{ "id": 4288506, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. DANNY COMAGE, Appellant", "name_abbreviation": "People v. Comage", "decision_date": "2011-02-25", "docket_number": "No. 109495", "first_page": "139", "last_page": "168", "citations": [ { "type": "official", "cite": "241 Ill. 2d 139" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "395 Ill. App. 3d 560", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4291821 ], "weight": 3, "pin_cites": [ { "page": "567" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/395/0560-01" ] }, { "cite": "426 U.S. 610", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6181032 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/us/426/0610-01" ] }, { "cite": "315 Ill. App. 3d 641", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 980676 ], "weight": 5, "year": 2000, "pin_cites": [ { "page": "643-44" }, { "page": "650" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/315/0641-01" ] }, { "cite": "231 Ill. 2d 324", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3616988 ], "weight": 3, "year": 2008, "pin_cites": [ { "page": "332" }, { "page": "332" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/231/0324-01" ] }, { "cite": "228 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5706340 ], "year": 2007, "pin_cites": [ { "page": "8" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/228/0001-01" ] }, { "cite": "235 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3625191 ], "weight": 2, "year": 2009, "pin_cites": [ { "page": "11" }, { "page": "12", "parenthetical": "we presume the legislature did not intend absurd consequences" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/235/0001-01" ] }, { "cite": "1961 Ill. Laws 1983", "category": "laws:leg_session", "reporter": "Ill. Laws", "weight": 2, "opinion_index": 0 }, { "cite": "72 Ill. 2d 282", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5442815 ], "year": 1978, "pin_cites": [ { "page": "285", "parenthetical": "noting that something may be secreted or concealed from others when it is kept from their knowledge" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/72/0282-01" ] }, { "cite": "679 A.2d 223", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 463596, 11320278 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/pa/544/0591-01", "/a2d/679/0223-01" ] }, { "cite": "640 So. 2d 1183", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 7464010 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "1185", "parenthetical": "\"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\"" }, { "page": "1185", "parenthetical": "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" } ], "opinion_index": 0, "case_paths": [ "/so2d/640/1183-01" ] }, { "cite": "991 A.2d 1135", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 7291830 ], "weight": 2, "year": 2010, "pin_cites": [ { "page": "1140", "parenthetical": "\"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 defendant has failed to 'suppress' evidence ***.\"" }, { "page": "1138", "parenthetical": "no concealment where contraband is \"immediately retrievable\"" } ], "opinion_index": 0, "case_paths": [ "/a2d/991/1135-01" ] }, { "cite": "696 A.2d 44", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 214369 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "47" } ], "opinion_index": 0, "case_paths": [ "/nj-super/303/0040-01" ] }, { "cite": "336 Ill. App. 3d 464", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1599227 ], "weight": 5, "year": 2003, "pin_cites": [ { "page": "465" }, { "page": "466" }, { "page": "467" }, { "page": "468" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/336/0464-01" ] }, { "cite": "395 Ill. App. 3d 560", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4291821 ], "weight": 3, "pin_cites": [ { "page": "567", "parenthetical": "Pope, J., dissenting" }, { "page": "567-68", "parenthetical": "Pope, J., dissenting" }, { "page": "567", "parenthetical": "Pope, J., dissenting" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/395/0560-01" ] }, { "cite": "315 Ill. App. 3d 641", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 980676 ], "weight": 3, "year": 2000, "pin_cites": [ { "page": "650" }, { "page": "650" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/315/0641-01" ] }, { "cite": "336 Ill. App. 3d 464", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1599227 ], "weight": 5, "year": 2003, "pin_cites": [ { "page": "468" }, { "page": "468" }, { "page": "468" }, { "page": "468" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/336/0464-01" ] }, { "cite": "215 Ill. 2d 397", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4060353 ], "year": 2005, "pin_cites": [ { "page": "404" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/215/0397-01" ] }, { "cite": "395 Ill. App. 3d 560", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4291821 ], "weight": 4, "pin_cites": [ { "page": "563-64" }, { "page": "565" }, { "page": "567-68", "parenthetical": "Pope, J., dissenting" } ], "opinion_index": 2, "case_paths": [ "/ill-app-3d/395/0560-01" ] }, { "cite": "315 Ill. App. 3d 641", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 980676 ], "weight": 5, "year": 2000, "pin_cites": [ { "page": "650" }, { "page": "650" }, { "page": "650" }, { "page": "650" } ], "opinion_index": 2, "case_paths": [ "/ill-app-3d/315/0641-01" ] }, { "cite": "991 A.2d 1135", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 7291830 ], "year": 2010, "pin_cites": [ { "page": "1138", "parenthetical": "the defendant was only successful in partially concealing the item of contraband from the officers view and it was \"immediately retrievable\"" } ], "opinion_index": 2, "case_paths": [ "/a2d/991/1135-01" ] }, { "cite": "696 A.2d 44", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 214369 ], "year": 1997, "pin_cites": [ { "parenthetical": "defendant did not commit an affirmative act of concealment; rather, drugs were discovered on the defendant's person during a police search" } ], "opinion_index": 2, "case_paths": [ "/nj-super/303/0040-01" ] }, { "cite": "336 Ill. App. 3d 464", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1599227 ], "weight": 5, "year": 2003, "pin_cites": [ { "page": "468" }, { "page": "467" }, { "page": "467" }, { "page": "468" } ], "opinion_index": 2, "case_paths": [ "/ill-app-3d/336/0464-01" ] }, { "cite": "221 Ill. 2d 381", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5703823 ], "year": 2006, "pin_cites": [ { "page": "388" } ], "opinion_index": 2, "case_paths": [ "/ill-2d/221/0381-01" ] }, { "cite": "211 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 8450979 ], "year": 2004, "pin_cites": [ { "page": "15" } ], "opinion_index": 2, "case_paths": [ "/ill-2d/211/0001-01" ] }, { "cite": "222 Ill. 2d 321", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3602236 ], "year": 2006, "pin_cites": [ { "page": "328-29" } ], "opinion_index": 2, "case_paths": [ "/ill-2d/222/0321-01" ] }, { "cite": "212 Ill. 2d 93", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2444492 ], "year": 2004, "pin_cites": [ { "page": "105" } ], "opinion_index": 2, "case_paths": [ "/ill-2d/212/0093-01" ] }, { "cite": "768 N.W2d 447", "category": "reporters:state_regional", "reporter": "N.W.2d", "year": 2009, "pin_cites": [ { "page": "451", "parenthetical": "\"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 reasonable explanation for his actions.\"" } ], "opinion_index": 2 }, { "cite": "167 Ill. 2d 210", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 222743 ], "year": 1995, "pin_cites": [ { "page": "229" } ], "opinion_index": 2, "case_paths": [ "/ill-2d/167/0210-01" ] }, { "cite": "377 Ill. App. 3d 752", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4274454 ], "year": 2007, "pin_cites": [ { "page": "753-54" } ], "opinion_index": 2, "case_paths": [ "/ill-app-3d/377/0752-01" ] }, { "cite": "522 U.S. 398", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11471744 ], "weight": 4, "year": 1998, "pin_cites": [ { "page": "401-02" }, { "page": "402" }, { "page": "403" } ], "opinion_index": 2, "case_paths": [ "/us/522/0398-01" ] }, { "cite": "334 Ill. App. 3d 882", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 521925 ], "weight": 4, "year": 2002, "pin_cites": [ { "page": "887, 889" }, { "page": "887" }, { "page": "889" } ], "opinion_index": 2, "case_paths": [ "/ill-app-3d/334/0882-01" ] }, { "cite": "977 A.2d 800", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 7295488 ], "year": 2009, "pin_cites": [ { "parenthetical": "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" } ], "opinion_index": 2, "case_paths": [ "/a2d/977/0800-01" ] }, { "cite": "815 A.2d 730", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 9335754 ], "year": 2002, "pin_cites": [ { "page": "737", "parenthetical": "affirmed tampering conviction as \"not a close case\" where the defendant pitched drugs out car window and they were \"recovered almost immediately\"" } ], "opinion_index": 2, "case_paths": [ "/a2d/815/0730-01" ] }, { "cite": "666 So. 2d 131", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 7421889, 7421857 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "133", "parenthetical": "tossing evidence away in the presence of police can \"amount to tampering or concealing evidence\"" }, { "page": "133" } ], "opinion_index": 2, "case_paths": [ "/so2d/666/0131-02", "/so2d/666/0131-01" ] }, { "cite": "634 So. 2d 1153", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 7480699 ], "year": 1994, "pin_cites": [ { "parenthetical": "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" } ], "opinion_index": 2, "case_paths": [ "/so2d/634/1153-01" ] } ], "analysis": { "cardinality": 1626, "char_count": 55440, "ocr_confidence": 0.753, "pagerank": { "raw": 8.048566898954311e-08, "percentile": 0.4660823854981507 }, "sha256": "926c176eaece34406b4c16e02382ee53e27d9ea22b1de17276ab0826a8c03a2c", "simhash": "1:1b61efd234284df4", "word_count": 9012 }, "last_updated": "2023-07-14T21:49:30.571673+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Appel-lee, v. DANNY COMAGE, Appellant." ], "opinions": [ { "text": "JUSTICE BURKE\ndelivered the judgment of the court, with opinion.\nChief Justice Kilbride and Justice Theis concurred in the judgment and opinion.\nJustice Freeman specially concurred, with opinion.\nJustice Thomas dissented, with opinion, joined by Justices Garman and Karmeier.\nOPINION\nIn this case, we must determine whether certain physical evidence was \u201cconcealed\u201d within the meaning of Illinois\u2019 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\u2019 sight for approximately 20 seconds. The appellate court concluded that the evidence was concealed and, on that basis, affirmed the defendant\u2019s conviction for obstructing justice. 395 Ill. App. 3d 560. For the reasons that follow, we reverse the judgment of the appellate court.\nBackground\nIn March 2007, the State charged the defendant, Danny Comage, with obstructing justice (720 ILCS 5/31 \u2014 4(a) (West 2006)), alleging that defendant, \u201cwith 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-rodt ] over a wooden privacy fence and out of view while being pursued by police.\u201d 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 \u2014 1 (West 2006)).\nIn 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\u2019s 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\u2019s 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.\nA 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 \u201cnice casual clothes.\u201d While patrolling the area, Larner observed a man who matched the suspect\u2019s description in the parking lot of a McDonald\u2019s 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 identified himself as defendant.\nAs 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.\nDuring 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 \u201cwell-lit with artificial lighting\u201d and that he had a \u201cclear observation\u201d of defendant as they were running. Defendant stopped 10 to 15 feet after throwing the objects when Romer threatened to use her Taser.\nAfter 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 \u201ctwenty seconds\u201d after he went to look for them. The jury found defendant guilty.\nDefendant 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\u2019s motion. Defendant was then sentenced to three years\u2019 imprisonment.\nDefendant 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. 395 Ill. App. 3d 560. We allowed defendant\u2019s petition for leave to appeal. Ill. S. Ct. R. 315 (eff. Feb. 26, 2010).\nAnalysis\nIllinois\u2019 obstructing justice statute, section 31 \u2014 4 of the Criminal Code of 1961, provides:\n\u201cA 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:\n(a) Destroys, alters, conceals or disguises physical evidence, plants false evidence, furnishes false information!;.]\u201d 720 ILCS 5/31 \u2014 4(a) (West 2006).\nAs 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 \u201cconceal\u201d as it is used in the obstructing justice statute.\nThe cardinal rule of statutory construction is to ascertain and give effect to the legislature\u2019s intent. Abruzzo v. City of Park Ridge, 231 Ill. 2d 324, 332 (2008). The legislature\u2019s 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.\nThe obstructing justice statute does not define the word \u201cconceal.\u201d 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 \u00a731 \u2014 4 (eff. Jan. 1, 1962). Webster\u2019s dictionary from that time contains two definitions of the word \u201cconceal.\u201d The first definition states: \u201c1 : to prevent disclosure or recognition of : avoid revelation of : refrain from revealing : withhold knowledge of : draw attention from : treat so as to be unnoticed ***.\u201d Webster\u2019s Third New International Dictionary 469 (1961). The second definition states: \u201c2 : to place out of sight : withdraw from being observed : shield from vision or notice ***.\u201d Id.\nBefore this court, defendant relies primarily on the first definition of the word \u201cconceal.\u201d Defendant contends he did not \u201cwithhold knowledge\u201d 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 \u201c[t]he officers were in no doubt that [defendant] had thrown contraband \u2014 or where.\u201d Thus, in defendant\u2019s 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).\nThe State, however, stresses the second meaning of the word \u201cconceal.\u201d According to the State, by throwing the evidence over the fence, defendant placed it \u201cout of sight\u201d 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 \u201cword \u2018conceals\u2019 merely conveys that something has been hidden, not that it will remain hidden forever.\u201d Thus, in the State\u2019s view, defendant concealed the crack pipe and push rod and, therefore, was properly found guilty of obstructing justice. We disagree.\nCourts 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\u2019s flashlight was shining on the defendant\u2019s 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.\nAlthough 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:\n\u201cthe 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.\u201d Id. at 650.\nThe appellate court concluded:\n\u201ceven 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.\u201d Id.\nA 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:\n\u201c[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.\u201d Id. at 594.\nSee also, e.g., McKinney v. State, 640 So. 2d 1183, 1185 (Fla. Dist. Ct. App. 1994) (\u201ca brief interruption of a police officer\u2019s visual contact with physical evidence that is on or near one\u2019s body is not sufficient to constitute concealment\u201d); Harris v. State, 991 A.2d 1135, 1140 (Del. 2010) (\u201cWhether 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 defendant has failed to \u2018suppress\u2019 evidence ***.\u201d).\nCourts 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:\n\u201cUnder what appears to be the State\u2019s 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\u2019s theory, the same conviction would be proper if the cocaine had been in defendant\u2019s 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.\u201d Id. at 47.\nSimilar reasoning was adopted in Vigue v. State, 987 E2d 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.\nThe 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 \u201cconcealed.\u201d The court observed, for example, that persons under the age of 21 who smoke cigarettes (a violation punishable only by a f\u00edne) would be subject to felony convictions and penalties if they \u201chid cigarettes in a pocket or purse when police officers approached,\u201d and \u201cminor possessory offenses would often be converted to felonies with little reason.\u201d Id. at 211. See also, e.g., McKinney, 640 So. 2d at 1185 (noting that it was \u201cdoubtful\u201d the legislature intended a tampering with evidence statute to be used to prosecute persons for concealing drugs during an arrest).\nWe agree with the foregoing authorities. To construe the word \u201cconceal\u201d 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).\nThe 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\u2019s mouth during an arrest. The defendant swallowed the bag despite the officer\u2019s 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.\nOn appeal, the appellate court noted that the sole issue before it was whether the defendant \u201cwas proved guilty beyond a reasonable doubt of the offense of obstructing justice based on his concealment of the tan bag containing a controlled substance.\u201d Id. at 466. The appellate court expressly rejected the defendant\u2019s argument that concealment was based on what the police of-fleer knew and that he \u201ccould not conceal the bag where the officer was already aware of it and defendant\u2019s actions were undertaken in the officer\u2019s presence.\u201d Id. at 467. The appellate court upheld the defendant\u2019s conviction for obstructing justice, stating\n\u201cWe 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 unrecov-ered. Such conduct constitutes an attempt to alter, conceal, or destroy the evidence and will support a charge and conviction of obstructing justice.\u201d Id. at 468.\nIn the State\u2019s view, in upholding the defendant\u2019s conviction, the appellate court in Brake determined that the bag of drugs was concealed, and thus that defendant\u2019s 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\u2019s investigation. This reading is consistent with the purpose of the statute.\nThe subject addressed by section 31 \u2014 4 is \u201cobstructing justice.\u201d Obstruction of justice is an attempt to interfere with the administration of the courts, the judicial system, or law enforcement agencies. \u201cThe phrase \u2018obstructing justice\u2019 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.\u201d 67 C.J.S. Obstructing Justice \u00a71, at 67 (2002). Thus, in enacting section 31 \u2014 4, the legislature intended to criminalize behavior that actually interferes with the administration of justice, i.e., conduct that \u201cobstructs prosecution or defense of any person.\u201d\nThe 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 \u201cconcealed\u201d 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\u2019 investigation. This idea has been expressed by other authorities. See, e.g., Anderson v. State, 123 E3d 1110, 1119 (Alaska App. 2005) (\u201c[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\u201d); Harris, 991 A.2d at 1138 (no concealment where contraband is \u201cimmediately retrievable\u201d); 18 U.S.C.S. app. \u00a73C1.1 (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 \u201cmaterial hindrance\u201d to the official investigation).\nIn 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 the fence and recover them within 20 seconds. Although the items were briefly out of the officers\u2019 sight, defendant did not materially impede the officers\u2019 investigation. Accordingly, defendant did not \u201cconceal\u201d the crack pipe and push rod within the meaning of the obstructing justice statute.\nIn upholding defendant\u2019s conviction, the appellate court below also offered the following:\n\u201cDefendant 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.\nFor the foregoing reasons, defendant\u2019s affirmative act constitutes concealment of the evidence under the obstruction-of-justice statute.\u201d 395 Ill. App. 3d at 567.\nAs defendant points out, this reasoning is unpersuasive. Under the appellate court\u2019s logic, the offense of obstructing justice would be established where the State proves only that a defendant \u201canticipated\u201d the ability to conceal an item \u2014 not that he actually concealed anything. In other words, the appellate court\u2019s reasoning eliminates the actus reus from the obstructing justice statute. We decline to adopt this interpretation of the statute.\nConclusion\nBecause defendant did not \u201cconceal\u201d 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.\nAppellate court judgment reversed; circuit court judgment reversed.\nA \u201cpush-rod\u201d is a tool used to clean and pack drugs into crack pipes.", "type": "majority", "author": "JUSTICE BURKE" }, { "text": "JUSTICE FREEMAN,\nspecially concurring:\nI agree that materiality is a necessary component of Illinois\u2019 obstructing justice statute (720 ILCS 5/31 \u2014 4(a) (West 2006)). As today\u2019s opinion makes clear, a defendant who places evidence out of sight during an arrest or pursuit has \u201cconcealed\u201d the evidence for purposes of the obstructing justice statute if, in doing so, he \u201cmaterially impedes\u201d a police investigation. 241 Ill. 2d at 149.1 write separately to emphasize that this construction of the statute conforms with the intent of the legislature.\nThe 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. 241 Ill. 2d at 145-46, 150.\nIn 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\u2019s conviction for obstructing justice, noting: \u201cUnder the circumstances, it does not appear that this act was likely to either destroy the evidence or make recovery less likely.\u201d M.F., 315 Ill. App. 3d at 650.\nIn Brake, where the court upheld the defendant\u2019s conviction for obstructing justice, a police officer observed a bag in the defendant\u2019s 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\u2019s argument that his case was analogous to M.F. The court stated:\n\u201cWe 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.\u201d Brake, 336 Ill. App. 3d at 468.\nM.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 General Assembly has not seen fit to change section 31 \u2014 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\u2019s statement of legislative intent. R.D. Masonry, Inc. v. Industrial Comm\u2019n, 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.\nNotwithstanding the foregoing, the dissent argues the obstructing justice statute \u201cdoes not require, as the majority finds, that a defendant actually \u2018interfere[ ] with the administration of justice, i.e., materially impede[ ] the police officers\u2019 investigation.\u2019 \u201d 241 Ill. 2d at 157 (Thomas, J., dissenting, joined by Garman and Karmeier, JJ.). The dissent contends, in addition, that neither M.F. nor Brake precludes defendant\u2019s conviction, and \u201cthere was thus no need for a legislative change to render culpable the sort of conduct that occurred in this case.\u201d Id. at 162.\nWith 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 \u201cvirtually indistinguishable.\u201d 395 Ill. App. 3d at 567 (Pope, J., dissenting).\n\u201cThe Second District found M.F.\u2019s 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.\u201d 395 Ill. App. 3d at 567-68 (Pope, J., dissenting).\nI agree in that I believe the two cases are \u201cvirtually indistinguishable. \u2019 \u2019\nWith regard to Brake, the dissenting justices argue it is distinguishable from the case at bar and M.F. 241 Ill. 2d at 163 (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 \u201cthrowing evidence away from the person, as in M.F., and swallowing evidence in the hopes that it will go unrecovered.\u201d Brake, 336 Ill. App. 3d at 468. The court continued: \u201cSuch conduct constitutes an attempt to alter, conceal, or destroy the evidence and will support a charge and conviction of obstructing justice.\u201d Brake, 336 Ill. App. 3d at 468.\nM.F. is \u201cvirtually indistinguishable\u201d 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 \u201clikely to either destroy the evidence or make recovery less likely\u201d (M.F., 315 Ill. App. 3d at 650) and thus did not materially impede the investigation. In Brake, by contrast, the conduct in question \u2014 swallowing the evidence\u2014 constituted \u201can attempt to alter, conceal, or destroy the evidence\u201d (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.\nThus, 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\u2019s opinion today.\nFor these reasons and those set forth in the court\u2019s opinion, I agree that defendant\u2019s conviction must be reversed.", "type": "concurrence", "author": "JUSTICE FREEMAN," }, { "text": "JUSTICE THOMAS,\ndissenting:\nThe 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 \u201cmaterially imped[ing] the police officers\u2019 investigation.\u201d 241 Ill. 2d at 149. Because the plain and unambiguous language of the statute does not brook the addition of this extra element, I respectfully dissent.\nThe 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 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.\nDefendant 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\u2019s 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.\nOfficer 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.\nAfter hearing the foregoing evidence, the jury convicted 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 \u201cconceal\u201d it, as required under section 31 \u2014 4(a) of the Criminal Code of 1961, the obstructing justice statute. The circuit court rejected this argument and denied defendant\u2019s posttrial motion. A majority of the appellate court affirmed, rejecting defendant\u2019s claim that throwing drug paraphernalia over a six-foot wooden privacy fence did not conceal evidence. 395 Ill. App. 3d 560, 563-64.\nThis case presents a question of statutory interpretation, which this court reviews de novo. People v. Brooks, 221 Ill. 2d 381, 388 (2006). This court\u2019s 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 \u2014 if the statute\u2019s language is unambiguous, then it is 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).\nThe statute at issue in this case provides in relevant part that \u201c[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 ***.\u201d (Emphasis added.) 720 ILCS 5/31 \u2014 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 \u201cinterfere!] ] with the administration of justice, i.e., materially impede [] the police officers\u2019 investigation.\u201d See 241 Ill. 2d at 150.\nDefendant 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.W2d 447, 451 (Neb. 2009) (\u201cIt is reasonable to infer that [the defendant] threw away his marijuana because he was afraid of being arrested and searched \u2014 in fact, it is hard to imagine another reasonable explanation for his actions.\u201d). Thus, the only question in this case is whether defendant \u201cconcealed\u201d evidence as required by section 31 \u2014 4(a).\nNeither the word \u201cconceal\u201d nor \u201cconcealment\u201d is defined in the Criminal Code of 1961. See 720 ILCS 5/1 \u2014 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. Christopher son, 377 Ill. App. 3d 752, 753-54 (2007). The primary and popularly understood dictionary definition of \u201cconceal\u201d is \u201cto hide; withdraw or remove from observation; cover or keep from sight: He concealed the gun under his coat.\u201d The Random House Dictionary of the English Language 303 (Unabridged ed. 1983). Similarly, the dictionary definition of \u201cconcealment\u201d is \u201can act by which one prevents or hinders the discovery of something *** the act of removing from sight or notice; hiding.\u201d Black\u2019s Law Dictionary 306 (8th ed. 2004).\nApplying 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 \u201cwithdr[e]w or remove[d] from observation\u201d and \u201c[kept] from sight\u201d the evidence in question. Or applying the Black\u2019s Law Dictionary definition, defendant \u201chinder[ed] the discovery of something,\u201d \u201cremoved\u201d the evidence \u201cfrom sight or notice,\u201d and \u201chid[ ]\u201d it from view. In short, defendant deliberately removed evidence from the officers\u2019 sight in a way that made it less likely to be found. Thus, because defendant \u201cconcealed\u201d evidence in the ordinary sense of the word, he obstructed justice.\nThe majority\u2019s conclusion that a defendant must ultimately succeed in either destroying the evidence or \u201cmaterially impeding the police officers\u2019 investigation\u201d 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 \u201cconceal\u201d 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 the evidence was actually recovered \u2014 or at how easily it was recovered \u2014 improperly shifts the statutory inquiry away from its rightful focus on defendant\u2019s actions at the time of the crime onto how quickly and competently police reacted to defendant\u2019s 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).\nThe United States Supreme Court\u2019s 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 \u201cperversion of governmental functions.\u201d Brogan, 522 U.S. at 401-02. The Supreme Court soundly rejected both contentions: \u201cIt 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.\u201d (Emphasis in original.) Brogan, 522 U.S. at 402. The Court continued by stating that \u201cit 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 \u2014 even assuming that it is possible to identify that evil from something other than the text of the statute itself.\u201d Brogan, 522 U.S. at 403.\nThe decision of our appellate court in Manning is similarly instructive. The defendant in that case argued that he had not \u201cconcealed\u201d his daughter from his spouse for 15 days \u2014 as required by the child abduction statute (720 ILCS 5/10 \u2014 5(b)(6) (West 2000)) \u2014 because his wife was able to discover the daughter\u2019s location from other sources. Manning, 334 Ill. App. 3d at 887, 889. The court rejected that argument, stating that \u201c[i]n determining whether a defendant committed a criminal act, the focus must be on the defendant\u2019s state of mind.\u201d (Emphasis added.) Manning, 334 Ill. App. 3d at 887. The court then employed the common dictionary definition of \u201cconceal\u201d and determined that the jury reasonably concluded that the defendant concealed his daughter from his wife for 15 days, even though the defendant\u2019s wife may have had actual knowledge of her daughter\u2019s whereabouts during several of those days. Manning, 334 Ill. App. 3d at 889.\nHere, 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 \u201cconcealed\u201d 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 \u2014 and that police acted quickly to uncover his concealment \u2014 should have no bearing on whether defendant committed the crime in the first instance.\nThe majority\u2019s claim that the actus reus of the crime was never accomplished in this case rests on a faulty construction of what it means to \u201cconceal\u201d 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\u2019 investigation, as the majority believes. Moreover, the majority\u2019s 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 \u201cmaterially impeded,\u201d 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.\nThe majority opines that under the State\u2019s plain-text reading of the statute, \u201cessentially every possessory offense where the contraband is not in plain view would also constitute the felony offense of obstructing justice.\u201d 241 Ill. 2d at 148. 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\u2019s 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\u2019s person is not an affirmative act that constitutes concealment, and given that carrying something in one\u2019s pocket or handbag is a convenient way to carry any item, there is no evidence of the \u201cintent to prevent the apprehension or obstruct the prosecution\u201d that the statute requires. See 720 ILCS 5/31 \u2014 4(a) (West 2008).\nThe majority\u2019s 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.\nFurthermore, 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.\nFor that reason, the special concurrence is mistaken in its conclusion that the principle of legislative acquiescence has an \u201cimportant role\u201d in resolving the issue of statutory construction involved in this particular case. See 241 Ill. 2d at 154 (Freeman, J., specially concurring). The special concurrence claims that the fact that the legislature has not amended the statute after the appellate court\u2019s opinions in M.F. and People v. Brake, 336 Ill. App. 3d 464 (2003), precludes defendant\u2019s conviction in the present case. But I do not believe that the appellate court\u2019s holdings in those cases preclude defendant\u2019s conviction here, and there was thus no need for a legislative change to render culpable the sort of conduct that occurred in this case.\nIn 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\u2019 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.\nThe 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:\n\u201c[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.\u201d 395 Ill. App. 3d at 565.\nThe special concurrence\u2019s rebanee upon Brake for a legislative acquiescence analysis is even more problematic. Brake did not involve a case where the defendant fled from police and threw evidence out of sight of police. Instead, it considered only whether a defendant\u2019s 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\u2019s attempt to analogize his case to M.F. Brake explained that M.F. reasoned \u201cthat throwing \u2018bags 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\u2019 was not \u2018likely to either destroy the evidence or make recovery less likely.\u2019 \u201d Brake, 336 Ill. App. 3d at 467 (quoting M.F., 315 Ill. App. 3d at 650). Brake continued by noting that M.F. had \u201cdistinguished 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.\u201d 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. \u2014 that the conduct of the defendant makes \u201crecovery less likely\u201d \u2014 is the equivalent of the majority\u2019s requirement \u2014 that the defendant \u201cmaterially impede an investigation.\u201d 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\u2019s flight from police coupled with his tossing of the items in a dark alley over a six-foot privacy fence satisfied the M.F. \u201cless likely\u201d standard. In M.F., by contrast to the present case, the evidence was actually more likely to be recovered because of the defendant\u2019s 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 \u201cless likely\u201d standard in this case because to do so would lead to a different result than the \u201cmaterially impedes an investigation\u201d standard that the majority actually adopts.\nThe special concurrence makes two points to support its judicial 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. \u201cvirtually indistinguishable\u201d from the present case (over the disagreement of the majority), M.F. is in fact \u201cvirtually indistinguishable.\u201d See 241 Ill. 2d at 154 (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 \u201cindeed, [its] point\u201d that Brake is distinguishable from M.F. See id. It is true that Brake is distinguishable from M.F., hut I fail to see how this supports a judicial acquiescence theory. The statement in Brake that \u201c \u2018[s]uch conduct, [i.e., swallowing evidence] \u201cconstitutes an attempt to alter, conceal, or destroy the evidence and will support a charge and conviction of obstructing justice\u201d \u2019 \u201d (id. at 153-54 (quoting Brake, 336 Ill. App. 3d at 468)) makes perfect sense given the court\u2019s holding affirming defendant\u2019s 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 \u201cthrowing evidence away\u201d 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. At any rate, any ruling in Brake that would 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.\nGiven that neither the fact patterns nor the holdings of M.F. and Brake support the majority\u2019s addition of the extra element to the statute of \u201cmaterially imped [ing] the police officers\u2019 investigation\u201d (see 241 Ill. 2d at 149), 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\u2019s holding today, I would urge the legislature to remedy the majority\u2019s 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.\nThe 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\u2019s 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 \u201cimmediately retrievable\u201d); Anderson v. State, 123 E3d 1110, 1118 (Alaska Ct. App. 2005) (it does not appear that the officers ever lost sight of the items the defendant tossed away: \u201cAnderson\u2019s 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.\u201d); 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\u2019s person during a police search).\nFinally, the majority does not discuss the cases that have reached 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 \u201cnot a close case\u201d; 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 \u201cnot a close case\u201d where the defendant pitched drugs out car window and they were \u201crecovered almost immediately\u201d); State v. Harley, 982 E2d 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 \u201camount to tampering or concealing evidence\u201d); 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 \u201cto 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.\u201d The Florida Supreme Court continued by noting: \u201cDepending 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.\u201d Jennings, 666 So. 2d at 133.\nIn 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\u2019s interpretation of the statute is not consistent with its plain language. For all of the foregoing reasons, I would affirm defendant\u2019s conviction for obstruction of justice.\nJUSTICES GARMAN and KARMEIER join in this dissent.\nM.F. limited its holding as follows:\n\u201cIn 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 does not appear that this act was likely to either destroy the evidence or make recovery less likely. Therefore, *** [the defendant\u2019s act of) throwing drugs on the ground was not an act of concealment.\u201d M.F., 315 Ill. App. 3d at 650.", "type": "dissent", "author": "JUSTICE THOMAS," } ], "attorneys": [ "Michael J. Pelletier, State Appellate Defender, Gary R. Peterson, Deputy Defender, and Colleen M. Morgan, Assistant Appellate Defender, of the Office of the State Appellate Defender, of Springfield, for appellant.", "Lisa Madigan, Attorney General, of Springfield, and Jack W Ahola, State\u2019s Attorney, of Decatur (Michael A. Scodro, Solicitor General, and Michael M. Glick and David A. Simpson, Assistant Attorneys General, of Chicago, of counsel), for the People." ], "corrections": "", "head_matter": "(No. 109495.\nTHE PEOPLE OF THE STATE OF ILLINOIS, Appel-lee, v. DANNY COMAGE, Appellant.\nOpinion filed February 25, 2011.\nMichael J. Pelletier, State Appellate Defender, Gary R. Peterson, Deputy Defender, and Colleen M. Morgan, Assistant Appellate Defender, of the Office of the State Appellate Defender, of Springfield, for appellant.\nLisa Madigan, Attorney General, of Springfield, and Jack W Ahola, State\u2019s Attorney, of Decatur (Michael A. Scodro, Solicitor General, and Michael M. Glick and David A. Simpson, Assistant Attorneys General, of Chicago, of counsel), for the People." }, "file_name": "0139-01", "first_page_order": 149, "last_page_order": 178 }