DRUG ENFORCEMENT OFFICERS GAIN A NEW TOOL:

UTAH’S HIDDEN COMPARTMENT STATUTE

            On March 18, 2008, the Governor signed House Bill 30, Vehicle Concealing Illegal Items, into law.  The new statute, codified at Utah Code Ann. § 76-10-2801, went into effect on May 4, 2008, and can be found at http://le.utah.gov/~code/TITLE76/htm/76_10_280100.htm  Now, when officers find a vehicle with an empty hidden compartment they will no longer have to release the vehicle back to the driver.  Instead, an officer may arrest the driver and impound the vehicle when they have evidence that the hidden compartment has been used to conceal contraband.

            The new statute makes it a class A misdemeanor to “knowingly possess, use, or control a vehicle which has a compartment with the intent to store, conceal, or transport contraband in the compartment.” U.C.A. § 76-10-2801(2).  The statute applies to all motor vehicles as well as semitrailers, and trailers. U.C.A. § 76-10-2801(1)(f).  The term “compartment" is defined in the statute as “any box, container, space, or enclosure that is intended or designed to conceal, hide, or otherwise prevent the discovery of contraband” that is “within a vehicle or attached to a vehicle.” U.C.A. § 76-10-2801(1)(a)(I).  Thus the term “compartment” has been defined broadly to include:

            (A)  false, altered, or modified fuel tanks;

            (B)  original factory equipment of a vehicle that is modified, altered, or changed to accommodate or contain contraband; and

            (C)  a box, container, space, or enclosure that is fabricated, made, created from, or added to the existing structure of a vehicle. U.C.A. § 76-10-2801(1)(a)(ii).

            The key to distinguishing between innocent and incriminating behavior under the statute is to determine whether the suspect intended to conceal contraband in the compartment.  "Contraband" is defined as “any property, item, or substance which is unlawful to produce or possess under state or federal law and includes cash or monetary instruments that are the proceeds of unlawful activity.” U.C.A. § 76-10-2801(1)(b).  The statute also contains an inference by which the trier of fact may infer that a person intended to store, conceal, or transport contraband if there is evidence that the compartment previously contained contraband. U.C.A. § 76-10-2801(4).

            The new statute also makes it a third degree felony to facilitate the storage, concealment, or transportation of contraband by:

            (a)  designing, constructing, building, altering, or fabricating a compartment for a vehicle;

            (b)  installing or creating a compartment in a vehicle; or

            (c)  attaching a compartment to a vehicle. U.C.A. § 76-10-2801(3). 

In addition, House Bill 30 amended Utah’s racketeering statute, Utah Code Ann. § 76-10-1602, to add a violation of the hidden compartment statute to the list of predicate offenses.  Therefore those individuals who are repeatedly found in possession of a hidden compartment may be prosecuted with a felony.  Similarly, those companies who aid the distribution of drugs by manufacturing and installing hidden compartments in vehicles may be prosecuted for both racketeering and money laundering.

            This statute not only provides law enforcement with a valuable prosecution tool, but also a valuable forfeiture tool.  Utah Code Ann. § 58-37-13(2)(e) provides for the forfeiture of all conveyances including aircraft, vehicles, or vessels used or intended to be used to facilitate the distribution or possession with intent to distribute controlled substances.  Similarly Utah Code Ann. § 76-10-1908 provides for the forfeiture of any conveyance including vehicles, aircraft, watercraft, or other vessels used to transport the proceeds of unlawful activity.  As a result, officers can forfeit vehicles containing hidden compartments that are used to facilitate drug activity by following the procedures in The Utah Uniform Forfeiture Procedures Act (the Act), found at Utah Code Ann. Title 24.  For more information about the requirements of the Act as well as sample forms that can be used in the process, visit the UNOA website at: http://www.unoa.org/id45.html.

            Once a judgment of forfeiture on a vehicle is issued by the court, the seizing agency is required to conduct a “public or otherwise commercially reasonable sale” of the vehicle. U.C.A. § 24-1-17(3)(a).  An agency who has forfeited a vehicle with a hidden compartment should take measures to remove or otherwise disengage the hidden compartment before sending the vehicle to sell at public auction.  The agency may then deduct the direct costs and expenses of “obtaining and maintaining the vehicle pending the forfeiture” and “pay the legal costs to the prosecuting agency for the prosecution of the forfeiture proceeding.” U.C.A. § 24-1-17(4).  The rest of the proceeds from the sale of the vehicle are then sent to the Criminal Forfeiture Restricted Account at the Utah Commission on Crime and Juvenile Justice. U.C.A. § 24-1-17(5).

            If the value of the vehicle is such that it would cost more to remove the hidden compartment than the vehicle is worth, an agency may decide to destroy the vehicle.  Utah Code Ann. § 24-1-17(3)(a) provides for the sale of property only if “it is not required by law to be destroyed and is not harmful to the public.”  If an agency fails to secure a judgment of forfeiture on a vehicle and is required to turn the vehicle back to the owner, the agency should still remove the hidden compartment.  The agency may then seek those costs from the owner if the owner was engaged in the criminal activity that gave rise to the seizure of the vehicle.

            For questions about the new statute or asset forfeiture, contact Assistant Utah Attorney General, Lana Taylor at lataylor@utah.gov.