It's always interesting to me how prosecutors keep coming up with different ways of charging people with crimes. About a decade or so ago, there must have been a seminar where they taught prosecutors a nifty new way of using the tampering with evidence statute, which prohibits a person from concealing or destroying any item "with purpose to impair its value or availability as evidence in such proceeding or investigation." All of a sudden, you had these cases popping up where your crackhead client saw the police approaching and with one of those decisions only a crackhead can make figured this was a good time to drop his crackpipe. And now, in addition to being charged with a felony five drug possession, he's charged with felony three tampering with evidence.
Up here, the prosecutors have the good grace to use it only to bludgeon a plea to the lesser charge, but apparently things don't work that way in Clark County. A couple of years ago, two detectives there stopped Amanda Straley's car after they saw it go left of center. They determined she was drunk, but didn't want to arrest her because they were in plain clothes and driving an unmarked car. They tried to find her a ride, and when that didn't pan out, decided to ask the supervisor if they could drive her home. At that point, Amanda said she had to use the restroom, then trotted off to the side of a building and squatted, announcing "I don't care if you arrest me, I have to pee," something I'm betting none of us have ever said. After she was done, one of the detectives walked over to where she'd been and found a cellophane bag on the ground covered in urine. Guess what was in the bag?
Straley pled out to possession of cocaine, but went to trial on the tampering charge the prosecutors had thrown in. She lost, but was rescued by the 2nd District, which reversed it on an insufficiency argument. See where the statute says that you have to commit the act with the purpose of impairing its availability as evidence "in such proceeding or investigation"? The 2nd held that this meant the concealed evidence had to pertain to the investigation, and since there was no investigation in process or likely as to cocaine possession, there was no tampering.
But the 2nd's decision ran flatly contrary to one four years earlier out of the 9th, State v. Sorvanek. While being stopped for a traffic violation, Skorvanek threw a pill bottle out of his window. He argued that his tampering conviction should be reversed because the pill bottle was unrelated to the investigation -- the traffic violation -- but the 9th wasn't buying: "This Court has never held that a defendant only commits the offense of tampering with evidence if he tampers with an item directly related to a police officer's purpose for investigating the defendant."
That, folks, is what we in the appellate biz call a conflict, so last Tuesday everybody got together for oral argument in the Ohio Supreme Court to see how to resolve it.
I thought the 9th had the better of the argument on how the statute should be interpreted, but the justices honed in on a different aspect: was there an investigation at all? O'Connor, Lanzinger, and O'Neill all expressed skepticism about State's position. Pfeifer didn't say anything, but I'm betting he's a solid vote for the defense. French and Kennedy are normally conservative votes, but so is O'Donnell. O'Donnell's one of the best questioners, and, much like Scalia on the High Court, will sometimes use his questioning to bolster the State's argument. If he made any attempt to do that on Tuesday, it was tepid at best.
Still, I'm not sure how a decision will come out, and I wouldn't be surprised if the case got dismissed for being improvidently allowed. There's enough of a factual distinction between the two cases to muddy things up, and it's not clear exactly what rule of law the court could come up with.
It's funny how you can get caught up in the legal arguments. When I first read the facts (they're fully detailed in the 2nd District's decision, it was abundantly clear to me that (a) Straley was trying to get rid of the cocaine so the police wouldn't find it, and (b) the detective went over there to check because that's exactly what he thought he might find. But then the statute requires a purposeful intent: did Straley toss the bag because she didn't want the detectives to find it, or did she toss it because she didn't like the idea of hanging around a police station with it on her. But wouldn't that be anticipation that the police might "investigate" her at the station?
I don't know, but here's what I do know: the application of this statute in this fashion is not what anybody anticipated. You want to pop the guy who tries to flush a half-pound of coke down a toilet as the SWAT team crashes in, or the guy who dummies up car titles, be my guest. But the War on Drugs is stupid enough as it is. We don't need to make a big deal out of a crackhead dropping their crackpipe.