Wednesday, March 16, 2011

Is Contraband "Concealed" When Officers Know Where It is and Can Easily Obtain It?

The Illinois Supreme Court, in People v. Comage, No. 109495, slip op. (February 25, 2011), was asked to decide "whether certain physical evidence was 'concealed' within the meaning of Illinois' obstructing justice statute when police officers knew where the evidence was and had no difficulty recovering it, but the evidence was out of the officers' sight for approximately 20 seconds." Id. at 1.

In Comage, an officer was investigating a theft at a gas station when he spotted a subject who matched a description of the thief in a McDonald's parking lot. Id. at 2. The man ran from the McDonald's parking lot to a Pizza Hut parking lot, where the officer stopped the man and performed a warrant check. Id. at 2-3. Meanwhile, defendant was "jumping around, fidgeting, and at one point, threatening to urinate on the squad car." Id. As the dispatcher was reporting the results of the warrant check, the defendant "took off running through the parking lot, where "both officers saw defendant reach into his pocket, pull out two rod-like objects that were five to six inches in length, and throw them over a six-foot-tall, wooden privacy fence that abutted the Pizza Hut parking lot." Comage, No. 109495, slip op. at 3. Defendant stopped running after an officer threatened to use her taser on him. See id. One of the officers "testified that he clearly saw defendant toss items over the fence and that the items were within 10 feet of where defendant was apprehended" and that "he located the items "'twenty seconds' after he went to look for them" by "walk[ing] around to the other side of the fence to recover the objects defendant had thrown." Id.

Defendant was charged with possession of drug paraphernalia, resisting a peace officer, and obstruction of justice under 720 ILCS 5/31-4(a), with the State alleging that he "with the intent to obstruct prosecution of himself for possessing drug paraphernalia, knowingly concealed physical evidence, in that he thew a metal pipe and push-rod over a wooden privacy fence and out of view while being pursued by police." Id. at 2. Defendant was found not guilty of possession of drug paraphernalia but was found guilty of resisting arrest and obstructing justice. Defendant moved for a new trial, which was granted. See id. The State dismissed the resisting arrest charge, but the defendant was again convicted of obstructing justice. Comage, No. 109495, slip op. at 2-3.

The defendant appealed his conviction on the obstructing justice count. See id. at 3. "A person obstructs justice when, with intent to prevent the apprehension or obstruct the prosecution or defense of any person, he knowingly commits any of the following act: (a) Destroys, alters, conceals, or disguises physical evidence, plants false evidence, furnishes false information[.]" 720 ILCS 5/31-4(a) (West 2006) (emphasis added). On appeal, defendant argued that "the State failed him to prove him guilty beyond a reasonable doubt because the items at issue where never concealed within the meaning of the obstructing justice statute." Id. The issue before the court was whether defendant "concealed" the crack pipe and push rod by throwing it over the fence. See id. at 4. To define "concealed," the court looked to the plain meaning of the word, defined by Webster's as both "to prevent disclosure or recognition of : draw attention from : treat so as to be unnoticed" and "to place out of sight : withdraw from being observed ; shield from vision or notice." Id. at 4 (citing Webster's). Defendant argued that he did not conceal the paraphernalia because he "did not 'withhold knowledge' of the crack pipe and push rod from the police officers." Comage, No. 109495, slip op. at 5. The State, however, argued that the "'word 'conceals' merely conveys that something has been hidden, not that something will remain hidden forever.' Thus…defendant concealed the crack pipe and push rod…" Id.

The court held that the defendant's act of throwing the evidence over a fence into an area that was easily accessible to officers did not constitute "concealment" of the evidence. See id. at 10. The court disagreed with the State's argument, noting that "To construe the word 'conceal' as the State suggests would mean that essentially every possessory offense where the contraband is not in plain view would also constitute the felony offense of obstructing justice." Id. at 8. The court indicated that in order for the evidence to be concealed, it must be a situation where "the defendant actually interferes with the administration of justice, i.e., materially impedes the police officers' investigation." See id. at 9. The court reasoned that "Although the items were briefly out of the officers' sight, defendant did not materially impede the officers' investigation. Accordingly, defendant did not 'conceal' the crack pipe and push rod within the meaning of the obstructing justice statute." Comage, No. 109495, slip op. at 10.

Whether a defendant "conceals" evidence is going to be fact specific. Key to the court's reasoning here was that 1) the officers saw defendant throw the pipe over the fence (so they knew where it was) and 2) the officers could access it (so they knew how to get to it). If the officer 1) knows where the evidence is and 2) knows how to get to it, then he can obtain the evidence and his investigation has not been impeded. The outcome would have been different if, during the chase, defendant was several hundred yards ahead of the officers and out of view and the defendant threw the pipe into a fast-moving river. Then the officer would not know where the evidence was and would not be able to access it. Under these facts, the defendant would probably be found guilty of concealing the evidence under the obstructing justice statute.

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