I have been contacted by a DEA agent, in regards to a 'list' being prepared in D.C. This list has specific statutes, by state, which will assist them in an 'initiative' geared towards narcotics traffickers.

The question presented:

If there is a secret compartment in a vehicle, without money, drugs, or any other evidence indicative of narcotics trafficking, would Penal Code 16.01 be 'THE' means by which Texas would prosecute an individual?

16.01 Unlawful Use of a Criminal Instrument
(a) A person commits an offense if:
(1) he possesses a criminal instrument with intent to use it in the commission of an offense; or
(2) with knowledge of its character and with intent to use or aid or permit another to use in the commission of an offense, he manufactures, adapts, sells, installs, or sets up a criminal instrument.
(b) For the purpose of this section, "criminal instrument" means anything, the possession, manufacture, or sale of which is not otherwise an offense, that is specially designed, made, or adapted for use in the commission of an offense.

The statute fits, but is it the only statute that fits?

Has anyone ever charged a suspect under the above hypothetical under this code section?

Has anyone ever charged a suspect under the above hypothetical under a different code section?

All comments welcome, and if anybody feels they are an expert in the field of hidden compartment prosecution (read: volunteer), I will gladly put you in direct contact with said DEA agent.

I have used the criminal instrument statute to prosecute a person who had a hidden compartment several times. I have never had to try one to a jury, but I have gotten several guilty pleas.

A former attorney for DPS' Criminal Law Enforcement division whotaught Penal Code, etc. to the recruits at an interesting take on thei issue of what constitutes a "criminal instrument." He believed that the definition of "criminal instrument" was so narrow that relatively few things truly fit the definition of a "criminal instrument." One of his examples was the hidden compartment in a vehicle. He pointed out that he had one installed in an old MG that he drove because there was no secure place to store valuables in the car. In otherwords, the compartment was designed and installed for a non-criminal purpose and was not a criminal instrument per se. He told the recruits that many of the more technologically advanced hidden compartments are done by the same installer and therefore could be linked to that installer, known to be with a particular drug cartel. In that case, he believed it would be possible to prove that the hidden compartment was a criminal instrument because it had been installed specifically for a criminal purpose. Just his take on the issue.

Janette A

I do not see how, with nothing more, a compartment in a vehicle could be classified as a criminal instrument. And how do you define the term "hidden"?

That seems very vague and ambiguous; thus, liable to a constitutional challenge.

It seems so far that the only convictions under this scenerio have been guilty pleas, so they do not really count. What would happen if someone were to really fight this? I do not believe that a finding of guilt would stand. And w/ regards to the guilty pleas, I would imagine that at some point the defendant would file a writ claiming ineffective assistance of counsel based on the attny getting the guy to plea to something that is not really a crime.

It seems to me that the definiation of criminal instument is exactly what the Leg. says that it is: '"criminal instrument" means anything, the possession, manufacture, or sale of which is not otherwise an offense, that is specially designed, made, or adapted for use in the commission of an offense.'

It is the fact that it is SPECIFICALLY DESIGNED for use in the commission of a criminal offense. So if the item has other, legitimate uses, it is not a criminal instrument.

Sort of like the definiation of a "club" in the UCW statute. I carry a pretty big Mag Lite in my car. While it could be easily used to beat someone over the head with, it is not a club; thus, I can legally carry it on or about my person. The same with a baseball or T-ball bat. However, I cannot carry my old PR-24 from when I used to be a street cop as that is clearly a "club".

Prosecutions for criminal instrument based solely on the presence of a so-called "hidden compartment" are disingenuous and only set the system up for writ litigation or civil rights lawsuits in my humble opinion.

A defendant's admission of guilt, particularly when combined with a judicial confession, is a mighty reliable way to say that something is a crime.

So, you have a truck that is headed south on I-35. Officer stops the truck for a traffic offense, develops a suspicion that the truck and its driver is returning from a drug run north. Gets consent to search and finds a hidden (meaning not visible to the rest of us) compartment that would hold, say, 50 pounds of marihuana. Let's even say that the compartment has the odor of marihuana and the officer finds marihuana residue in it.

Defendant arrested for possession of a criminal instrument. How is the hidden compartment any different from a slim jim used to burglarize a car?

How is this all that different from Poss of Drug Paraphanalia, alot of which could be used for things other than smoking dope? Not sure that I've met anyone that uses a Bong for anything other than that reason, but I would imagine that it "could". I know it's a class C, but wouldn't it face the same arguments?

There is nothing illegal about having a hidden compartment in your vehicle. And there is no clear definition as to what, exactly, constitutes a hidden compartment. If you use JB's definition of hidden (as something not visible to the rest of us), what does that mean? There are lots of things in my car, truck, and boat that are not readily visible to the casual observer. Such a definition would be challenged as void for vagueness.

Many vehicles have compartments that are not readily visible or even easily found. Just ask any one who has just bought a new car. You have hidden cup holders that only slide out when you find the right button to push, hidden places to store your CDs, ect.

Now, obviously, if you find a "hidden" compartment that smells of dope or has residue, then I think you are on firmer ground. But absent anything like that, I don't see how you could secure a conviction that would stand up to appeal. To my reading, the law only allows for prosecution if the item was specifically made for criminal use. If the defendant made it for some other purpose, such as to secure personal belongs, ect., then there can be no crime.

Thank you all for your input thus far. But I'm going to try and simplify it a little...after I throw in some hypos that may seem more 'prosecutable' to some.

For the purpose of this question, let's assume very favorable facts in accord with my first post(no evidence of money, drugs, or related contraband)

hypo 1: tractor-trailer driven by owner has a compartment on the forward inside interior of the trailer, decreasing the visible storage space by 1 foot from floor to ceiling. Owner bought trailer new...and the hidden area is neither standard nor an option from the manufacturer.

hypo 2: unemployed individual has a mid-90's 4-door sedan. Tracing the wires back and experimenting reveals that
a)turning ignition back towards you while
b)foot on the brake and
c)lowering the passenger window will

** open a hydraulically operated storage area.
- Suspect's fingerprints are on a shiny hydraulic piece inside compartment.
- Narcotics department informs you this would cost about $4000.00 to install.

I think we all know each individual would come up with some excuse/defense as to why they have the compartment.
"my cousin had the trailer for a week back in '05...he must have put that there"

or maybe

"I don't want my wife to know I have a hankerin' for Boone's Farm, so I have to hide it..."

But my question isn't how wise it would be to charge someone under the Criminal Instrument statute (facts, discretion and what-not all in play).

My question is, if you have a compartment with nothing else, and you were DETERMINED (as I infer the Feds would be) to charge on the hidden compartment...

Is Criminal Instrument under PC 16.01 the ONLY way to go?

Thanks in advance.

Scott Peal
"lurking since 2003"

absent the smell of narcotics, residue or some hugely large sum of money, such as one might find in a dumpster outside of a Georgia Hooters restaurant, I would think prosecution, i.e. proving criminal intent, would be difficult.

Surely there are some rich folks or double-naught spies who have hidden compartments in their vehicles for valubles or secret agent supplies but no intent to violate the law.

And a friend wants me to ask where would one have a secret compartment installed that could fit a Mastertone Banjo...

I, I mean a friend of mine, has found that the banjo fits nicely in the same place that he hides his family when going to the drive in movie. But the banjo never complains about the sore back when he takes it out.