I'm sure we've all seen this--baggy of pot thrown out a car window during a traffic stop. Would you file felony tampering?
On one hand: we have seen cases where evidence is lost because tossed and the officers cannot find it, so this is behavior we obviously want to deter.
Other hand: the evidence tampered with is not evidence of the original investigation--the traffic stop.
A similar scenario with a twist: officers get a call about kids at a pool with pot. Before actually getting to them to talk, guy passes baggy to girl and officer can see that it is green leafy substance. Is guy guilty of tampering--he sees the officers coming but probably didn't know that a complaint had been made.
Yes and yes. Both are tampering. I think the individual throwing out the window knows that it will soon become the subject of the investigation, or, has contemporaneously become the focus.
Passing off to the other teenager is likewise trying to hide it from discovery.
The issue is what you do with the case. I prosecuted for years in a county that included I-10 headed out of Houston. Saw tons of cases with dope thrown out the window as police pulled someone over for speeding or whatever. The punishment rec depends on the criminal history, the attitude of the defendant, and what he was throwing out the window. A college student with a quarter ounce of MJ tossed out the window gets different treatment than a convicted felon who runs and buries a kilo of cocaine in the mud of a nearby bayou. Yes, I've handled both, with clearly different outcomes.
Disclaimer: I am not a lawyer. The following is offered for entertainment purposes only.
There was a line of cases supporting this defense argument was pretty much shot down by Williams v. State, 270 S.W.3d 140, (Tex.Crim.App.,2008.) In Williams the court seems to say that the language of the statute does not support a requirement that the evidence be connected to the original investigation.
The scenario with the kids at the pool is tricky because you'd have to prove the guy passing the pot was intentionally concealing it from the officer... that he was not passing it for other reasons. Maybe he was selling it, delivering it, or sharing it. Maybe he was just examining it and just happened to be handing it back to its owner as the officer approached? Another strike against "concealing" is that the pot was surely not concealed if the officer was able to see it and determine its nature as a green leafy substance.
The Court of Criminal Appeals might say:
"It is not enough that [the boy at pool] knew that his action would impair the availability of the marihuana as evidence. He must have intended to impair its availability. That is, impairing the marihuana's availability as evidence must have been [the boy at pool's] conscious objective or desire." Paraphrased from Stewart v. State, 240 S.W.3d 872, (Tex.Crim.App.,2007)
This makes sense to me. If you take it too far the other way then couldn't someone say that SMOKING pot is a pretty effective way to DESTROY pot? Charging someone with tampering because they smoked the pot would be silly because the intent of smoking pot is intoxication not destruction of evidence.
If two kids are sitting together at the pool and one of them has a bag of pot in plain view isn't that evidence that both were in possession in the sense of care, custody and control? If yes then it seems that passing it between each other wouldn't be a particularly useful method of concealing it.
I guess the statute does presume that whatever efforts to conceal evidence must have at least partially failed because a perfectly successful concealment would have gone perfectly unnoticed and thereby NOT be charged under this statute.
In light of William v State, 270 SW3d 140 (2008), should we drop the "...knowing that an investigation was pending, to-wit:_________" (the fill in the blank part) out of our indictments?
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