Definition of Evidence Tampering

Under Section 918.13, Florida Statutes, tampering with evidence is defined as the alteration, destruction, or concealment of evidence with the intent to impair the use of that evidence in a known investigation or criminal proceeding.

Proof at Trial

To prove the crime of tampering at trial, the State of Florida must establish to the following two elements beyond a reasonable doubt:

  1. 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
  2. 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.

‘Tampering’ During Police Pursuit

One of the most common type of tampering scenarios in Florida is where a suspect, upon being confronted or pursued 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, 133-34 (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 of tampering. As stated by the Court:

An affirmative act of throwing evidence away constitutes more than mere abandonment. We conclude that the trial court’s ruling is rooted in an overly broad reading of Boice and find that swallowing an object clearly constitutes altering, destroying, concealing, or removing a “thing” within the meaning of section 918.13. Id.

Florida appellate courts have addressed similar issues in the context of police pursuits and investigations:

  • 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”);
  • Hayes v. State, 634 So. 2d 1153 (Fla. 4th DCA 1994) (finding tampering where a defendant intentionally dropped a baggie of cocaine into a drainage outlet while being pursued by police);
  • Chapman v. State, 36 So. 3d 822, 826 (Fla. 5th DCA 2010) (tampering found where a defendant, while being pursued by police, threw contraband out of a truck window and continued driving for approximately 1/2 mile);
  • Thomas v. State, 581 So. 2d 993 (Fla. 2d DCA 1991) (no tampering found where the defendant threw a plastic bag on the floor in proximity to law enforcement and tried to run from police);
  • Obas v. State, 935 So. 2d 38, 38-39 (Fla. 4th DCA 2006) (evidence of tampering was insufficient where an officer was about to stop the defendant (who was on a bicycle), and the defendant opened a container and dropped cocaine rocks on the ground);
  • Evans v. State, 997 So. 2d 1281, 1282 (Fla. 4th DCA 2009) (evidence of tampering was insufficient where a defendant, in close proximity to police, dropped cocaine rocks into the sand and rendered the rocks unrecoverable).

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 intentionally concealing, destroying, or removing the item/substance.

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.

Contact an Attorney

If you have been charged with evidence tampering, contact Hussein & Webber, PL for a free consultation.  We handle cases in Jacksonville, Orlando, and the surrounding counties of northeast and central Florida.