OMAHA, Neb.—The Nebraska Supreme Court has ruled that prosecutors can’t charge someone with evidence tampering simply because illegal items were abandoned.
In a ruling issued Friday, the high court rejected an objection from prosecutors in a Grand Island drug case who argued they should be able to charge a man with evidence tampering because he threw out a bag of marijuana.
James Lasu was charged with possession of marijuana and evidence tampering following his November 2007 arrest. Officers testified that they found Lasu at a gas station, where he alleged he’d been assaulted. Lasu handed over a small bag of marijuana after an officer spotted it sticking out of his pocket. He then headed into the store saying he wanted to buy some cigarettes and use the restroom. An officer followed and saw him toss a large bag of marijuana into a snack bin.
Lasu’s attorney challenged the evidence tampering charge. A Hall County district judge later ruled it couldn’t stand because Lasu didn’t attempt to hide the marijuana and prosecutors filed an objection.
Tampering with evidence is a felony offense that carries a maximum penalty of five years in prison, a $10,000 fine or both.
The high court ruled that Lasu didn’t conceal the evidence, remove it from the crime scene or do anything to prevent its discovery. In fact, he made the evidence easier to find, Judge John Gerrard wrote for the court.
“All Lasu attempted to conceal was the fact of his possession of the evidence—not the evidence itself,” he wrote.
If the charge can stick in cases like this, it would apply to nearly anyone who tried to get rid of contraband to prevent it from being discovered, he added.
“This would have the effect of converting misdemeanor possession crimes into felonies, without a clear legislative directive to do so,” Gerrard wrote.
A phone message left Friday seeking comment from an attorney representing Hall County in the case was not immediately returned.
There are a number of ways someone can be charged with evidence tampering, but it’s nice to see the court accepted that “throwing it on a Slim Jim bin isn’t one of them,” said Hall County public defender Gerry Piccolo.
“As defense counsel, (you’re) always happy the Supreme Court accepts your position,” he said.
———
On the Net:
Nebraska Supreme Court:
