuggle drugs in numerous ways. Human couriers move drugs by concealing them with their bodies either by hiding them in or under their clothing or by inserting or ingesting them into their persons. Some traffickers use go-fast boats or small planes to smuggle drugs into the country. Others simply ship the drugs in parcels via the postal service or retail shippers and hope law enforcement will not interdict the packages. Another popular technique is to store the drugs within a hidden or concealed compartment in a vehicle. These compartments, also known as hides, traps, or clavos, are designed to disguise their existence by blending into the normal elements found in many means of transportation, such as cars, trucks, vans, boats, or airplanes.1 Such compartments can be built into almost any part of a vehicle, including seats, gas tanks, trunks, spare tires, and dashboards.
Hidden compartments can vary in size and complexity. Some are designed to hold a single handgun while others can contain hundreds of pounds of drugs. In addition, the sophistication of a hide is only limited by the creativity and technical knowledge of its designer or installer. Rudimentary compartments consist of a very basic design with little or no alteration of the vehicle. Examples include using the space behind the center of the steering wheel or cutting away part of the rear bumper and adding a lid with hinges. More elaborate hides appear as part of the vehicle to inhibit the ability of law enforcement to discover them. Upon a cursory or even thorough examination, officers may overlook the hidden compartment because of its disguise as an unaltered component of the vehicle. However, the actual compartment is covered by a lid or built as a drawer. The lid or drawer is powered open by an electronic or pneumatic motor that can be triggered by activating a complex series of switches, such as turn signals, power windows, or the defroster. Beyond the difficulty of actually detecting the hide, officers often cannot determine the proper series of switches needed to open it. This provides an added level of protection for the illegal contents hidden inside the compartment.2
Unlike drug transactions, which can transpire in hotel rooms, alleys, or parking lots, the installation of hides almost always occurs in some type of garage. Depending on the sophistication of the hide, equipment, such as acetylene torches to cut metal and hydraulic lifts to get access to the undercarriage of the vehicle, may be necessary. Because hide installers use specific work spaces, tools, and mediums (i.e., vehicles), investigators can employ several techniques to investigate hidden compartment cases.
Officers can use typical techniques employed in traditional drug investigations. Law enforcement officers can primarily identify those engaged in installing hides through the use of cooperating defendants perhaps arrested in possession of such a hide, from established confidential sources, or from anonymous tipsters. Investigators can employ an undercover operation to infiltrate the business and gather intelligence or evidence. For example, a confidential source or undercover agent may solicit the installer to sell a vehicle already equipped with a hide or to install a hide in a vehicle provided by law enforcement. Investigators should attempt to elicit statements that clearly demonstrate the installer knows the compartment will be used for illegal items.
For instance, the undercover operative could negotiate with the installer and specify that the hide should hold kilos of a drug, provide easy access to a firearm, or ensure that it will not be discovered by law enforcement. The undercover operative also could request references from satisfied customers of the installer, thereby gathering more evidence and identifying other drug traffickers. The undercover operation should be coupled with surveillance that could identify coconspirators, as well as other drug traffickers or vehicles containing hides.
Investigators also may seize a vehicle containing a hide. In those instances, they should research the ownership records. Officers may find a pattern of "straw" owners, thereby providing leads to other vehicles of interest owned by the same person. Upon dismantling the hide, investigators should check all of its components for serial numbers. By researching those numbers through the manufacturer, auto parts dealer, or junkyard, investigators may identify who purchased the components used in the construction of the hide. These steps could yield evidence crucial to the identification or prosecution of installers.
In addition, an often underused technique is to exploit the benefits of an off-line National Crime Information Center (NCIC) query. This is a special search conducted by certified personnel for information not available in online queries, such as those using incomplete information, like a partial license plate number or VIN. Investigators also can request a search of transaction logs to determine if another agency has queried the person or vehicle.3 Officers should request off-line NCIC searches on license plates or VINs from vehicles containing hides. The results will show what police agencies, if any, queried the vehicle, thereby creating a travel timeline for the vehicle, which may create new leads. For example, the hides may be installed in one state, but the vehicles may be used in other states to transport drugs. In addition, further research into the results of off-line searches by contacting the inquiring agencies may identify the drivers or passengers of vehicles. Off-line searches can provide a much broader picture of the illegal activity and uncover actionable leads or valuable intelligence that investigators may not otherwise possess.
Unfortunately, the legal tools available in charging cases involving hidden compartments are fairly limited. There is no federal statute specifically addressing the design, manufacture, or use of a trap, or, in the slang, clavo. Instead, charges at the federal level must be addressed through a statute dealing with drug paraphernalia.
That statute, Title 21, U.S. Code, Section 863(a) (1), provides in pertinent part: a) It is unlawful for any person 1) To sell or offer for sale drug paraphernalia.
The term drug paraphernalia is further defined in Section 863(d) to mean:
Any equipment, product, or material of any kind which is primarily intended or designed for use in manufacturing, compounding, converting, concealing, producing, processing, preparing, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance, possession of which is unlawful under this subchapter.4
An analysis of the federal statute demonstrates at least two significant drawbacks to its effective use in cases involving hidden compartments. First, as set forth in the overall prohibition of Section 863(a), the statute only applies in those instances where a person sells or offers for sale an item of drug paraphernalia. Second, the drug paraphernalia definition contains only one reference to a category that could be construed as covering a hidden trap: "Any equipment...which is primarily intended or designed for use in...concealing...a controlled substance, the possession of which is unlawful." (Emphasis added.)
Therefore, to establish a violation of Section 863 in a hidden trap case, the following elements must be established beyond a reasonable doubt:
1) The perpetrator sold or offered drug paraphernalia for sale.
2) The hidden trap was equipment or a product primarily intended or designed for use in concealing a controlled substance.
3) The perpetrator acted knowingly.
As a result, Section 863 cases are limited to situations where an undercover officer or informant solicits a suspect to build a hidden trap for a fee. This type of investigation would necessarily involve not only the development of evidence as to construction of the device but also the collection of recorded conversations between the law enforcement agent and the target in which the target is placed on notice that the device will be used for concealing a controlled substance. Unfortunately, this appears to be the only way that the required elements may be proven.
A recent case in the U.S. District Court for the District of New Hampshire is illustrative. In United States v. DeLeon, the defendants were charged with conspiracy to sell drug paraphernalia, aiding and abetting the sale of drug paraphernalia, and substantive drug offenses. The charges arose from an undercover investigation in which an informant solicited DeLeon and others to construct a hidden compartment in two separate vehicles, which were supplied by law enforcement. During the investigation, the informant engaged in several conversations in which he made clear that he planned to use the clavos to transport controlled substances. Despite these assertions, the targets nevertheless agreed to construct the devices, thereby demonstrating the necessary intent to prove a violation of the statute.5
Surprisingly, in light of the absence of an effective federal response for criminalizing the possession or use of a hide, a survey of existing state statutes reveals that only a small number of state legislatures have considered this significant problem and addressed it with legislation specific to the possession and use of hidden traps for transporting persons, controlled substances, and other contraband. The California legislature appears to be the first to address the issue. In 1993, it passed Section 11366.8 of the California Health and Safety Code titled, Construction, possession or use of a false compartment with intent to conceal a controlled substance. The statute addresses two primary types of conduct: 1) those who possess, use, or control a false compartment; and 2) those who design, build, alter, install, or fabricate a false compartment within a vehicle. Of course, the conduct contemplated by the statute must be in connection with "the intent to store, conceal, smuggle, or transport a controlled substance." 6
The statute proscribes two potential penalties, treating possessors and users more leniently than designers and builders. Under the California scheme, those engaging in possessory conduct face the prospect of imprisonment for up to 1 year, while manufacturers face up to 3 years of confinement.7
An Illinois statute that took effect in 2000, False or secret compartment in a motor vehicle, took a somewhat different approach. Section 12-612 of Chapter 625 of the Illinois Vehicle Code makes it unlawful for a person to "own or operate any motor vehicle he or she knows to contain a false or secret compartment" or to "install, create, build or fabricate a false or secret compartment."8
As originally enacted, the statute specified that the intention of the person to use the false compartment to conceal its contents from a law enforcement officer could be inferred from a variety of factors, including the discovery of a person, firearm, controlled substance, or other contraband within the false compartment or from the discovery of evidence of the prior placement of those items within such compartment. However, in People v. Carpenter, 368 Ill. App. 3d 299 (2006), that portion of the statute was held to violate due process because it was overly broad and potentially punished innocent behavior.9
An amendment to the statute effective in 2010 addressed the constitutional violation and criminalized two specific acts: 1) to own or operate with criminal intent any vehicle the perpetrator knows to contain a false or secret compartment that is used or has been used to conceal a firearm or controlled substances; and 2) to install, create, build, or fabricate in any vehicle a false or secret compartment, knowing that another person intends to use it to conceal a firearm or controlled substance.10 A violation of this statute results in the imposition of a consecutive sentence to the underlying controlled substance or firearms offense.11
By contrast, the reach of a Georgia statute, Vehicles containing false or secret compartments; owning or operating prohibited, exceeds that of both the California and Illinois laws. Section 16-11-112(c)(1) of the Georgia Code Annotated, which carries a penalty of up to 2 years imprisonment, makes it unlawful for persons to "own or operate any vehicle containing a secret compartment, to knowingly install, create, build, or fabricate the same in any vehicle, and to knowingly sell, trade, or otherwise dispose of a vehicle containing a secret compartment.12
The Georgia law, which took effect in 2006, employs a criminal intent inference similar to that used in the original, unconstitutional, Illinois statute. The Georgia statute clearly sets out the factors to be considered, including the knowing possession of a false compartment that is concealing a person for an unlawful purpose, concealing a controlled substance or other contraband, or showing evidence of previous concealment of the same. However, in light of the Illinois ruling, it is unclear whether the statute will survive if it is challenged in court.
Finally, Section 76-10-2801 of the Utah Criminal Code titled, Vehicle compartment for contraband – penalties, makes it a class A misdemeanor for a person "to knowingly possess, use, or control a vehicle which has a compartment with the intent to store, conceal or transport contraband." Like California, Utah's statute, which took effect in 2008, punishes manufacturers more severely, making it a third-degree felony for a person to facilitate the storage, concealment, or transportation of contraband by designing, constructing, building, altering, fabricating, installing, creating, or attaching a hidden compartment to or within a vehicle. As in the initial version of the Illinois statute and the current version of the Georgia statute, Utah also employs inference language for determining the existence of criminal intent.13
Law enforcement agencies should investigate individuals or organizations constructing hides for numerous reasons. First, even if prosecution is unlikely, investigating hide installers can provide vital intelligence regarding drug trafficking organizations. Knowing which vehicles may contain hides affords law enforcement personnel the opportunity to focus their attention on individuals or organizations using those cars. This targeted approach allows for the better application of scarce police resources.
Second, investigating and prosecuting installers can contribute to the dismantling of drug trafficking organizations. Like money launderers, hide installers provide a vital service to drug traffickers. Not having the ability to securely conceal their wares may deter drug dealers from engaging in the enterprise. In addition, with a lack of adequate hides, law enforcement is more likely to discover contraband, thereby increasing the chance to make arrests.
Third, and most important, hides can be constructed to not only conceal drugs but also firearms, explosives, and even people. Therefore, investigating hidden compartment cases contributes to officers' safety by educating them as to the existence and location of hides. Being aware of hidden compartments, how they function, and what they contain allows officers to operate more safely during what they may consider an otherwise routine traffic stop or other investigation.
Investigating and prosecuting hidden compartment cases can enhance officer safety, provide valuable intelligence, and lead to the seizure of evidence or illegal items. As such, police administrators should implement policy that incorporates these types of investigations into their agency's anticrime and antidrug efforts. In addition, prosecutors should analyze extant laws and develop legal strategies that can be employed to investigate and charge such cases. A successful investigation can greatly inhibit those criminal elements who use hidden compartments to further their criminal activity.
1 Clavo is the Spanish word for nail.
2 U.S. Department of Justice, Drug Enforcement Administration, Office of Forensic Sciences, "Common Vehicle Concealment Methods Used in the United States," Microgram, December 2003; available at http://www.justice.gov/dea/programs/forensicsci/microgram/mg1203/ mg1203.html (accessed August 2, 2010).
3 U.S. Department of Justice, Federal Bureau of Investigation, CJIS Division, The Off-Line Search, available at http://gcicweb.gbi.state.ga.us/cjis/ori/tacconf/TACConfRef/NCIC%20Offline%20Search-2005.pdf (accessed August 2, 2010).
4 21 U.S.C. § 863 (2010).
5 District of New Hampshire, 06-cr-218-JD (2007).
6 Compartment includes any box, container, space, enclosure, false or altered fuel tanks, or factory installed equipment that is modified or altered or any compartment added to or created from an existing space. The term vehicle is given the broadest possible meaning, including cars, trucks, buses, aircraft, boats, ships, yachts, and vessels. West's Ann. Cal. Health & Safety Code § 11366.8 (2009).
8 625 I.L.C.S. § 5/12-612 (2010).
9 People v. Carpenter, 888 N.E.2d 105 (Ill. 2008).
10 625 I.L.C.S. § 5/12-612 (2010). Similar to the California statute, the term vehicle is given the broadest possible meaning, while the definition of false compartment is limited to an enclosure integrated into a vehicle that is a modification of the original design of the manufacturer.
12 Ga. Code Ann. § 16-11-112(c). (2010).
13 U.C.A. 1953 § 76-10-2801 (2010).