In tossing a woman’s conviction for introducing contraband during her jail booking, the Colorado Court of Appeals on Thursday indicated that simply possessing drugs is not sufficient grounds to charge an arriving inmate.

“[A] defendant whose entry into a detention facility is involuntary must either deny possession when asked or conceal or attempt to conceal the presence of contraband on his or her person,” wrote retired Judge Daniel M. Taubman, who sat on the three-member panel at the chief justice’s direction.

Police pulled over Stacy Anne McClintic for weaving between lanes. From her demeanor and her purse full of prescription pill bottles, an officer believed she was impaired or had a medical condition. McClintic admitted that she could not pass a sobriety test. Police then brought her to the Teller County jail.

Before booking McClintic, staff attempted to perform a strip search, to which she objected. She also stated that she was not giving up her marijuana. In the process, McClintic indicated she had chest pains and left for the hospital. Arriving back at the jail, the transporting officer asked whether McClintic had anything that he should know about, to which she apparently answered in the negative.

A prebooking officer asked her the same question prior to a second attempted strip search, and McClintic pulled out a plastic bag with marijuana. 

A jury convicted McClintic for driving under the influence, for a traffic-related misdemeanor, and for introducing contraband in the first degree into a detention facility, which is a felony. 

In appealing the latter conviction, the defense argued that McClintic did not voluntarily commit the act because she was in police custody when she brought the marijuana to the jail. Further, she twice told the prebooking officer that she had marijuana and surrendered it. The Court of Appeals agreed with her.

“Involuntary acts – acts not performed consciously and as a result of effort or determination – do not constitute criminal conduct,” wrote Taubman. The same principle applies, he continued, when a person acts under the duress of law enforcement.

The judges recognized that the contraband law was intended to control the presence of substances in jails and prisons. Prosecutors also argued that McClintic was uncooperative, initially told an officer that she did not want to relinquish her marijuana and neglected to inform the transport employee that she possessed the drugs.

Taubman rejected that narrative, believing that none of McClintic’s behavior amounted to concealment and that she never denied having marijuana on her.

A 2002 decision out of Oregon reached a similar conclusion as the court in McClintic’s case. In that instance, police arrested a man at his home and he did not admit to possessing the marijuana that was in his pocket. The Fifth Amendment, Oregon’s appellate court determined, prohibited law enforcement from forcing a person to choose between “admitting to possession of a controlled substance and being charged with introducing that substance into a correctional facility.” 

In a slightly different context, the California Court of Appeals decided in 2008 that a defendant could be charged for bringing a knife into the jail, despite telling the booking officer she had no weapons on her. “Respondent’s Fifth Amendment privilege permitted her to remain silent. It did not protect her from the consequences of lying to the booking officer,” the court wrote.

“There’s a massive difference between not saying anything and lying,” said Ian P. Farrell, an associate professor of criminal law at the University of Denver. He reiterated that while it is less material in some states whether the person being booked tries to conceal the contraband, the rulings on the subject affirm “the most fundamental principle in criminal law” that committing a crime requires doing something wrong willingly.

“Suppose I am on a crowded train and I have an epileptic seizure. As part of my epileptic seizure, my arm swings out and I hit somebody. I’m not guilty of assault because I wasn’t voluntarily choosing to do that,” Farrell said. “This is referred to as the voluntary act requirement of criminal law.”

The appellate judges in McClintic’s case found her “less blameworthy than the defendants in these out-of-state cases,” and settled on a standard of criminal conduct similar to California’s: a person in Colorado has to conceal or deny possession of contraband in order to be charged.

The panel vacated McClintic’s conviction for the contraband charge. The case is People v. McClintic.