People v. Comage ( 2011 )

Docket No. 109495.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
DANNY COMAGE, Appellant.
Opinion filed February 25, 2011.
JUSTICE BURKE delivered the judgment of the court, with
opinion.
Chief Justice Kilbride and Justice Theis concurred in the
judgment and opinion.
Justice Freeman specially concurred, with opinion.
Justice Thomas dissented, with opinion, joined by Justices
Garman and Karmeier.
OPINION
In this case, we must determine whether certain physical evidence
was “concealed” within the meaning of Illinois’ obstructing justice
statute when police officers knew where the evidence was and had no
difficulty recovering it, but the evidence was out of the officers’ sight
for approximately 20 seconds. The appellate court concluded that the
evidence was concealed and, on that basis, affirmed the defendant’s
conviction for obstructing justice. 395 Ill. App. 3d 560. For the
reasons that follow, we reverse the judgment of the appellate court.
Background
In March 2007, the State charged the defendant, Danny Comage,
with obstructing justice (720 ILCS 5/31–4(a) (West 2006)), alleging
that defendant, “with the intent to obstruct the prosecution of himself
for possessing drug paraphernalia, knowingly concealed physical
evidence, in that he threw a metal pipe and push-rod[1] over a wooden
privacy fence and out of view while being pursued by police.” The
State also charged defendant with unlawful possession of drug
paraphernalia (720 ILCS 600/3.5 (West 2006)) and resisting a peace
officer (720 ILCS 5/31–1 (West 2006)).
In July 2007, a jury in the circuit court of Macon County
convicted defendant of obstructing justice and resisting a peace
officer but found him not guilty of possession of drug paraphernalia.
Defendant subsequently filed a motion for judgment notwithstanding
the verdict or, alternatively, for a new trial. Defendant contended,
inter alia, that one of the State’s witnesses made reference to
defendant having invoked his right to remain silent during police
questioning in violation of Doyle v. Ohio, 426 U.S. 610 (1976). The
trial court granted defendant’s motion for a new trial. Thereafter, the
trial court dismissed the unlawful possession count on double
jeopardy grounds and the State then voluntarily dismissed the charge
for resisting arrest.
A second jury trial commenced in February 2008 on the
remaining charge of obstructing justice. Officers Chad Larner and
Kathleen Romer, both of the Decatur police department, testified on
behalf of the State. On the night of March 19, 2007, shortly before
10:50 p.m., Larner was investigating a theft at a gas station in the 900
block of West Eldorado Street in Decatur. Larner began looking for
the suspect, who had been described as a clean-shaven, thinly built,
black man who was wearing “nice casual clothes.” While patrolling
the area, Larner observed a man who matched the suspect’s
description in the parking lot of a McDonald’s restaurant. The man
ran south from the parking lot, across Eldorado Street, and into the
parking lot of a Pizza Hut restaurant. Larner stopped the man, advised
him of the purpose for the stop, and asked for identification. The man
1
A “push-rod” is a tool used to clean and pack drugs into crack pipes.
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identified himself as defendant.
As Larner was conducting a warrant check on defendant, Officer
Kathleen Romer arrived. While the officers were talking to defendant,
Romer noticed that defendant began to act strangely: jumping around,
fidgeting, and at one point, threatening to urinate on the squad car. As
the dispatcher radioed back information about defendant to the
officers, defendant took off running through the parking lot. The two
officers chased defendant for 20 to 30 yards before he finally stopped.
During the chase, both officers saw defendant reach into his
pocket, pull out two rod-like objects that were five to six inches in
length, and throw them over a six-foot-tall, wooden privacy fence that
abutted the Pizza Hut parking lot. The officers were a short distance
behind defendant when he threw the objects. Larner stated that the
area was “well-lit with artificial lighting” and that he had a “clear
observation” of defendant as they were running. Defendant stopped
10 to 15 feet after throwing the objects when Romer threatened to use
her Taser.
After securing defendant, Larner walked around to the other side
of the fence to recover the objects defendant had thrown. Larner
found a crack cocaine pipe and a push rod in a parking lot on the
other side of the fence. At trial, Larner testified that he clearly saw
defendant toss the items over the fence and that the items were within
10 feet of where defendant was apprehended. Larner further stated
that he located the items “twenty seconds” after he went to look for
them. The jury found defendant guilty.
Defendant filed a motion for judgment notwithstanding the
verdict or, in the alternative, for a new trial. Citing In re M.F., 315 Ill.
App. 3d 641 (2000), defendant contended he had not concealed
evidence because the officers in this case observed him toss the crack
pipe and push rod over the fence and knew where the items were, and
the officers promptly retrieved the items with no difficulty. The trial
court denied defendant’s motion. Defendant was then sentenced to
three years’ imprisonment.
Defendant appealed, arguing that the State failed to prove him
guilty beyond a reasonable doubt because the items at issue were
never concealed within the meaning of the obstructing justice statute.
The appellate court, with one justice dissenting, affirmed. 295 Ill.
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App. 3d 560. We allowed defendant’s petition for leave to appeal. Ill.
S. Ct. R. 315 (eff. Feb. 26, 2010).
Analysis
Illinois’ obstructing justice statute, section 31–4 of the Criminal
Code of 1961, provides:
“A person obstructs justice when, with intent to prevent
the apprehension or obstruct the prosecution or defense of any
person, he knowingly commits any of the following acts:
(a) Destroys, alters, conceals or disguises physical
evidence, plants false evidence, furnishes false
information[.]” 720 ILCS 5/31–4(a) (West 2006).
As he did in the appellate court, defendant contends that the State
failed to prove him guilty beyond a reasonable doubt of obstructing
justice because he never concealed the crack pipe and push rod. To
address this argument we must first determine the meaning of the
word “conceal” as it is used in the obstructing justice statute.
The cardinal rule of statutory construction is to ascertain and give
effect to the legislature’s intent. Abruzzo v. City of Park Ridge, 231
Ill. 2d 324, 332 (2008). The legislature’s intent is best indicated by
giving the statutory language its plain and ordinary meaning. Id. To
determine the plain meaning, we must consider the statute in its
entirety and be mindful of the subject it addresses. Orlak v. Loyola
University Health System, 228 Ill. 2d 1, 8 (2007). Our review on this
issue is de novo. Abruzzo, 231 Ill. 2d at 332.
The obstructing justice statute does not define the word
“conceal.” When a statutory term is undefined, it is appropriate to
employ a dictionary definition to ascertain its meaning. See Landis v.
Marc Realty, L.L.C., 235 Ill. 2d 1, 11 (2009). The obstructing justice
statute was adopted in 1961. See 1961 Ill. Laws 1983, 2039 §31–4
(eff. Jan. 1, 1962). Webster’s dictionary from that time contains two
definitions of the word “conceal.” The first definition states: “1 : to
prevent disclosure or recognition of : avoid revelation of : refrain
from revealing : withhold knowledge of : draw attention from : treat
so as to be unnoticed ***.” Webster’s Third New International
Dictionary 469 (1961). The second definition states: “2 : to place out
of sight : withdraw from being observed : shield from vision or notice
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***.” Id.
Before this court, defendant relies primarily on the first definition
of the word “conceal.” Defendant contends he did not “withhold
knowledge” of the crack pipe and push rod from the police officers.
To the contrary, defendant emphasizes that he was in full view of the
police officers at all times and that “[t]he officers were in no doubt
that [defendant] had thrown contraband–or where.” Thus, in
defendant’s view, because both the existence and location of the
evidence were fully known to the officers the evidence was not
concealed. See also, e.g., People v. Mulcahey, 72 Ill. 2d 282, 285
(1978) (noting that something may be secreted or concealed from
others when it is kept from their knowledge).
The State, however, stresses the second meaning of the word
“conceal.” According to the State, by throwing the evidence over the
fence, defendant placed it “out of sight” of the police officers. The
State does not dispute that the officers knew defendant had thrown
the contraband, nor does the State dispute that the officers were able
to recover it in a matter of seconds. However, the State contends that
the “word ‘conceals’ merely conveys that something has been hidden,
not that it will remain hidden forever.” Thus, in the State’s view,
defendant concealed the crack pipe and push rod and, therefore, was
properly found guilty of obstructing justice. We disagree.
Courts have repeatedly rejected the proposition that temporarily
removing contraband from the sight of police officers during a pursuit
or arrest is sufficient, by itself, to constitute concealment for purposes
of obstructing justice or tampering with evidence statutes. For
example, in In re M.F., 315 Ill. App. 3d 641 (2000), the defendant
was standing on a landing or portion of roof over the entrance to an
apartment building. A police officer was standing on the sidewalk,
approximately 30 feet away. As the officer watched, the defendant
twice reached into his pocket and made a throwing motion toward the
street behind the officer. The police officer’s flashlight was shining
on the defendant’s face and person but the officer did not see what the
defendant had in his hands. After the defendant was apprehended by
other police officers, the officer on the sidewalk looked in the
direction the defendant had thrown the objects. In a matter of
seconds, he found three bags containing cocaine, located
approximately 10 feet away. Id. at 643-44.
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Although the defendant had placed the cocaine out of sight of the
police officer, the appellate court determined that the drugs had not
been concealed within the meaning of the obstructing justice statute.
In its analysis, the appellate court reviewed numerous decisions from
other jurisdictions and stated:
“the clear weight of authority from other states concludes that
where a defendant merely drops, throws down, or abandons
drugs in the vicinity of the defendant and in the presence and
view of the police, this conduct does not constitute
concealment that will support an evidence–tampering or
obstruction charge, or a conviction that is additional to and
separate from the ongoing possessory offense.” Id. at 650.
The appellate court concluded:
“even though respondent may have intended to prevent the
apprehension or obstruct the prosecution of himself for the
possession charge, throwing the drugs to the ground was not
an act of concealment that will sustain the additional
obstructing justice offense.” Id.
A similar result was reached by the Supreme Court of
Pennsylvania in Commonwealth v. Delgado, 679 A.2d 223 (Pa.
1996). In that case, the defendant threw a bag of cocaine onto the roof
of a garage while being pursued by police. Although the drugs were
out of sight while on the roof, the court determined that they had not
been concealed, stating:
“[The] act of discarding contraband in plain view of the
police does not rise to a level of conduct that constitutes the
destruction or concealment of evidence as contemplated by
the statute. The act of throwing the bag of cocaine while being
chased by the police was nothing more than an abandonment
of the evidence.” Id. at 594.
See also, e.g., McKinney v. State, 640 So. 2d 1183, 1185 (Fla. Dist.
Ct. App. 1994) (“a brief interruption of a police officer’s visual
contact with physical evidence that is on or near one’s body is not
sufficient to constitute concealment”); Harris v. State, 991 A.2d
1135, 1140 (Del. 2010) (“Whether the defendant briefly hides
evidence on a rooftop or in his mouth, if the police perceive the act
of concealment and could immediately retrieve the evidence, the
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defendant has failed to ‘suppress’ evidence ***.”).
Courts have consistently rejected the idea that placing contraband
out of sight during an arrest or pursuit is sufficient, in itself, to
constitute concealment because such a legal principle leads to harsh
and absurd results that cannot reasonably be within the ambit of
legislative intent. For example, in State v. Fuqua, 696 A.2d 44 (N.J.
Super. Ct. App. Div. 1997), the defendant was searched at police
headquarters and a package of cocaine was discovered in his socks.
The court concluded that the drugs were not concealed, explaining:
“Under what appears to be the State’s theory, defendant
would have been required to have the cocaine in plain view in
order to avoid committing this crime because, by placing the
cocaine in his socks, defendant allegedly committed a
separate indictable offense. This is difficult to fathom. We
assume that under the State’s theory, the same conviction
would be proper if the cocaine had been in defendant’s
pocket, or even in his briefcase. If the State is correct, all
illegal substances, weapons, and even illicit reading material,
would be required to be carried in plain view or else the
possessor could be convicted of a third- or fourth-degree
crime or of a disorderly persons offense, in addition to any
other substantive offense.” Id. at 47.
Similar reasoning was adopted in Vigue v. State, 987 P.2d 204
(Alaska App. 1999). In that case, the defendant made a shaking
motion that looked as if he had dropped something while approaching
a police officer. The officer could not see what, if anything, had fallen
to the ground. After the defendant was restrained, the officer walked
to where defendant had made the motion and found five rocks of
crack cocaine.
The court concluded that the defendant had not concealed the
drugs. In so doing, the court noted the absurd results that follow from
holding that any time contraband is placed out of sight it is legally
“concealed.” The court observed, for example, that persons under the
age of 21 who smoke cigarettes (a violation punishable only by a fine)
would be subject to felony convictions and penalties if they “hid
cigarettes in a pocket or purse when police officers approached,” and
“minor possessory offenses would often be converted to felonies with
little reason.” Id. at 211. See also, e.g., McKinney, 640 So. 2d at 1185
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(noting that it was “doubtful” the legislature intended a tampering
with evidence statute to be used to prosecute persons for concealing
drugs during an arrest).
We agree with the foregoing authorities. To construe the word
“conceal” as the State suggests would mean that essentially every
possessory offense where the contraband is not in plain view would
also constitute the felony offense of obstructing justice. We do not
believe the legislature intended such a result. See, e.g., Landis, 235
Ill. 2d at 12 (we presume the legislature did not intend absurd
consequences).
The State, however, counters by pointing to cases such as People
v. Brake, 336 Ill. App. 3d 464 (2003). In Brake, a police officer
observed a tan bag in a defendant’s mouth during an arrest. The
defendant swallowed the bag despite the officer’s attempt to stop him
from doing so. An ambulance was summoned and defendant was
transported to a hospital. The hospital staff introduced charcoal to
prevent the contents defendant had swallowed from being absorbed
into his system, and the defendant vomited. The bag, which contained
controlled substances, was recovered by police. Id. at 465.
On appeal, the appellate court noted that the sole issue before it
was whether the defendant “was proved guilty beyond a reasonable
doubt of the offense of obstructing justice based on his concealment
of the tan bag containing a controlled substance.” Id. at 466. The
appellate court expressly rejected the defendant’s argument that
concealment was based on what the police officer knew and that he
“could not conceal the bag where the officer was already aware of it
and defendant’s actions were undertaken in the officer’s presence.”
Id. at 467. The appellate court upheld the defendant’s conviction for
obstructing justice, stating
“We are persuaded that there is a distinction between
throwing evidence away from the person, as in M.F., and
swallowing evidence in the hopes that it will go unrecovered.
Such conduct constitutes an attempt to alter, conceal, or
destroy the evidence and will support a charge and conviction
of obstructing justice.” Id. at 468.
In the State’s view, in upholding the defendant’s conviction, the
appellate court in Brake determined that the bag of drugs was
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concealed, and thus that defendant’s conduct fell within the
obstructing justice statute, because the bag was out of sight of the
officer. We think it evident, however, that what compelled the result
in Brake, and other similar cases, was not simply the fact that the
drugs were out of sight of the police officer, but that the defendant
had, in fact, materially impeded the officer’s investigation. This
reading is consistent with the purpose of the statute.
The subject addressed by section 31–4 is “obstructing justice.”
Obstruction of justice is an attempt to interfere with the
administration of the courts, the judicial system, or law enforcement
agencies. “The phrase ‘obstructing justice’ as used in connection with
offenses arising out of such conduct means impeding or obstructing
those who seek justice in a court or those who have duties or powers
of administering justice in courts.” 67 C.J.S. Obstructing Justice §1,
at 67 (2002). Thus, in enacting section 31–4, the legislature intended
to criminalize behavior that actually interferes with the administration
of justice, i.e., conduct that “obstructs prosecution or defense of any
person.”
The facts of Brake are not before us and we express no opinion on
the correctness of that decision. However, we have no disagreement
with the proposition that a defendant who places evidence out of sight
during an arrest or pursuit has “concealed” the evidence for purposes
of the obstructing justice statute if, in doing so, the defendant actually
interferes with the administration of justice, i.e., materially impedes
the police officers’ investigation. This idea has been expressed by
other authorities. See, e.g., Anderson v. State, 123 P.3d 1110, 1119
(Alaska App. 2005) (“[t]he test appears to be whether the defendant
disposed of the evidence in a manner that destroyed it or that made its
recovery substantially more difficult or impossible”); Harris, 991
A.2d at 1138 (no concealment where contraband is “immediately
retrievable”); 18 U.S.C.S. app. §3C1.1 (2010) (under federal
sentencing guidelines, attempting to swallow or throw away a
controlled substance is not, standing alone, sufficient to warrant an
adjustment for obstruction unless it results in a “material hindrance”
to the official investigation).
In the case at bar, defendant threw the crack pipe and push rod
over a fence, where they landed approximately 10 feet away. The
police officers saw him throw the items and were able to walk around
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the fence and recover them within 20 seconds. Although the items
were briefly out of the officers’ sight, defendant did not materially
impede the officers’ investigation. Accordingly, defendant did not
“conceal” the crack pipe and push rod within the meaning of the
obstructing justice statute.
In upholding defendant’s conviction, the appellate court below
also offered the following:
“Defendant did not merely drop the evidence along his flight
path, but threw it over a six-foot, wooden privacy fence.
Defendant could have reasonably anticipated that the police
may not see him throw the evidence over the fence.
Fortunately for the police, the area where defendant threw the
evidence happened to be a well-lit, empty parking lot, making
retrieval of the evidence possible.
For the foregoing reasons, defendant’s affirmative act
constitutes concealment of the evidence under the
obstruction-of-justice statute.” 395 Ill. App. 3d at 567.
As defendant points out, this reasoning is unpersuasive. Under the
appellate court’s logic, the offense of obstructing justice would be
established where the State proves only that a defendant “anticipated”
the ability to conceal an item–not that he actually concealed anything.
In other words, the appellate court’s reasoning eliminates the actus
reus from the obstructing justice statute. We decline to adopt this
interpretation of the statute.
Conclusion
Because defendant did not “conceal” the crack pipe and push rod
within the meaning of the obstructing justice statute, the State failed
to prove him guilty of that offense beyond a reasonable doubt.
Accordingly, the judgments of the appellate and circuit courts are
reversed.
Appellate court judgment reversed;
circuit court judgment reversed.
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JUSTICE FREEMAN, specially concurring:
I agree that materiality is a necessary component of Illinois’
obstructing justice statute (720 ILCS 5/31–4(a) (West 2006)). As
today’s opinion makes clear, a defendant who places evidence out of
sight during an arrest or pursuit has “concealed” the evidence for
purposes of the obstructing justice statute if, in doing so, he
“materially impedes” a police investigation. Slip op. at 9. I write
separately to emphasize that this construction of the statute conforms
with the intent of the legislature.
The court correctly notes the importance of In re M.F., 315 Ill.
App. 3d 641 (2000), and People v. Brake, 336 Ill. App. 3d 464
(2003), in resolving the issue presented. Slip op. at 5-6, 8-9.
In M.F., the defendant was standing on the front landing or roof
over the entrance to a building when he threw bags of drugs down
from the landing and onto the ground in the vicinity of an officer who
was shining a flashlight on the defendant, saw his conduct, and
recovered the drugs within seconds. The appellate court reversed the
defendant’s conviction for obstructing justice, noting: “Under the
circumstances, it does not appear that this act was likely to either
destroy the evidence or make recovery less likely.” M.F., 315 Ill.
App. 3d at 650.
In Brake, where the court upheld the defendant’s conviction for
obstructing justice, a police officer observed a bag in the defendant’s
mouth during an arrest, and the defendant swallowed it. The
defendant was transported to a hospital, where the bag, which
contained controlled substances, was recovered by police. On appeal,
the appellate court rejected the defendant’s argument that his case
was analogous to M.F. The court stated:
“We are persuaded that there is a distinction between
throwing evidence away from the person, as in M.F., and
swallowing evidence in the hopes that it will go unrecovered.
Such conduct constitutes an attempt to alter, conceal, or
destroy the evidence and will support a charge and conviction
of obstructing justice.” Brake, 336 Ill. App. 3d at 468.
M.F. and Brake stand for the notion that materiality is an element
of the obstructing justice statute. It is significant, in my view, that the
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General Assembly has not seen fit to change section 31–4(a) in the
time since these cases were decided. Where the legislature chooses
not to amend terms of a statute after judicial construction, it is
presumed that it has acquiesced in the court’s statement of legislative
intent. R.D. Masonry, Inc., v. Industrial Comm’n, 215 Ill. 2d 397, 404
(2005). The materiality component of the obstructing justice statute
thus has been part of Illinois jurisprudence for at least eight years,
since Brake was decided.
Notwithstanding the foregoing, the dissent argues the obstructing
justice statute “does not require, as the majority finds, that a
defendant actually ‘interfere[ ] with the administration of justice, i.e.,
materially impede[ ] the police officers’ investigation.’ ” Slip op. at
18 (Thomas, J., dissenting, joined by Garman and Karmeier, JJ.). The
dissent contends, in addition, that neither M.F. nor Brake precludes
defendant’s conviction, and “there was thus no need for a legislative
change to render culpable the sort of conduct that occurred in this
case.” Id. at 19.
With regard to M.F., the dissent insists it is distinguishable from
the case at bar, noting that the appellate court majority below took
this same view. Id. However, the dissenting justice below believed
the two cases were “virtually indistinguishable.” 395 Ill. App. 3d at
567 (Pope, J. dissenting).
“The Second District found M.F.’s conduct did not
constitute obstructing justice based on concealment of
evidence, because he threw the drugs from a rooftop in the
vicinity of a police officer and the drugs were recovered
within seconds. *** In the case sub judice, the officers were
only a short distance behind defendant, saw him throw the
objects, and recovered the same, in an open, well-lit area
within seconds. Defendant simply did not conceal anything.”
395 Ill. App. 3d at 567-68 (Pope, J., dissenting).
I agree in that I believe the two cases are “virtually indistinguishable.”
With regard to Brake, the dissenting justices argue it is
distinguishable from the case at bar and M.F. Slip op. at 20 (Thomas,
J., dissenting, joined by Garman and Karmeier, JJ.). I agree. That is,
indeed, my point. As the court in Brake emphasized, there is a
distinction between “throwing evidence away from the person, as in
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M.F., and swallowing evidence in the hopes that it will go
unrecovered.” Brake, 336 Ill. App. 3d at 468. The court continued:
“Such conduct constitutes an attempt to alter, conceal, or destroy the
evidence and will support a charge and conviction of obstructing
justice.” Brake, 336 Ill. App. 3d at 468.
M.F. is “virtually indistinguishable” from the case at bar (395 Ill.
App. 3d at 567 (Pope, J., dissenting)) but is, as the dissent here states,
distinguishable from Brake. The difference between them is that, in
M.F., as in the case at bar, the conduct at issue was not “likely to
either destroy the evidence or make recovery less likely” (M.F., 315
Ill. App. 3d at 650) and thus did not materially impede the
investigation. In Brake, by contrast, the conduct in
question–swallowing the evidence–constituted “an attempt to alter,
conceal, or destroy the evidence” (Brake, 336 Ill. App. 3d at 468) and
did, in fact, materially impede the investigation. Under M.F. and
Brake, materiality is thus an element of the obstructing justice statute.
Thus, I continue to believe that the presumption of legislative
acquiescence plays an important role in resolving this question of
statutory construction. The fact that the legislature has not changed
the statute indicates to me, at least, that it agrees with the reasoning
contained in the authority cited in the court’s opinion today.
For these reasons and those set forth in the court’s opinion, I agree
that defendant’s conviction must be reversed.
JUSTICE THOMAS, dissenting:
The majority states that it has no quarrel with the proposition that
a defendant who places physical evidence out of the sight of an
officer during an arrest or pursuit is guilty of violating the obstruction
of justice statute. But the majority then tacks on an additional
requirement not found in the plain language of the statute, by
requiring that a defendant must ultimately succeed in “materially
imped[ing] the police officers’ investigation.” Slip op. at 9. Because
the plain and unambiguous language of the statute does not brook the
addition of this extra element, I respectfully dissent.
The facts of this case are not in dispute. On the night of March 24,
2006, Decatur police officer Chad Larner responded to a report of a
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theft at a local gas station. Larner left the scene at the gas station to
look for the suspect who was described as a thin, clean-shaven black
male wearing nice slacks and dressy-casual clothing. A block away
from the gas station, Officer Larner spotted defendant, who matched
the description of the suspect. Larner stopped defendant in a nearby
parking lot and asked for identification. Defendant identified himself,
and Decatur police officer Kathleen Romer soon arrived at the scene
as backup.
Defendant and the officers continued talking, but defendant began
acting strangely. Defendant jumped around, fidgeted nervously, and
threatened to urinate on the squad car. The officers communicated
defendant’s name via radio to their dispatcher. After a few moments,
the dispatcher radioed back. At that point, defendant fled into the
night through a parking lot and down an alley. The officers gave
chase down the alley, whereupon they observed defendant, while
running, reach into his pocket, take out a thin, rod-like object, and
throw it over a six-foot high wooden privacy fence. The tallest of the
two officers was only 5 foot 11 inches. And once the item was
thrown, neither officer had sight of it until it was later recovered. The
pursuit of defendant continued a short distance longer. Officer Romer
then drew her Taser and ordered defendant to stop. Defendant finally
complied by turning around and lying on the ground. The officers
then handcuffed and arrested him.
Officer Larner went around to the other side of the fence to search
for the object defendant had thrown. There, Larner saw a few feet of
landscaping next to the fence, with the rest of the area comprised of
an empty asphalt or concrete parking lot. The parking lot near the
street where the officers first encountered defendant was well lit, but
it was darker further down the alley where defendant ran. Officer
Larner, however, was quickly able to find a thin, silver rod with a
rubber tip on one end and severe burn marks on the other, as well as
a second smaller rod. Based on their training and experience, both
Officers Larner and Romer recognized the objects recovered as a
crack pipe and push rod. A push rod is a tool used to pack drugs into
a crack pipe. The officers then continued searching the parking lot for
any other items that might have been discarded by defendant, but they
found nothing else.
After hearing the foregoing evidence, the jury convicted
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defendant of one count of obstructing justice. Defendant filed a
posttrial motion, arguing that based on In re M.F., 315 Ill. App. 3d
641 (2000), he merely abandoned the evidence and did not “conceal”
it, as required under section 31–4(a) of the Criminal Code of 1961,
the obstructing justice statute. The circuit court rejected this argument
and denied defendant’s posttrial motion. A majority of the appellate
court affirmed, rejecting defendant’s claim that throwing drug
paraphernalia over a six-foot wooden privacy fence did not conceal
evidence. 395 Ill. App. 3d 560, 563-64.
This case presents a question of statutory interpretation, which
this court reviews de novo. People v. Brooks, 221 Ill. 2d 381, 388
(2006). This court’s primary objective when undertaking to interpret
a statute is to give effect to the intent of the legislature. People v.
Phelps, 211 Ill. 2d 1, 15 (2004). The best indicator of that intent is the
language of the statute itself–if the statute’s language is unambiguous,
then it is should be applied as written without using aids of statutory
construction. People v. Grever, 222 Ill. 2d 321, 328-29 (2006).
Moreover, this court will not depart from the plain meaning of a
statute by reading into it exceptions, limitations, or conditions that
conflict with the express legislative intent. Hawes v. Luhr Brothers,
Inc., 212 Ill. 2d 93, 105 (2004).
The statute at issue in this case provides in relevant part that “[a]
person obstructs justice when, with intent to prevent the apprehension
or obstruct the prosecution or defense of any person, he knowingly
*** conceals *** physical evidence ***.” (Emphasis added.) 720
ILCS 5/31–4(a) (West 2008). Thus, the crime of obstructing justice
has two elements: (1) intent to prevent or obstruct apprehension or
prosecution; and (2) concealment. Because defendant did both, I
would affirm his conviction. The statute does not require, as the
majority finds, that a defendant actually “interfere[ ] with the
administration of justice, i.e., materially impede[ ] the police officers’
investigation.” See slip op. at 9.
Defendant does not dispute that when he ran from police and
threw his crack pipe and push rod over the privacy fence, he intended
to obstruct his own apprehension and prosecution. See, e.g., State v.
Lasu, 768 N.W.2d 447, 451 (Neb. 2009) (“It is reasonable to infer
that [the defendant] threw away his marijuana because he was afraid
of being arrested and searched–in fact, it is hard to imagine another
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reasonable explanation for his actions.”). Thus, the only question in
this case is whether defendant “concealed” evidence as required by
section 31–4(a).
Neither the word “conceal” nor “concealment” is defined in the
Criminal Code of 1961. See 720 ILCS 5/1–1 et seq. (West 2008). It
is well established that if a term is not specifically defined in a statute
indicating a contrary legislative intent, the term must be given its
ordinary and popularly understood meaning. See, e.g., People v.
Bailey, 167 Ill. 2d 210, 229 (1995); People v. Christopherson, 377 Ill.
App. 3d 752, 753-54 (2007). The primary and popularly understood
dictionary definition of “conceal” is “to hide; withdraw or remove
from observation; cover or keep from sight: He concealed the gun
under his coat.” The Random House Dictionary of the English
Language 303 (Unabridged ed. 1983). Similarly, the dictionary
definition of “concealment” is “an act by which one prevents or
hinders the discovery of something *** the act of removing from
sight or notice; hiding.” Black’s Law Dictionary 306 (8th ed. 2004).
Applying the above-noted definitions to the facts of this case
shows that the element of concealment was clearly established.
Defendant, who was being questioned by police officers, suddenly
sprinted away from them, at night, and threw drug paraphernalia over
a six-foot, wooden fence. In other words, defendant “withdr[e]w or
remove[d] from observation” and “[kept] from sight” the evidence in
question. Or applying the Black’s Law Dictionary definition,
defendant “hinder[ed] the discovery of something,” “removed” the
evidence “from sight or notice,” and “hid[ ]” it from view. In short,
defendant deliberately removed evidence from the officers’ sight in
a way that made it less likely to be found. Thus, because defendant
“concealed” evidence in the ordinary sense of the word, he obstructed
justice.
The majority’s conclusion that a defendant must ultimately
succeed in either destroying the evidence or “materially impeding the
police officers’ investigation” is not supported by the text of the
statute and rests on a small amount of poorly reasoned authority.
There is nothing in the common definition of “conceal” that requires
that an item be permanently removed from sight or hidden. It is
enough that the evidence is removed from sight or hidden, even if
only for a short time before it is found or located. Looking at whether
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the evidence was actually recovered–or at how easily it was
recovered–improperly shifts the statutory inquiry away from its
rightful focus on defendant’s actions at the time of the crime onto
how quickly and competently police reacted to defendant’s actions
after the concealment had been completed. See, e.g., Brogan v.
United States, 522 U.S. 398 (1998); People v. Manning, 334 Ill. App.
3d 882 (2002).
The United States Supreme Court’s decision in Brogan is
instructive. There, the defendant argued that he could not be
convicted of making a false statement to federal investigators because
the investigators knew his statements were false when made. Thus,
the defendant reasoned, because the officers were not actually
deceived by the false statements, he did not commit a crime.
Defendant also argued that the statute should be interpreted more
narrowly than its plain language because the evil to be prevented was
the “perversion of governmental functions.” Brogan, 522 U.S. at 401-
02. The Supreme Court soundly rejected both contentions: “It could
be argued, perhaps, that a disbelieved falsehood does not pervert an
investigation. But making the existence of this crime turn upon the
credulousness of the federal investigator (or the persuasiveness of the
liar) would be exceedingly strange; such a defense to the analogous
crime of perjury is certainly unheard of.” (Emphasis in original.)
Brogan, 522 U.S. at 402, 139 L. Ed. 2d at 836, 118 S. Ct. at 809. The
Court continued by stating that “it is not, and cannot be, our practice
to restrict the unqualified language of a statute to the particular evil
that Congress was trying to remedy–even assuming that it is possible
to identify that evil from something other than the text of the statute
itself.” Brogan, 522 U.S. at 403.
The decision of our appellate court in Manning is similarly
instructive. The defendant in that case argued that he had not
“concealed” his daughter from his spouse for 15 days–as required by
the child abduction statute (720 ILCS 5/10–5(b)(6) (West
2000))–because his wife was able to discover the daughter’s location
from other sources. Manning, 334 Ill. App. 3d at 887, 889. The court
rejected that argument, stating that “[i]n determining whether a
defendant committed a criminal act, the focus must be on the
defendant’s state of mind.” (Emphasis added.) Manning, 334 Ill. App.
3d at 887. The court then employed the common dictionary definition
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of “conceal” and determined that the jury reasonably concluded that
the defendant concealed his daughter from his wife for 15 days, even
though the defendant’s wife may have had actual knowledge of her
daughter’s whereabouts during several of those days. Manning, 334
Ill. App. 3d at 889.
Here, just as the defendants did in Brogan and Manning,
defendant seeks to make his conviction turn on the cognizance of
others. But this is not the proper inquiry. As noted above, defendant
“concealed” evidence within the plain and ordinary meaning of that
term and was ultimately caught doing it. The fact that he did not
conceal the evidence permanently or very well–and that police acted
quickly to uncover his concealment–should have no bearing on
whether defendant committed the crime in the first instance.
The majority’s claim that the actus reus of the crime was never
accomplished in this case rests on a faulty construction of what it
means to “conceal” evidence within the meaning of the statute. As I
have already explained, defendant committed the completed act of
concealment when he in fact concealed the evidence by tossing it out
of sight over a privacy fence as he fled from police. Just as the crime
of perjury does not require as part of the actus reus that others
actually be deceived, the present crime did not require that the
offender ultimately be successful in materially impeding the officers’
investigation, as the majority believes. Moreover, the majority’s
standard appears to be unworkable because it does not explain at what
point an investigation would be impeded. According to the majority,
the amount of time that the evidence in this case was concealed from
officers is too short to support a conviction. But the majority never
explains what, if any, amount of time from the act of placing evidence
out-of-sight until its discovery would support a conviction. Would the
majority consider a two-minute search for evidence too short to
support a finding that an investigation was “materially impeded,” but
affirm a conviction if the evidence were only finally discovered after
four days? The answers are unclear under the standard proposed by
the majority. But such difficult line drawing would be entirely
unnecessary under a plain-text reading of the statute, as any
affirmative act of concealment combined with the requisite intent
would support a conviction.
The majority opines that under the State’s plain-text reading of
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the statute, “essentially every possessory offense where the
contraband is not in plain view would also constitute the felony
offense of obstructing justice.” Slip op. at 8. The majority is
apparently concerned that persons who carry illegal items in their
pockets, purses or briefcases would be guilty of obstructing justice
under a plain reading of the statute. But I believe that the majority’s
fears are unfounded, as it is unlikely that the intent element of the
offense could be satisfied by these routine methods of carrying items.
I also believe that what happened in the present case can be easily
distinguished from the situation involving a mere possessory offense.
It could be said that carrying an illegal item on one’s person is not an
affirmative act that constitutes concealment, and given that carrying
something in one’s pocket or handbag is a convenient way to carry
any item, there is no evidence of the “intent to prevent the
apprehension or obstruct the prosecution” that the statute requires.
See 720 ILCS 5/31–4(a) (West 2008).
The majority’s concerns are also irrelevant to this case. Defendant
was not convicted of obstruction of justice because he put a crack
pipe in his pocket or briefcase before going out into the world. Nor
did he simply panic and run at the first sight of police. Rather, after
talking with police officers for several minutes while they conducted
their investigation, defendant deliberately sprinted away from them,
at night, and disposed of his crack pipe by pitching it over a wooden,
privacy fence. This was not an act of continuing possession; it was a
separate, intentional act that had no purpose other than to thwart a
specific, ongoing investigation.
Furthermore, even accepting as proper a rule that a defendant who
abandons contraband immediately upon seeing a police officer does
not conceal it, such a rule would not be availing to defendant in this
case. Whatever else the obstruction of justice statute proscribes, it
must at least prohibit a defendant from taking the sort of affirmative,
evasive steps that defendant took here to conceal evidence of his
crimes once a police investigation was in process.
For that reason, the special concurrence is mistaken in its
conclusion that the principle of legislative acquiescence has an
“important role” in resolving the issue of statutory construction
involved in this particular case. See slip op. at 12 (Freeman, J.,
specially concurring). The special concurrence claims that the fact
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that the legislature has not amended the statute after the appellate
court’s opinions in M.F. and People v. Brake, 336 Ill. App. 3d 464
(2003), precludes defendant’s conviction in the present case. But I do
not believe that the appellate court’s holdings in those cases precludes
defendant’s conviction here, and there was thus no need for a
legislative change to render culpable the sort of conduct that occurred
in this case.
In M.F., police spotted the defendant on the roof over an entrance
to a building where they were executing a search warrant. An officer
told the defendant not to move while shining a flashlight on the
defendant. The defendant remained in the same spot, but twice
reached into his pocket and threw baggies of cocaine toward the
officer within 10 feet of him. It is not entirely clear whether the
officer ever lost sight of the items tossed in his direction. At any rate,
he recovered them within seconds. After discussing decisions from
other jurisdictions, the appellate court in M.F. concluded that where
a defendant abandons evidence by dropping it or throwing it to the
ground in the presence and view of police, this conduct does not
constitute concealment that will support a conviction under the
obstruction statute. M.F., 315 Ill. App. 3d at 650. Notably, M.F. did
not hold that materially impeding the police officers’ investigation is
a necessary element of the obstruction statute. Additionally, it must
be emphasized that M.F. carefully limited its holding to the specific
circumstances of that case. See M.F., 315 Ill. App. 3d at 650.
The present case is of course distinguishable on the facts from
M.F., and the holding in M.F. does not preclude a conviction here.
Indeed, the trial judge and two justices of the appellate court found
M.F. clearly distinguishable from the present case. In that regard, the
appellate court in this case stated as follows:
“[I]n the case sub judice, defendant did not merely abandon
the evidence by throwing it to the ground in the vicinity and
view of the police officer who was shining a flashlight on
defendant. Here, defendant took the more affirmative act of
throwing the evidence over a privacy fence and out of the
view of the police while defendant was fleeing from the
police down an alley at night.” 395 Ill. App. 3d at 565.
The special concurrence’s reliance upon Brake for a legislative
acquiescence analysis is even more problematic. Brake did not
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involve a case where the defendant fled from police and threw
evidence out of sight of police. Instead, it considered only whether a
defendant’s swallowing of evidence in the immediate presence of an
arresting officer, and where the evidence was in fact recovered, will
support an obstruction of justice charge and conviction. Brake
answered the question in the affirmative. Brake, 336 Ill. App. 3d at
468. In so doing, Brake noted and rejected the defendant’s attempt to
analogize his case to M.F. Brake explained that M.F. reasoned “that
throwing ‘bags of drugs down from the landing and onto the ground
in the vicinity of and in view of the police officer who was shining a
flashlight on respondent, saw his conduct, and recovered the drugs
within seconds of the act’ was not ‘likely to either destroy the
evidence or make recovery less likely.’ ” Brake, 336 Ill. App. 3d at
467 (quoting M.F., 315 Ill. App. 3d at 650). Brake continued by
noting that M.F. had “distinguished its facts from precisely the
situation in this case, where a defendant swallowed the evidence, and
noted that such conduct may support evidence tampering sufficient to
support a conviction.” Brake, 336 Ill. App. 3d at 467. Nothing in
Brake can be interpreted as purporting to fashion a requirement that
a defendant materially impede an investigation to support a
conviction. The special concurrence mistakenly assumes that the
requirement of M.F.–that the conduct of the defendant make
“recovery less likely”–is the equivalent of the majority’s
requirement–that the defendant “materially impede an investigation.”
In my opinion, if evidence is less likely to be recovered as a result of
certain actions of a defendant, it can still be likely to be recovered,
albeit less likely than it was before the actions were taken. In the
present case, defendant’s flight from police coupled with his tossing
of the items in a dark alley over a six-foot privacy fence satisfied the
M.F. “less likely” standard. In M.F., by contrast to the present case,
the evidence was actually more likely to be recovered because of the
defendant’s actions in that case where he tossed the items down in the
direction of and in view of police and they were in fact recovered
within seconds. It appears that the majority opinion does not simply
adopt the “less likely” standard in this case because to do so would
lead to a different result than the “materially impedes an
investigation” standard that the majority actually adopts.
The special concurrence makes two points to support its judicial
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acquiescence theory, neither of which has much merit. First, the
special concurrence argues that because the dissenting justice on the
appellate court in this case found M.F. “virtually indistinguishable”
from the present case (over the disagreement of the majority), M.F.
is in fact “virtually indistinguishable.” See slip op. at 12 (Freeman, J.,
specially concurring) (citing 395 Ill. App. 3d at 567-68 (Pope, J.,
dissenting)). As I have already clearly explained above, however,
M.F. is distinguishable from the present case and M.F. carefully
limited its holding to the specific circumstances presented, and thus
nothing more need be said on this point. Second, the special
concurrence argues that it is “indeed, [its] point” that Brake is
distinguishable from M.F. See id. It is true that Brake is
distinguishable from M.F., but I fail to see how this supports a
judicial acquiescence theory. The statement in Brake that “ ‘[s]uch
conduct, [i.e., swallowing evidence] “constitutes an attempt to alter,
conceal, or destroy the evidence and will support a charge and
conviction of obstructing justice’ ” (id. at 13 (quoting Brake, 336 Ill.
App. 3d at 468)) makes perfect sense given the court’s holding
affirming defendant’s conviction. The fact that Brake made a
distinction between the throwing of evidence away under the facts in
M.F. and the swallowing of evidence in the case before it did not and
could not purport to set forth the parameters of what might constitute
concealment in all the situations where evidence is tossed away from
police, especially where, unlike M.F., the evidence is indisputably
discarded out of sight. The fact that Brake found “throwing evidence
away” distinguishable from swallowing evidence is thus
unremarkable under the circumstance of that case where the court was
being asked to analogize its case to the specific facts of M.F., a case
where the appellate court clearly limited its holding to the specific
circumstances before it.2 At any rate, any ruling in Brake that would
2
M.F. limited its holding as follows:
“In the present case, we hold that the evidence of concealment was
insufficient to sustain the convictions of obstruction of justice.
Respondent threw bags of drugs down from a landing and onto the
ground in the vicinity and in the view of the police officer who was
shining a flashlight on respondent, saw his conduct, and recovered
the drugs within seconds of the act. Under the circumstances, it
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have claimed to reach facts not actually before it would have been
mere dicta, which obviously would not bind the legislature on a
judicial acquiescence theory.
Given that neither the fact patterns nor the holdings of M.F. and
Brake support the majority’s addition of the extra element to the
statute of “materially imped[ing] the police officers’ investigation”
(see slip op. at 9), the concept of legislative acquiescence relied upon
by the special concurrence is not an appropriate aid in resolving the
question of statutory construction before us in this case. However, in
light of the majority’s holding today, I would urge the legislature to
remedy the majority’s incorrect interpretation of the statute so that the
statute can again be construed to prohibit the sort of affirmative act
of concealment that occurred in the present case, where defendant
fled from police officers down a dark alley and placed evidence out
of their sight.
The foreign-jurisdiction authority cited by the majority is not
persuasive for a number of reasons. As stated earlier, I do not believe
that the outcome of these cases should turn on whether others were
actually fooled by a defendant’s subterfuge. Additionally, many of the
cases cited can be distinguished from the present case on their facts.
See, e.g., Harris v. State, 991 A.2d 1135, 1138 (Del. 2010) (the
defendant was only successful in partially concealing the item of
contraband from the officers view and it was “immediately
retrievable”); Anderson v. State, 123 P.3d 1110, 1118 (Alaska App.
2005) (it does not appear that the officers ever lost sight of the items
the defendant tossed away: “Anderson’s act of tossing the handgun,
magazine, and ammunition out of the car in the sight of the police did
nothing to disguise the evidentiary value of these items.”); State v.
Fuqua, 696 A.2d 44 (N.J. Super. Ct. App. Div. 1997) (defendant did
not commit an affirmative act of concealment; rather, drugs were
discovered on the defendant’s person during a police search).
Finally, the majority does not discuss the cases that have reached
does not appear that this act was likely to either destroy the
evidence or make recovery less likely. Therefore, *** [the
defendant’s act of] throwing drugs on the ground was not an act of
concealment.” M.F., 315 Ill. App. 3d at 650.
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the contrary holding that an affirmative act of tossing evidence away
to avoid apprehension or prosecution is sufficient to constitute the
offense of tampering with evidence or obstruction of justice. See, e.g.,
Pennewell v. State, 977 A.2d 800 (Del. 2009) (reaffirmed earlier
holding in Hunter, noting that it was “not a close case;” Hunter had
affirmed tampering conviction where the defendant had tossed drugs
out of car window while being pursued by, and in view of, police);
Hunter v. State, 815 A.2d 730, 737 (Del. 2002) (affirmed tampering
conviction as “not a close case” where the defendant pitched drugs
out car window and they were “recovered almost immediately”);
State v. Harley, 982 P.2d 1145 (Utah Ct. App. 1999) (affirmed
tampering conviction where the defendant tossed weapon out of
window while being followed by police with lights and siren
activated and police recovered the weapon near where it was tossed);
State v. Jennings, 666 So. 2d 131, 133 (Fla. 1995) (tossing evidence
away in the presence of police can “amount to tampering or
concealing evidence”); Hayes v. State, 634 So. 2d 1153 (Fla. Dist. Ct.
App. 1994) (upheld tampering conviction where the defendant while
fleeing police dropped baggie of cocaine into a drainage outlet, and
the wet baggie was retrieved by police from the drainage system). The
decision in Jennings is particularly persuasive. There, the Supreme
Court of Florida overruled an earlier appellate court decision “to the
extent it [could] be read to mean that tossing evidence away in the
presence of a law enforcement officer does not, as a matter of law,
constitute a violation of the [tampering with evidence] statute.” The
Florida Supreme Court continued by noting: “Depending upon the
circumstances, such an act could amount to tampering or concealing
evidence. An affirmative act of throwing evidence away constitutes
more than mere abandonment.” Jennings, 666 So. 2d at 133.
In sum, the cases that have affirmed convictions for tampering or
obstruction when a defendant discards items out of sight while being
pursued by police are more persuasive than the cases relied upon by
the majority. Moreover, the majority’s interpretation of the statute is
not consistent with its plain language. For all of the foregoing
reasons, I would affirm defendant’s conviction for obstruction of
justice.
JUSTICES GARMAN and KARMEIER join in this dissent.
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