Note to Law Enforcement Personnel: If you arrest a suspect for bank robbery, and you find the stick-up note in his pocket, don’t put the note on the car near the suspect. The note might not be there when you’re done the search incident to arrest:
Background here, via Josh Blackman. Oh, and don’t miss the suspect’s facial expression at the :33 mark.
neurodoc says:
Isn’t having to eat one’s own words supposed to be an unpleasant experience?
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December 1, 2009, 7:46 pmptt says:
Perhaps an imaginative DA could spin this into evidence of recent marijuana consumption...
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December 1, 2009, 7:48 pmneurodoc says:
D’ya think the police officer who put the note on the hood right in front of the perp’s face has been teased about it since the video was shown on national TV last week and now is out there on YouTube?
(And how do we know it was the stickup note? Would a prosecutor be allowed to speculate that it was the same note used in the bank robbery? Maybe he is married and wanted to dispose of a communication that would have exposed him as a philanderer.)
Maybe perps who amuse as this fellow did should be cut a little slack in sentencing. (Anyone know if he used or possessed a gun?)
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December 1, 2009, 7:58 pmHouston Lawyer says:
They found the gun in his car.
If the defense counsel raised the “where’s the note” defense at trial, I think that this tape would be admissable to show its likely demise.
That expression was great though.
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December 1, 2009, 8:00 pmOren says:
Sound like he ate his way to a second felony.
Section 2921.12, Ohio Statutes is entitled “Tampering with evidence” and states in relevant part as follows:
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December 1, 2009, 8:16 pmThe Watcher says:
Once, long ago, the Watcher was a cop. Back then beatings could be given out more freely. It still was harder than hell to out think a bad guy.
Your first concern is going home intact. The rest is a bonus.
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December 1, 2009, 8:17 pmtamerlane says:
Does this constitute evidence of consciousness of guilt or just evidence of hunger?
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December 1, 2009, 8:17 pmneurodoc says:
I wouldn’t jump to any hasty conclusions about the gun found in the car. Some clever defense attorney may be able to come up with an innocent explanation.
As for the note, you don’t find my alternative explanation for what the note said and the perp’s reason for eating it plausible.
(Do I recall correctly that they found the loot in his car and the dye packs that were included with it? That might hurt his defense.)
If the guy had had any presence of mind(?), he would have disposed of the note rather than shoved it in his pocket. I imagine he wasn’t focused, though, or maybe he wanted to keep it as a memento.
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December 1, 2009, 8:21 pmThat Guy says:
As to the note: could it be said that your evidence is crap?
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December 1, 2009, 8:29 pmneurodoc says:
It’s surmise, isn’t it, that that piece of paper was indeed the note used in commission of the bank heist? Could he be convicted for the felony of “tampering with evidence” if the predicate, that is that it was indeed evidence of something, couldn’t be proven beyond a reasonable shadow of doubt. (I am not so credulouis as to believe that the facts are anything other than what they appear here, but I don’t know if the evidence would be enough for a conviction on tampering.) Perhaps there will be a motion to suppress the videotape, which should fail, but the note was surely definitively suppressed.
(Remember how the Iranian students who seized the American embassy in Tehran painstakingly pieced together the sensitive shreded documents they found? No matter how great their determination, I think we can be sure no one is going to reassemble this note.)
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December 1, 2009, 8:34 pmOren says:
Yup, he had stained money in the car with the gun. Stick a fork in him, he’s done.
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December 1, 2009, 8:43 pmAndrew says:
Per Charles Dickens in Our Mutual Friend: “to eat my words…is a unsatisfying sort of food, wotever a man’s appetite!” To which we can add: especially when caught on video.
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December 1, 2009, 8:50 pmGuy says:
Maybe he was just hungry, and the note happened to be the only thing nearby? Sounds like a question for the jury. Of course, we should separate the trial for that offense and suppress any information about the bank robbery or arrest as prejudicial.
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December 1, 2009, 8:58 pmShelbyC says:
It’s tempting to think that there isn’t enough evidence to get the guy for evidence tampering, since the note could have just been embarrassing, but you gotta ask yourself, if this video isn’t enough evidence of witness tampering, what is?
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December 1, 2009, 9:13 pmPatHMV says:
Neurodoc, they don’t need to prove that the note was the robbery note in order to convict for tampering with evidence. They simply have to prove that he destroyed something with the purpose of impairing its availability as evidence in an investigation. I think a reasonable jury could conclude that eating the note in those circumstances was intended to prevent the cops from reading it because of potential evidentiary value. As for the “it was a love note from my girlfriend and I didn’t want my baby mama to see it” defense, I don’t think that a reasonable jury would be compelled to find that excuse to create a reasonable doubt.
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December 1, 2009, 9:13 pmPatHMV says:
Oh, and Guy, you can’t suppress the evidence of the bank robbery because the prosecutor must prove the existence of an investigation as one element of the offense. Additionally, the totality of the facts, the dye pack, the gun, and the car meeting the description are in fact relevant to determining whether the suspect had an intent of interfering with an investigation.
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December 1, 2009, 9:17 pmneurodoc says:
No chain of custody problems with the evidence?
OK, let’s posit different facts — it wasn’t this guy, it was Tiger Woods. If Tiger had been caught on tape after his accident chewing on a piece of paper, his wife approaching fast and waving a golf club above her head, would you allow as a not implausible explanation that “it was a love note from my girlfriend and I didn’t want my baby mama to see it”? It’s all contextual, isn’t it?
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December 1, 2009, 9:28 pmrc says:
That Guy: “As to the note: could it be said that your evidence is crap?”
If it’s raised in court, this argument is grounds for case dismissal... on account of awesome.
The look on the dude’s face is the best part about it.
I think the perp should be given consideration during sentencing, if he agrees as part of his sentencing to community service: a wacky presentation to police officers around the country regarding searches and evidence control. Featuring the arresting officers, and a note-chomping re-inactment.
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December 1, 2009, 9:55 pmPatHMV says:
Yes, it is all contextual in the sense that the totality of the circumstances and evidence in the case matter, as they always do. Tiger’s accident was immediately outside his house, and it is well-established that he had just recently been inside his house shortly before the accident, not coming from someplace unknown. He was not pulled over by the police; the police were investigating the accident. So the odds of a note he ate containing evidence would be fairly slim. But if he were caught, say, pouring out a glass of liquid as the police arrived, then I think a reasonable jury could conclude that he was probably getting rid of evidence that he had been drinking, rather than assuming that he was pouring out a soft drink so his wife wouldn’t be upset with him for breaking his diet. Here, however, the suspect was pulled over by police, with a gun and a bunch of red money in his car. I don’t think many reasonable juries would conclude that his first thought, as he is being slammed up against the car hood and frisked by the police, was to hide evidence of an affair in case his wife might see the logged-in evidence the police seized from him.
Moreover, juries are entitled to evaluate things like facial expressions in determining the credibility of witnesses and other factors. The smirk at :33 does not look to me like a sign of relief that his wife would not find out about an affair; it appears to me much more like an actual smirk, smug satisfaction at having put one over on the police.
Finally, the statute doesn’t even require that the evidence related to any particular investigation. If the note were, say, the directions to a nearby meth lab, and he ate it so that the police wouldn’t know he was on the way to buy meth, that would still violate the statute, even if the police had no idea that the meth lab existed or that the suspect wanted to buy meth.
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December 1, 2009, 9:57 pmjosh bornstein says:
It’s things like this that make me love the internets. The first 60 seconds or so was the *best* thing I’ve seen on TV this year. Hysterical. If I had seen this on a TV drama (Law & Order, et al), I would have rolled my eyes at the implausibility of the whole thing, and chalked it up to lazy and poor writing. Wow. Truth is stranger than fiction.
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December 1, 2009, 10:34 pmneurodoc says:
As you can see, I don’t really have my heart in this criminal defense stuff. Maybe this guy will find somebody who can do a better job of it than I, though I think the best of them won’t be able to get him off.
I take your point about how “evidence” of any criminal activity will do and it needn’t be evidence in any case the police were already investigating. It is a good one that didn’t occur to me when I tried to concoct some “innocent” explanation for why he might have wanted to eat the note. (Are “baby mama” and “baby daddy” terms used to finesse the question of marriage?)
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December 1, 2009, 10:54 pmTweets that mention The Volokh Conspiracy » Blog Archive » A Snack Incident to Arrest -- Topsy.com says:
[...] This post was mentioned on Twitter by Gabriel Malor, Jasper Drake. Jasper Drake said: RT @gabrielmalor: This got a laugh: http://is.gd/59Bho Advice for police: do not put evidence on the car when you do your search. [...]
Guy says:
I was joking, but maybe I made the mistake of not making an argument so sophistic that no lawyer would make it. That is a pretty high bar to clear sometimes.
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December 2, 2009, 12:27 amLargo says:
Probably. But could he be convicted of a tampering offense? Oren cites an Ohio statute:
I guess it would depend on local statute and local sense of what a “reasonable” man “ought” to have known about what is “likely”.
(I can’t help but add: bah — I hate vague laws like that. So is it generally illegal to drink immediately after an auto accident to calm one’s nerves?)
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December 2, 2009, 5:49 amGuy says:
Well, it’s illegal to drink on a public street/sidewalk in most jurisdictions anyway. Also generally illegal to have an open container of alcohol in your car.
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December 2, 2009, 6:01 amLargo says:
True, but tangential to the question I was musing upon: whether one would be committing a tampering-of-evidence sort of offense. (But I raised it as a humbug as much as anything.)
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December 2, 2009, 6:23 amuberVU - social comments says:
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[...] Orin Kerr, this is hilarious. The cops take the bank robber’s stick-em-up note from his pocket and put [...]
PatHMV says:
Largo, there’s that old joke about the 2 guys who crashed their cars into one another. The first guy gets out and, ascertaining that both were ok, talks with the second guy about how shaken up they both are. The second guy agrees, and the first guy offers him a swig from his flask, to help him steady his nerves. The second guy takes a long pull on the flask, and then offers it back to the first guy, who says: “No thanks, I’ll wait until after the police get here.”
As a prosecutor, I actually lost a DWI case due to post-accident drinking. One car collision, guy walks away from the scene, catches a ride home. The police arrive about an hour later (having stumbled upon the accident), to find the guy having put away several beers. He testified that he had done no drinking before the accident (despite having spent the entire day in his friend’s new bar, helping get it ready for a grand opening later that night), and drank some beers after he got home because he was so shaken up. That was enough to create reasonable doubt.
Guy... sorry about that! I’m afraid I’ve seen some REALLY ludicrous arguments by criminal defense attorneys.
Neurodoc... I was, of course, being a bit facetious with my “baby mamma” terminology. It’s just that the hypothetical explanation reminded me of an experience my brother had once, where one of his semi-pro football player teammates cajoled my brother into giving him a ride home, to his apartment where he lived with his baby mamma (his term, not mine or my brother’s), wait for him to shower and change, and then give him a ride to his girlfriend’s house. While my brother was at the apartment, waiting for him to finish showering, the baby mamma discovered (by rifling through the teammate’s pockets) where he was going next, and an argument ensued. My brother did end up giving the guy a ride to girlfriend’s house, in the end.
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December 2, 2009, 9:54 amCousin Vinny says:
You’re not alone. While courtwatching during law school, I once saw this very defense prevail in a DUI case. A guy was found stinking drunk next to his pickup truck, which was in a roadside ditch. On the stand, he claimed he swerved into a ditch to avoid a “deer,” then exited the vehicle and started drinking because he was so shaken up.
The jury bought it. On the way out, the prosecutor and public defender just smiled at each other.
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December 2, 2009, 4:14 pmTim says:
That was what I was thinking when I read this as well.
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December 2, 2009, 4:49 pmJoeSixpack says:
After experiencing his wife’s wrath with the golf club I think TIger would claim that the note was the stick-up note for a bank robbery before he claimed that it was from a girlfriend.
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December 2, 2009, 5:51 pmMorning Links | The Agitator says:
[...] In which a key piece of the state’s evidence turns to crap. [...]
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[...] Volokh Conspiracy, A Snack Incident to Arrest; Josh Blackman [...]
Phelps says:
I know that in civil court, spoliation like that would entitle his adversary to an inference that the note was harmful to his position, but I don’t know if the prosecution is entitled to that inference in criminal court.
If they aren’t, the bank robbery case against him could be in trouble. If the money can be linked to the bank, then he’s done. Otherwise, all they have him on is the weapon and car, not the bank. He didn’t show the gun during the robbery, so there really isn’t any link there. Without the note, the only physical evidence linking him there is (maybe) the money.
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December 3, 2009, 3:00 pmChris Mallory says:
Personally, I would vote not guilty on “tampering with evidence”. They can’t prove what the note said. It was the defendant’s property, he could dispose of it if he wished.
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December 3, 2009, 3:11 pmneurodoc says:
Where in Section 2921.12 does it say that one cannot be found guilty of “tampering with evidence” if what was “alter(ed), destroy(ed) conceal(ed) or remove(d)” was a “record, document, or other thing” that the accused had property rights in? I don’t see such an exception and thing it very unlikely to exist.
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December 3, 2009, 5:38 pmProsecutorial Indiscretion says:
Could he be convicted for the felony of “tampering with evidence” if the predicate, that is that it was indeed evidence of something, couldn’t be proven beyond a reasonable shadow of doubt.
Sure he could. The standard isn’t “a reasonable shadow of doubt,” it’s reasonable doubt. While I don’t know exactly what evidence defense counsel would put forward, based on viewing the tape alternative explanations for why the guy would eat a piece of paper in that context would seem unreasonable. Unless one of the jurors is a kooky nullifier more interested in making a point than in doing his duty, it seems like a pretty easy case for the prosecution under the quoted statute.
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