Conflict resolution
The nice thing about the Supreme Court resolving a split between the district courts is that it's very clear who won and who lost.
In last week's decision in State v. Straley, the prosecution lost.
Here's the conflict. Back in 2005, the police decided to stop a vehicle because it had made an improper left-hand turn. (If I'd been writing this blog back then, it would probably have qualified for the Bullshit Traffic Stop of the Week™.) As the cops followed him, they saw him throw something out of the car. After they stopped him, one of the officers went back and looked for the object which had been thrown, and to no one's real surprise, it was a pill bottle which contained heroin and some other goodies.
The driver, Skorvanek (the opinion doesn't even give his first name), was charged with drug possession, of course, with a count of tampering with evidence thrown in for good measure. That was a big deal; the drug charges were all fifth degree felonies, but the tampering charge was a third degree felony, and Skorvanek was convicted and sentenced to two years in prison.
He appealed to the 9th District in State v. Skorvanek, claiming that evidence wasn't sufficient to convict him of tampering. Time out to take a look at the statute. It provides that
"no person, knowing that an official proceeding or investigation is in progress, or is about to be or likely to be instituted, shall alter, destroy, conceal, or remove any thing, with purpose to impair its value or availability as evidence in such proceeding or investigation."
Skorvanek's argument focused on the word "such." According to him, his tossing the stuff out of the window didn't impair its availability for use in a drug investigation, because he was being investigated for making an illegal turn, not for possessing drugs.
The 9th District wasn't buying, noting that "an investigation may quickly proceed beyond its initial purpose," and that "this court has never held that a defendant commits the offense of tampering with evidence only if he tampers with an item directly related to a police officer's purpose for investigating the defendant."
Well, the 2nd District had held just that a few times, and did it again a couple of years ago. Two Clark County detectives stopped Amanda Straley's car after they saw it go left of center. She was drunk, but they didn't want to arrest her, because they were in plain clothes and driving an unmarked car, so instead they decided to drive her home. At that point, Amanda said that she had to urinate, and over the detective's objections trotted off to the side of a building and squatted, announcing, "I don't care if you arrest me, I have to pee." Not likely to take its place among Watchwords of Liberty like "I have not yet begun to fight," but we live in less heroic times. 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? Guess what I would do if I had a job which required me to handle urine-covered bags to determine their contents?
At any rate, Straley too was convicted of tampering with evidence, but the 2nd District took a decidedly different tack. The court contemplated all the possible investigations that might have ensued from Amanda's activities that night -- drunk driving, public indecency, disorderly conduct -- and correctly concluded that "the contraband Straley dropped had no use or value as 'evidence' in an investigation of these offenses. And last week, the Ohio Supreme Court adopted essentially the same reasoning in a 6-1 decision. (O'Donnell dissented and would have dismissed the case as having been improvidently accepted.)
As a matter of statutory interpretation, the court's right: when Amanda Straley dropped the bag of cocaine, she didn't do so "knowing" that an investigation for her for drug possession was "likely." That's why I'm a little concerned, because with a little legislative rework, the statute could be applied to conduct like Straley's.
I don't think that will happen, though. When the legislature was drafting this law to begin with, I'm pretty sure nobody contemplated that it would be used to pin a third degree felony on some crackhead because he dropped his pipe when he got out of the car. Or to use it as leverage to force a plea. With the legislature focused on cutting prison costs, I don't see a proposal like this making any headway.
And Straley certainly puts the kibosh to the prosecution's tactic. Remember what I said about resolving conflicts? Straley doesn't just stand for the proposition that what Amanda Straley did didn't constitute tampering, it also stands for the proposition that the court in Skorvanek was wrong, and that what Skorvanek did didn't constitute tampering, either.
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