Definition of Evidence Tampering
As defined under Section 918.13, Florida Statutes, tampering with evidence occurs when a person alters, destroys or conceals a record or physical evidence with the intent to impair the use of that evidence, while he or she is aware that an investigation or criminal proceeding is underway or about to be underway. To prove the crime of tampering at trial, the State of Florida must establish to the following two elements beyond a reasonable doubt:
- The defendant knew that a criminal trial or proceeding or an investigation by a duly constituted prosecuting authority, law enforcement agency, grand jury, or legislative committee was pending or about to be instituted; and
- The defendant altered, destroyed, concealed, or removed any record, document, or thing with the purpose to impair its verity or availability in the investigation or proceeding, or the Defendant made, presented, or used any record, document or thing knowing it to be false.
Penalties for Evidence Tampering
In Florida, Tampering With or Fabricating Physical Evidence is classified as a third degree felony, with penalties of up to 5 years in prison or 5 years of probation, and a $5,000 fine. A conviction could mean substantial jail or prison time and the creation of a permanent criminal record.
Tossing Away or Swallowing Evidence
One of the most common type of tampering scenarios in Florida is where a suspect, upon being confronted or chased by police, swallows or throws away evidence in his or her possession. Can this constitute “tampering” within the meaning of Section 918.13?
In State v. Jennings, 666 So.2d 131, 133 (Fla. 1995), the Florida Supreme Court answered this question in the affirmative. In Jennings, police officers observed the defendant holding what was believed to be a joint of marijuana. As one of the officers approached, he also observed what he believed to be loose cocaine rocks in one of the defendant’s hands. The officer shouted “police!” At that point, the defendant tossed the alleged cocaine rocks into his mouth and swallowed them. The objects that were swallowed were never recovered.
On these facts, the Florida Supreme Court held that the tossing away or swallowing of evidence in the presence of a law enforcement officer could constitute evidence tampering under Section 918.13, Florida Statutes. As stated by the Court:
Florida appellate courts have addressed similar issues in the context of alleged evidence tampering. See McKinney v. State, 640 So.2d 1183, 1186 (Fla. 2d DCA 1994) (concluding that if jury found defendant tried to swallow cocaine to impair its availability for criminal investigation, proceeding, or trial, jury could find defendant guilty of attempted tampering); McKenzie v. State, 632 So.2d 276, 277 (Fla. 4th DCA 1994) (concluding that “[s]wallowing a substance such as this surely constitutes an intent to ‘alter, destroy, conceal, or remove’ as clear as any act could, including flushing it down a toilet”).
Thus, where a defendant merely throws away evidence, such as drugs, weapons, or contraband, a factual issue is created as to whether the defendant was merely abandoning the item/substance or actively concealing, destroying, or removing the item/substance. In cases where drugs/narcotics are swallowed, the result is clear. The act of swallowing constitutes “concealment” or removal, unless the defendant was consuming for some other purpose, or was not aware that law enforcement was in pursuit.
Knowledge of a Pending Investigation
In order to obtain a conviction for evidence tampering in Florida, the prosecution must establish that the defendant knew of a pending investigation or criminal proceeding. This issue frequently arises where a police officer is investigating suspected drug activity, orders a suspect to stop, and, in response, the suspect swallows narcotics in his or her possession. The Florida Supreme Court has held that such a scenario is sufficient by itself to survive a motion to dismiss and create a factual question for the jury. Jennings, 666 So.2d at 134. As the Court stated, “[W]e cannot say that the evidence is such that a trier of fact would be precluded, as a matter of law, from finding that [the defendant] knew an investigation was about to be commenced when he swallowed the alleged contraband.” Id.
Thus, where a defendant swallows drugs or other contraband after police order him/her to stop or to approach, this may be viewed as evidence of the defendant’s knowledge that an investigation was about to be underway. A defendant may, however, dispute the evidence if he or she does not hear the officer, or believes erroneously that he or she is not a suspect.
Defenses to Evidence Tampering
There are numerous defenses available under Florida law to contest a charge of Evidence Tampering. Some of the more common defenses to the charge include the following:
- Illegal search or seizure;
- Consensual encounter;
- Lack of knowledge as to pending investigation or proceeding;
- Alteration, concealment, destruction, removal for purposes other than evidence tampering;
- Evidence was merely abandoned, not removed or destroyed.
If you have been charged with evidence tampering in West Palm Beach, Palm Beach County, Broward County, Martin County, or St. Lucie County, Florida, you may have defenses available to contest the charge or to minimize potential penalties. Contact Attorney Steven Sessa s today for a free consultation.