court counsel my name's colleen morgan i'm from the office of the state appellate defender and i'm representing mr dini coleman the brief interruption in front of an officers with evidence is not concealment in this case stanley cup which was threatening to taser him officer roemer testified that she was only three to five feet behind mr coleman when she saw him pull to rob items from his front pocket no doubt mr combs knew the crack pipe and push robbed were illegal and so he tried to get rid of them even though officers were watching his every move both officers had a clear view of the pipe and rob officer lerner testified when i was pursuing mr combet on foot i observed him throw to rod like objects approximately five six inches in length over the fence that's immediately what i began searching for on the other side of the fence officer alone or if loughner found the pipe and pushrods within twenty seconds any comment his attempt to get rid of this  away the crack pipe was only briefly out of the officer sight obstructing justice must mean more than a defendant placing an object out of an officer sight for only a few seconds if not mr come which could have put the crack pipe back in his pocket and still have been charged with the separate and higher class felony of structuring justice and not just misdemeanor possession of drug paraphernalia is charged in this case the obstructing justice statute requires that the defendant conceal evidence the statute also defines obstruction of justice want to defend it destroys alters or disguises evidence this definition shows legislature's intent criminalize only those acts which may affirmatively interfere with the administration of justice here danny come in his act of momentarily removing a crack by from the officer site did not rise to not level counsel is it important to your definition of concealment that the officers observe something it's really important in this case because you're talking about did he hide something did he it couldn't be concealed when the officers were watching what he was doing they saw it so he really had no reasonable expectation that they would would not know where he put it it's kind of like when you do a shell game and a person has three shells he puts ball under one of them you know that the ball has been put under there but it might take you twenty seconds to pick which objects the balls never hidden because you know it's there but you may not be able to see it for a brief period of time and that's what happened here the officers knew exactly what mr cohen which was throwing to ride like objects they assumed it was contraband they knew it was going to be evidence probably they saw him pitch it over the fence they knew what area of the fence it fell on they took twenty seconds to go around the fence and take it so to say that that's concealed is really too broad of a definition they knew where it was they just had to pick it up it was only briefly out of their sight for a very few seconds would it make a difference of the women running across the golden gate bridge coast over to the water yes absolutely because i think in that case you're talking a defendant is destroyed evidence because if a body of water is still there it was meant it was well i would say where the officer is able to climb down off the bridge and floating on the top of the water where they can get it i'm thinking in that kind of scenario it's going to be impossible to retrieve the evidence that it's been they can't use it eventually in his prosecution here and they saw him throw it they knew where it went they were able to pick it up and diffidence was still able to be used in his prosecution when we think of obstructing justice we think that somebody has done something defendant has altered it so that it can't be used for prosecution or he's destroyed it so it can't be used for prosecution if you're just charging the defendant as in this case we think he's concealed deaths so that it can't be used later or with the intent that it can't be used then you have to look at all the circumstances of what the alleged concealment is and like in this case where the officers see that we're see that there is evidence see where the evidence goes and they're able to  retrieve it immediately that entire act has to go into is it concealed and well one of the cases i think one of the cases was the defendant was had his arm outside of a car and he was just throwing out the coke the powder from the bag and that's destroying it it's i mean the officers see it but he's destroyed the evidence in that case it's not really a matter of if he can seal it they don't have to conceal it in that case he's destroyed it he's committed obstruction of justice by concealing it now in some of the other cases from the other states also had and who had a bag of coke and he chucked the bag of drugs outside the window the bag being intact the cops were behind him saw him check a bag  of you know solid drugs and were able to pick that up they considered that not concealment it wasn't destroyed either in the defend it was not charged or prosecuted under for destroying evidence but they also found that wasn't concealment so i think we definitely have to make a distinction between destroying as as a different type of obstruction just of justice then the case like here where he's charged with concealing but doesn't in fact anything w think of conceal as being different and more of an affirmative act of same drugs bearing drugs outside of the presence of police would be concealing them whereas just chucking them you know as you're running is more abandonments something more that happens like in this case where he's running and he just tosses them he's he's ridding himself of them but there's no major act of that's done outside of the police that could reasonably conceal the drugs is less likely to recover part of the test i think it has to be considered definitely in any analysis but i don't think you even have to go that far if you say like in cases like these if you have a bright line rule that where evidence is only outside of the presence of an officer's sight with a matter of seconds it can't be concealed so whether or not i mean in that kind of case it's never there's guess on the probability that it will be discovered because it's only been outside of their vision for a few seconds and that presupposes that it's been found and not it's going to be recovered at a later point of the defendant in the presence in view of police officers that conduct doesn't constitute concealment and shouldn't simply support an obstruction of justice charge in that case the defendant climbed out onto a roof it was dark out the police knocked on to an on the door and with a search warrant the pull the defendant climbed out on to the roof an officer saw him shone a light on him and commanded him to stop but the defendant threw objects of the roof officer couldn't see what was in the defendant's hands but he saw the defendant making throwing motions after the officer arrested the defendant another officer who arrested the defendant the first officer looked in the direction where the bags have been thrown process of of prosecuting the defendant and if the officer sees what's going on the to finish can't be hiding anything from the person who needs to have the evidence so i think that's of paramount importance because it's the officer who has to be able to get the evidence and bring it in for the state you know to proceed in the prosecution so that if the officer sees the evidence and knows where it is and is easily able to get it back then it really hasn't interrupted his process at all it hasn't obstructed him from bringing the defendant to justice  so i guess when we look at this case we have to ask justice obstructed and here the answer is no mystery how much is act of throwing the crack pipe in the clear view of the police could not have logically or probably had the effect  interfering with this prosecution he knew the police were watching the police knew he was throwing contraband the officers retrieved the paraphernalia quickly and easily and the prosecutor introduced it at trial it took off three hundred twenty seconds to pick up the crack destroyed or it's been altered so it's a different aspect that could be i'm sorry i didn't watch it i'm simply moved moved if it's moved to the point where the state can all longer retrieve it then it's destroyed it's he's he's we look at concealment in terms of when it's unsuccessful has it only just been in the bushes for a few seconds or has it been over a fence for a few seconds i think you've got to look at that it's not being concealment more than saying if it's permanently taken out of the officer he'll by being actually hidden somewhere where he doesn't see or are destroyed so if you close it over the fence the largest behind something in the office introduce it at trial so it really hasn't up to obstructed his prosecution but this is a really factually based case and it's hard to apply this to every situation but in cases like this one where it's just such a minimal amount of time that it took the police to go around the corner and pick up this object they knew was there that they saw the defendant throw it doesn't seem like it could possibly rise to the level of obstruction of justice that we'd be seeing in cases like the one that you're suggesting where it's thrown in a body of water and it's just right or or it's it's made the state's job substantially more difficult here and there was really no delay that was twenty seconds that's about as long as it would have taken to pat him down and find the objects in his pocket  also may please the court assistant attorney general david simpson on behalf of the people of the state of illinois illinois obstructing justice statute makes it a crime to knowingly conceal evidence with the intent to obstruct one's on apprehension or prosecution the plain dictionary definition of conceal is true move something from site with the goal of making it harder to find and that definition applies to the defendant's conduct in this case running away from police and throwing evidence over a six foot high privacy fence there are no compelling policy reasons to depart from the plain meaning of the statute in this case and even if there were there would not be enough under this court's precedents to overcome the plain being at the statute as a result the defendant's conviction should be affirmed i'd like to start by addressing i think something that was implicit in some of the the court's earlier questions and and some of the some of my friends arguments is where's the what's the harm in this case and when when the evidence is recovered so quickly  and so there are two aspects of harm in this case and one is that there is the the threat to the truth seeking function of the justice system essentially what the defendant did here is he was running away from police officers he knew or i'm sorry he knew that if he were arrested that he would essentially certain that he would be found with evidence on him and so he took a gamble he took a gamble to run away from police officers and to try to dispose of that evidence now he ultimately lost that gamble but that doesn't mean he didn't commit a crime in the first instance if you compare it to perjury you can imagine a case where a witness lies on the stand testifies a trial perjures himself and says the defendant is guilty and then the verdict comes back innocent and that case there is the perjury has had no direct effect on the actual outcome of the fact finder but but if the witness there has still committed perjury it additionally there is an actual harm that we're looking at in this case there was the extra effort that the officers needed to expend to apprehend and secure the defendant and even though the evidence was found quickly the officers testified that they were forced to conduct a quote very in depth search of the area and that's time that the officers could have been using to to patrol the streets or complete other functions so this brings peace i think the second point i wanted to address is why this court should not apply a requirement that the evidence actually be made substantially more difficult to  recover or or or that the evidence actually be suppressed and the key argument here of course is there's just simply no such requirement in the statute and you could compare illinois obstructing justice statute to say delaware's and if you look at requirement that it actually in delaware that the the act actually results in the suppression of evidence and there's just simply no such requirement in illinois obstructing justice statute nor is there any such requirement that's implicit  in the dictionary definition of conceals so if you look at for instance black's law dictionary one of the synonyms for concealment is hiding when children play hide and go seek and they're found they don't play attempted hide and go seek your hidden you might be hidden well you might be hidden poorly and eventually you can be discovered but that doesn't mean you weren't getting in the first instance the second issue why the court shouldn't read this sort of requirement into the statute is it introduces a difficult line drawing problem that i think had come up and with some of the questions earlier is how much is substantially more difficult how much how how long does something have to be concealed before it qualifies as concealment under the statute  s as the united states supreme court recognized and in progun it's exceedingly strange to make whether something is a crime in the first instance hinge on somebody else's conduct but that's exactly what this sort of rule would do  the if the police were more competent and found out evidence quickly it would make it less likely that there was a crime if the police were less competent and it took them longer to find the evidence it would make it more likely that a crime had taken place  i don't think it has any impact your honor i agree it's strange at the at the first trial the defendant was convicted of two counts and acquitted on one there's no requirement in the in the obstructing justice statute that the evidence actually be sufficient to support a conviction and only requires that it be evidence that's concealed so i don't think it has any bearing on this case although i do admit that the first jury's verdict was a little bit strange i would like to point out though that as far as  argument that that there must be an actual actual struction justice actual suppression of evidence that's not in addition to being there being no such requirement of the statute that just doesn't mesh well with  earlier interpretations of of this obstructing justice statute so if you look at what the court did for instance in people vs alice where was interpreting the false statement portion of the of struct injustice statute it said there's no requirement there's no requirement  that the false statement actually be believed by the officers there's no requirement that the false statement actually result in the the in you know it in a in an a change in the outcome of the investigation the proceeding  and that it also followed the united states supreme court and grogan and a following some of that same logic that there's just simply there's there's it's very strange to make this sort of whether something is a crime in the first instance when john's somebody else's conduct particularly the police officers investigating conduct and again there's just no such specific requirement in the statute and have the general assembly wanted to have  requirement or a destruction requirement or a permanent leak unsealed requirement in the statute it certainly could have done so but chose not to do so third i would like to touch on something that justice thomas had mentioned earlier and bringing up was this attempted obstruction and i think the weight the way the way that i think we look at the act and i think the way that that the plain meaning of the act breaks down is that this isn't an attempt of concealment this is a completed act of concealment that was just done relatively poorly so what you have here is you have the completed elements of the crime and you have the completed you have a subjective intent to obstruct  an apprehension of prosecution and you have a physical act that remove something from sight in such a way as to make it less likely to be found that's not an attempt at concealment that is concealment it was just concealed poorly and it was discovered quickly because of the diligence of the officers but again that doesn't mean it wasn't concealment in the first place or that it wasn't a crime in the first instance and just as a comparison you can imagine what it because this comes up in the injustice hopes to central row what attempted obstructing justice might have looked like in this case as if the defendant had run away he had taken a crack pipe out of his pocket had reared back to throw it but before he had actually been able to release it he's tackled then it falls down to his feet now in those cases in that case you would have the same you'd have the same intent and you would have a physical x that's constitutes of substantial step towards the completion of the crime but you wouldn't have a completed crime because there would be no concealment there would be no removal from site with the goal of making something harder to find i would just before i sit down like to touch on one really quick thing as far as the distance  distance that the officers were behind the defendant when the defendant through the crack pipe he records just unclear on this point officer larner testified on page one hundred three that he was ten to fifteen feet behind the  and so i mentioned this both to just make clear that the record is confusing or unclear on this point but also because i think it highlights the difficulty that the court would or that the courts would have  administering a test that didn't have a clear line and in deciding whether something was substantially was substantially or in whether the state's case was impeded for them stand a substantial amount of time when you have a situation like this where adrenaline is flowing and people are running you're not going to get clear estimates of those clear sorts of facts that are going to allow the courts to engage in a fact specific analysis and then of course stepping back again to our primary point  there's simply no need to engage in that sort of detailed facts of the civic analysis regarding whether something was concealed person scansion amount of time or whether it made its recovery substantially less likely because again there's just no such requirement in the plain meaning of the statu much i'd like to address the fact that council advocates using a dictionary to definition to define conceal and i think that this court has look at the statute itself before it goes to the dictionary and when you look at the statute you going to see that it also prohibits altering concealing and disguising of evidence and when you consider those types of actions next to the word conceal adopting what counsel advocates as the really broad definition of just placing something out of sight i think you can see that that's that's going much too far to interpret conceal as being just something that easily accomplished placing something out of sight could be putting it behind your back and that's widely different then altering destroying or can this guy using evidence the context of the statute is important in the ultimate harm that the legislature is trying to deal with when drafting the obstruction of justice statute just by making something harder to find isn't isn't enough to constitute conceal also one we want to consider you know what was the harm here in that she was interrupting the truth seeking function of the justice system it doesn't have to be only addressed under obstruction of justice in that he concealed something the state had the option of charging him with resisting arrest in fact they did that but they dropped the charge there's also other ways i mean with a perjury statute the prosecution is limited to perjury but here there are other options mr coe much was charged with possessing  obstruction of justice that he somehow getting away with committing a crime it's not true he was properly charged and brought to trial on on another  offense here i mean there was twenty seconds we're talking twenty seconds that a piece of evidence was out of sight of the police officers that didn't rise to the level of destruction of justice it was only a brief interruption in officers and visual contact with the evidence it was not concealment so danny come which was not guilty of obstructing justice and we ask that you reverse this conviction thank you thank you