Quote:
Originally Posted by unlucky4some
lol
"Hey mike, I want you to understand that you should not DESTROY ALL THE EVIDENCE. Is that perfectly clear? Of all the things you must mustn't immediately do is DESTROY ALL THE EVIDENCE would be the most important. Now go home and do not DESTROY ALL THE EVIDENCE."
https://www.orlandocriminaldefenseat...troy-evidence/
There's two distinctions there:
1. Because it is narcotics, there is a specific statute allowing mom to throw them out. That statute is necessary because simple possession is an offense. Indeed, basically all possession crimes have that defense. A felon who finds a firearm that she isn't allowed to possess is allowed to take possession long enough to destroy it or take it to the police. Etc.
But possession or a cell phone or a bluetooth headset or car keys with a transmitter in them is not illegal. It's not an offense at all. The issue isn't a prosecution for possession; it's that the phone or the headset or the keys or whatever are evidence. (I do realize that you can stretch and say that perhaps these are "cheating devices" that are prohibited by the poker cheating statute, but I don't see how you can really say that about the headset. It's just a headset usable for lots of things like listening to music or a TED talk at the table. At any rate, see 2.)
2. Crucial to the Orlando lawyer's hypothetical is that mom finds the drugs. Not the criminal. The criminal's mother. A third party who has not yet participated in any crime.
In contrast, when the defendant himself disposes of the drugs, that definitely can be prosecuted as obstruction of justice. Because he's already possessed them and committed the crime, so he's not entitled to the "possession long enough to dispose" defense.
And just to let you know that I know where people will go next, no, Postle can't just "give" the items to third parties (other than his lawyer, who has an ethical duty to preserve them) for destruction or secretion. That's obstruction of justice too. Nor can the son give the drugs to mom and tell her to get rid of them, and escape a possession charge if the government can prove he did indeed possess them.
(I should add, his answer on the child pornography hypothetical is clearly incorrect. Child pornography possession also has a defense for immediate reporting to the police. If the lawyer represents the wife, the answer is simple- he has to advise her to call the police and report what she has found. If the lawyer represents the couple, the answer is also simple- he has to advise her that he has a conflict of interest and that she needs to seek separate counsel.)