dissenting, in wMch FOX, J., joins.
'[¶30] I agree with the majority opinion’s conclusions about the definition of “jail.” I recognize that the majority opmion on the voluntariness of “taking” by someone who is arrested and involuntarily taken to jail adopts a position adopted by most states that have addressed the issue. However, I find the minority position more - persuasive,-', and more consistent with -the logical meaning of “taking” as that term is used in Wyo. Stat. Ann, § 6-5-208 (LexisNexis 2017). Accordingly, I respectfully dissent.
[¶31] Section 6-5-208 is plain in its language. TMs statute simply states that a person is guilty of a felony “if that person takes or passes any controlled substance ... into a jail ....” Because this,statute does not require any specific intent on the part of .the actor, it is a general intent crime. However,“even a general intent crime requires a showing that the proMbited conduct was undertaken voluntarily.” Rowe v. State, 974 P.2d 937, 939 (Wyo. 1999) (citing Crozier v. State, 723 P.2d 42, 52 (Wyo.1986)). An act is voluntary if the actor intended to do it (as opposed to an event occurring accidentally or involuntarily). ‘When the statute .sets out the offense with only a description of the particular unlawful act, without reference to intent to do a. further aet or acMeve a future consequence, the trial judge asks the jury whether the defendant intended to do the outlawed act.” Reilly v. State, 2002 WY 156, ¶ 8, 55 P.3d 1259, 1262 (Wyo. 2002) (quoting Dorador v. State, 573 P.2d 839, 843 (Wyo. 1978)).
[¶32] In this case, the State accused Mr, Barrera of voluntarily t taking a controlled substance into a jail. To prove Mr, Barrera guilty, the State had to prove Mr. Barrera voluntarily took the controlled substances into the jail—that he intended to do so. The evidence showed only that Mr. Barrera intended to possess the controlled substance by placing it in his coin pocket. It did not show he voluntarily took it into the jail, or that he ever had such intent.
[¶33] An act may be voluntary if the actor has a choice to not commit the act, but declines that choice and goes ahead with the act. The State argues that -the officers gave Mr. Barrera-a choice to not “take” the controlled substance into the jail when they advised him .on several occasions that “he would be strip searched at the jail and that it would be a felony if-he was concealing any narcotics on Ms person and if he took it into the jail.” The option the officers gave Mr. Barrera was to confess to possession (assuming he remembered that he had the small amount of controlled substance in his coin- pocket). In fact, they required Mm to confess or face a felony charge. Mr. Barrera’s response did not indicate that he intended to take controlled substances into the jail. Rather, it only indicated, he either was unaware of the controlled substance or he wished to avoid self-incrimination.
[¶84] The officers did not give Mr. Barrera the option of not answering them. They did not ask if he wished -to waive his privilege against self-incrimihation, They did not tell Mm that they would search Mm at the jail and if he was found m possession of a controlled substance he would be charged with that crime. Instead, they threatened Mm with a more substantial crime—a felony—if he did not confess to possession. The officers essentially required Mr. Barrera to confess.
[¶35] One of the most fundamental elements of American liberty is the protection of citizens from compulsory confession to crimes. The Fifth Amendment to the United States Constitution is well-known: “No person ... shall be compelled in any criminal case to be a witness against himself.” Article 1, Section 11 of the Wyoming Constitution reiterates the principle: “no person shall be compelled to testify against himself in any criminal case.” Historically, our Court has jealously guarded the right against any infringement. Tortolito v. State, 901 P.2d 387, 389 (Wyo. 1995), quoting Clenin v. State, 573 P.2d 844, 846 (Wyo. 1978).
“[The privilege against self incrimination] reflects many of our fundamental values and most noble aspirations: our unwillingness to subject those suspected of crime to the cruel trilemma of self-accusation, perjury or contempt; ... our sense of fan-play which dictates “a fair state-individual balance by requiring the government to leave the individual alone until good cause is shown for disturbing him and by requiring the government in its contest with the individual to shoulder the entire load” ... [and] our respect for the. inviolability of the human personality and of the right of each individual “to a private enclave where he may lead a private life”....”
United States v. Gecas, 120 F.3d 1419, 1460 (11th Cir. 1997); citing Murphy v. Waterfront Comm’n, 378 U.S. 52, 79, 84 S.Ct. 1594, 1609, 12 L.Ed.2d 678 (1964).
[¶36] Former Justice Fortas eloquently described the cardinal importance of this right in protecting individual liberty:
“The fundamental value that the privilege reflects is intangible, it is true; but'so is liberty, and so is man’s immortal soul. A man may be punished, even put to death, by the state; but ... he should not be made to prostrate himself before its majesty. Mea culpa belongs to a man- and his God. It is a plea that cannot be exacted from free men by human authority. To require it is to insist that the state is the superior of the individuals who compose it, instead of them instrument.”
Gecas, 120 F.3d at 1459, citing, Abe Fortas, The Fifth Amendment: Nemo Tenetur Prodere Seipsum, Cleveland Bar Association, The Journal, XXV, Apr. 1954, at 91, 99-100.
[¶37] I disagree with the State’s position that it is acceptable for officers to require a defendant to confess to possession in order to avoid facing felony charges. Mr. Barrera did not have a valid option to not have the controlled substance in his possession when he was taken into the jail. The questions posed by the officers did not constitute a valid option for Mr. Barrera which indicated he voluntarily was taking controlled substances into the jail.
[¶38] The approach advanced by the State here not only interferes with the privilege against self-incrimination, it encourages officers to incarcerate individuals who are arrested for the most minor of crimes, in the hopes that a further search produces evidence of a felony. If the State can require anyone taken into a county jail to confess to possession or face a felony charge, officers have incentive to take everyone to jail.
[¶39] The purpose of § 6-5-208 is obvious. The legislature seeks to keep controlled substances out of jails where they might be used by inmates or others. Persons who take substances into jails, then, are subjected to felony sanctions. The actions of Mr. Barrera, however, had no connection to that legislative purpose. There was no possibility that Mr. Barrera’s controlled substance would accompany him into the jail as an inmate. In fact, there was no possibility that Mr. Barrera’s controlled substance would not be found by law enforcement, as they conducted the “strip search.” The conclusion that Mr. Barrera “took” a controlled substance into a jail does not fit the obvious intent of this legislation. ■
[¶40] There may be situations where an individual going into jail involuntarily nevertheless has voluntarily taken controlled substances there. The majority opinion provides the example of an inmate on work release who voluntarily chooses to bring controlled substances with him into the jail upon his return from work. Perhaps someone might know they are going to be arrested, and conceal controlled substances in a manner indicating they hoped to somehow get-them into the jail. Such circumstances could support a conclusion that the actor chose, or was acting voluntarily, in talcing the controlled substances into a jail. Those are not the facts of Mr. Barrera’s case.
[¶41] Under the facts of this case, I conclude that Mr. Barrera did not voluntarily take controlled substances into the jail.