Earlier this year, a state appellate court issued an opinion in a New York marijuana possession case involving the question of whether the defendant could legally be convicted of tampering with evidence after he threw a bag of marijuana to the ground while being chased by police. The court determined that the defendant’s conduct did not meet the necessary elements of tampering with physical evidence, noting that the proper charge was the lesser offense of attempted tampering with physical evidence.
According to the court’s opinion, police officers were conducting surveillance out in front of a store after there were recent reports of people drinking and selling drugs outside the store. The undercover police officers observed the defendant leave the store while drinking from a bottle that was wrapped in a brown paper bag. Thinking that the defendant was violating the state’s open-container laws, the officers gave the defendant’s description to backup officers, instructing them to stop the defendant.
As the backup officers tried to stop the defendant, the defendant dropped the brown paper bag to the ground and ran. The bottle broke as it hit the ground. A backup officer started to chase the defendant, and noticed that the defendant threw a baggie that was later determined to contain marijuana. After his arrest, the defendant punched the officer in the face. The defendant was charged with various crimes, including assault, possession of marijuana, and tampering with physical evidence. The prosecution argued that by throwing the baggie of marijuana, the defendant tampered with evidence.
After the defendant’s motion to suppress physical evidence was denied, he proceeded to a jury trial, where he was found guilty. The defendant appealed on several grounds. One of the defendant’s appellate issues was that he should not have been convicted of tampering with physical evidence. The defendant argued that he never actually concealed the baggie, only discarded it.
The court agreed with the defendant’s position, holding that “the defendant’s act of discarding the bag did not constitute an act of concealment.” The court noted that to prove a tampering-with-the-evidence charge, the prosecution must show that the defendant concealed, destroyed, or altered physical evidence. Here, that was not the case. However, the court went on to explain that because the defendant “engaged in conduct that tends to affect, and comes dangerously near to accomplishing, an act of concealment intended to suppress the physical evidence,” the proper charge would have been attempt to tamper with physical evidence.
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