The question of obstructing an investigation or tampering with evidence arises about what one may do with alternative weapons and other personal effects after self defense and before police arrive and search. We are told of instructors advising students to divest themselves of knives, pepper spray, second or back up guns and entrust them to another person before police arrive. We wonder whether divesting oneself of other weapons would likely result in obstruction or tampering with evidence charges, so we asked our affiliated attorneys —
How does your state law or case law address removing weapons that were not used in the self defense act but that were carried on one’s person?
Steven M. Harris
Attorney-At-Law
14260 W. Newberry Road - #320, Newberry, Florida 32669-2765
305-350-9150
There are videos available on the internet which show law enforcement officers in Florida turning over the personal belongings of an arrestee to a person accompanying the arrestee at the time of arrest. Nonetheless, some law enforcement officers and prosecutors reviewing a self-defense incident might believe used or unused personal effects items such as a pocket knife, OC canister, firearm reload, flashlight, NRA or ACLDN membership card, cell phone or other property may/should be seized without consent or a warrant, whether or not the defender is arrested on scene. I think not.
However, of note is the felony under Fla. Stat. § 918.13, which might be asserted against the defender and the person given the personal effects, even though it is in a chapter labeled “Conduct of Trial.” The offense is not dependent on the commission of an independent crime or the item’s admissibility as evidence or other use in a trial if it was available to law enforcement at the scene. Much of the caselaw refers to the statute as “evidence tampering.”
The statute, as edited by me for readability and to address the Attorney Question of the Month:
It is unlawful for any person, knowing that an investigation by a duly constituted prosecuting authority or law enforcement agency is about to be instituted, to conceal or remove an item with the purpose to impair its verity or availability in such investigation.
Many states have similarly worded, all-encompassing evidence tampering and obstruction statutes which follow the language and near madness of the plethora of federal criminal laws on such. (As I write this, one such important case is now pending before the United States Supreme Court.) Affiliated attorneys from all states might want to look at a recent Utah Supreme Court case, State v. Paule, as a caution to giving advice on a client’s offloading personal effects at the scene of a self-defense incident. In that case the defendant was acquitted of all charges but convicted of obstructing justice. See https://legacy.utcourts.gov/opinions/supopin/State%20v.%20Paule20240201.pdf.
Daniel Dubé, Esq.
40 Cassell St., Lewiston, ME 04240-3920
207-200-4899
https://www.themainelawyer.com/
I would absolutely guard against removing weaponry from the premises, even if not involved in the incident. A judge would take a dim view of any spoliation of evidence, as likely would a jury. As to Maine, in most areas of the state, multiple weapons in a house, even many, would not prejudice a jury.
Much better to face down questions as to whether you are a responsible owner than to face questions as to why you disposed of possible evidence, disturbed what is now a crime scene, or delayed in contacting authorities.
Craig R. Johnson
Anderson, Fife, Marshall & Johnson, LC
Craig Johnson Law, PLLC
2500 N. University Ave., Provo, UT 84604
801-458-2285
https://craigjohnsonlaw.com/
Each case is so fact-specific and unique that there is no blanket answer for this important question. In Utah, the risks and frequency of being charged with Obstruction of Justice and/or Evidence Tampering are so significant that an individual consultation is the best way to get this answer.
Steven C. Howard
209 N. Walnut, Upper Level, Lansing, MI 48933
517-374-9000
http://stevenhowardesq.com/
As a general rule, I would advise against it. Especially if it happens in a public place where there’s liable to be surveillance cameras everywhere. They see you divesting yourself of other weapons, it is likely to be interpreted by any prosecutor as evidence of an underlying crime. It would also be seen as altering evidence in general.
Remember, the law is whatever the prosecutor decides it is, so you shouldn’t carry more than one pistol or at most two. A primary and a back up. If you carry more pistols than that, you need a psychiatrist, not a lawyer. If you’re carrying a pocket knife, that’s just a tool. If you’re carrying spray, that’s a great idea because it means the gun is not your first idea. This is evidence that would tend to lack of intent to kill. I would urge people to carry both a gun and pepper spray. I teach this in CPL class. It’s a nice halfway step between your fist and a gun. That’s how you explain it. Why kill somebody if you can pepper spray them?
Larry P. McDougal
The Law Office of Larry P. McDougal
809 Houston St., Richmond, TX 77469
281-238-8500
https://www.larrymcdougal.com
You are justified in using deadly force or you weren’t. In representing officers, I find more get in trouble for a cover up when it was not necessary. Who cares what other weapons you may have had? If you get caught hiding evidence you could hurt the credibility of your self-defense claim.
The hiding of evidence can result in tampering with evidence charges. Most important is credibility when asserting a self-defense claim. Instructors stating otherwise are giving their students bad information.
Jerold E. Levine
Law Offices of Jerold E. Levine
5 Sunrise Plaza, Ste. 201, Valley Stream, NY
212-482-8830
http://www.thegunlawyer.net/
I had a client who accidentally shot a hole into his first floor apartment ceiling, and after the upstairs neighbor left her apartment in fear — and it was known that she was going to see a relative — the client called my office to ask for advice. I advised him to immediately empty his gun safe of everything except the offending weapon, and to take the guns to a friend’s house for storage.
The purpose of that advice was to prevent the very over-zealous police in that jurisdiction from seizing every gun the client owned, which they would have done when they arrived many hours later, responding to a complaint from the upstairs neighbor. But, that was a very special situation. No one but the client knew how many guns he owned, and the location was very private, so no one saw him loading his modest gun collection into his car and driving away.
A self-defense shooting is unlikely to offer such an opportunity for divestment of secondary weapons or other equipment. Likely the police will arrive very quickly, and if there are witnesses, there is no way to eliminate things without being observed. Also, while it may not be strictly illegal to give your wife or a friend items not used in the self-defense shooting, later it will be questioned, and you will look suspicious. It also allows a prosecutor to allege that you were hiding evidence, and the jury will ponder that matter. Even if you hid nothing of relevance, the jury will wonder why you hid anything.
Unless such a maneuver can be made with absolute privacy and no likelihood of disclosure, it is unwise, and could seriously prejudice a criminal case. An attorney will have a much easier time explaining why you carry three guns, two knives and a sap, than they will have explaining why you tried to hide most of those things after the shooting.
Benjamin M. Blatt
P O Box 221, South Bend, IN 46601
574-360-4039
https://www.facebook.com/hoosierattorney/
An exact specific answer to this would probably be case by case dependent, but as a general bit of counsel, I certainly wouldn’t advise courting additional charges by even having the appearance of concealing or attempting to conceal weapons that may be relevant to a defensive incident. If you have the opportunity to do so SAFELY before police arrive on scene, I could see handing off a wallet sans ID and carry license, keys, or other valuables, in the expectation that right or wrong you are still probably going to jail in the short term, but as to weapons, you should have the expectation that anything from pepper spray to a backup firearm you carry on you will be seized in the event of a defensive act.
Michael Whisonant
Jaffe, Hanle, Whisonant, & Knight, P.C.
2320 Arlington Ave S., Birmingham, AL 35205
205-930-9800
https://www.rjaffelaw.com
The State of Alabama does not have a statute that removes weapons from someone that is being investigated, however it is a common bond condition for someone charged not to possess firearms.
Donald O. Chesworth
Tully Rinckey PLLC
400 Linden Oaks Suite 110 | Rochester, NY 14625
585-899-1423
https://www.tullylegal.com/
As a former prosecutor and law enforcement official, I would most importantly recommend that one not conceal or do anything which would suggest that he or she is attempting to mislead the investigative officials. The impression that one is being misleading or not being truthful will be harmful to one’s defense. If other more lethal weapons were lawfully in the possession of the subject of the investigation, but were not used, that could be very beneficial. Each case has its own unique issues and it would be helpful if the subject of the investigation consulted with counsel before taking any action or being interviewed.
Thomas Hale
Hale Sides LLC
505 20th St N., Birmingham, AL 35203
205-453-9800
https://www.halesides.com/
I think any instructor who advises a person to divest themselves of any other sort of weapons or give them to someone else before the police arrive is giving horrible advice that will only make the situation much, much worse. Taking such steps smacks of dishonesty as if the person who used deadly force had something to hide. That’s the last impression a justified shooter needs to project.
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