THE STATE OF FLORIDA, APPELLANT,
v.
DARREL JENNINGS, APPELLEE
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The State appealed the dismissal of a tampering with evidence charge against Jennings, who swallowed alleged cocaine rocks when he saw a police officer approaching. The court affirmed the dismissal, holding that Jennings could not be convicted of tampering with evidence because he was neither under arrest nor had notice that a criminal investigation was about to be instituted when he swallowed the suspected cocaine.
The defendant did not commit tampering with evidence because he was neither under arrest nor had knowledge that a law enforcement investigation was about to be instituted when he swallowed the alleged cocaine rocks. Merely shouting 'police' was insufficient to put the defendant on notice that an investigation was about to begin.
[1] A person commits tampering with physical evidence by altering, destroying, concealing, or removing a thing with the purpose to impair its verity or availability in a pend…
[2] A defendant's conduct does not constitute tampering with evidence if the defendant is not under arrest and has not been put on notice that a law enforcement investigation…
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Join FLexlaw to unlock all legal intelligence“The defendant in this case did not tamper with evidence because he was neither under arrest nor did he know that a law enforcement officer was about to instigate an investigation.”
Establishes the core holding that tampering with evidence requires both being under arrest or having knowledge of a pending investigation
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Join FLexlaw to unlock all legal intelligenceLaw enforcement officers observed the defendant holding what appeared to be a marijuana cigarette and loose cocaine rocks in his palm. When an officer…
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PER CURIAM.
The State appeals the dismissal of a charge of tampering with physical evidence in violation of section 918.13, Florida Statutes (1993). The charge was dismissed pursuant to Fla.R.Crim.P. 3.190(c)(4), and the State did not contest the underlying facts. We affirm.
According to the undisputed facts, the defendant was observed holding what law enforcement officers believed was a marijuana cigarette. As one of the officers approached the defendant, the officer also saw what appeared to be loose cocaine rocks in the defendant’s palm. When the officer shouted “police,” the defendant put the alleged cocaine rocks into his mouth and swallowed. The defendant was then arrested but the objects he swallowed were never recovered.
The trial court found the facts were insufficient to establish that the defendant’s conduct violated section 918.13. That section provides:
918.13. Tampering with or fabricating physical evidence
(1) No person, knowing that a criminal trial or proceeding or an investigation by a duly constituted prosecuting authority, law enforcement agency, grand jury or legislative committee of this state is pending or is about to be instituted, shall:
(a) Alter, destroy, conceal, or remove any record, document, or thing with the purpose to impair its verity or availability in such proceeding or investigation.
The State argues that the defendant’s actions were an attempt to alter or impair the availability of the evidence.
The defendant in this case did not tamper with evidence because he was neither under arrest nor did he know that' a law enforcement officer was about to instigate an investigation. The defendant was not under arrest because the officer had not even reached the defendant before he put the alleged cocaine rocks in his mouth. Jones v. State, 590 So. 2d 982 (Fla. 1st DCA 1991); Thomas v. State, 581 So. 2d 993 (Fla. 2d DCA 1991); see also, Brown v. State, 575 So. 2d 1360 (Fla.3d DCA 1991) (“Once the officer had taken the evidence into his custody, the defendant was not entitled to remove it.”). Additionally, shouting “police,” without more, was insufficient to put the defendant on notice that an investigation was about to be instigated. Cf. Hayes v. State, 634 So. 2d 1153 (Fla. 4th DCA) (defendant convicted of tampering with evidence when he dropped baggie containing crack cocaine in a drainage outlet while being pursued by police), rev. denied, 645 So. 2d 452 (Fla.1994). To the extent our decision conflicts with Hayes, we certify conflict to the Florida Supreme Court.
The time of arrest distinguishes this case from two others where our sister courts have determined that defendants who attempted to swallow alleged cocaine rocks after their arrest had committed the crime of tampering with evidence. McKenzie v. State, 632 So. 2d 276, 277 (Fla.4th DCA 1994); McKinney v. State, 640 So. 2d 1183 (Fla.2d DCA 1994).
We affirm the dismissal of the tampering with evidence charge but certify any conflict with Hayes to the Florida Supreme Court.
AFFIRMED.
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State v. Darrel Jennings, 666 So. 2d 131 (Fla. 1995)…GRIMES, Chief Justice. We have for review State v. Jennings, 647 So. 2d 294, 295 (Fla. 3d DCA 1994), wherein the district court of appeal certified conflict with Hayes v. State, 634 So. 2d 1153 (Fla. 4th DCA), review denied, 645 So. 2d 452 (Fla.1994). We have jurisdiction pursuant to article V, section 3(b)(4) of the Florid…
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Forchin v. State, 660 So. 2d 763 (Fla. 3d DCA 1995)…rchin appeals an order revoking his probation based upon his alleged commission of tampering with physical evidence while on probation and failure to report to his probation officer as directed. Based upon this court’s decision of State v. Jennings, 647 So. 2d 294 (Fla. 3d DCA1994), rev. granted, 659 So. 2d 1089 (Fla.1995), we find that the tampering charge could not legally serve as a basis for the revocation but For-chin’s willful failure to report as directed could. Accordingly, we affirm. Forchin was pla…
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State v. Forchin, 684 So. 2d 820 (Fla. 1996)…port to his probation officer. The trial court revoked Forchin’s probation on both grounds. However, the district court of appeal found that the facts supporting the tampering charge2 were virtually indistinguishable from those in State v. Jennings, 647 So. 2d 294 (Fla. 3d DCA 1994), wherein that court had affirmed the dismissal of a tampering charge. Based on its decision in Jennings, the court concluded that the tampering charge could not legally serve as a basis for Forchin’s probation revocation. The cour…
Authorities Cited
- McKINNEY v. State, 640 So. 2d 1183 (Fla. 2d DCA 1994)
- McKENZIE v. State, 632 So. 2d 276 (Fla. 4th DCA 1994)
- Thomas v. State, 581 So. 2d 993 (Fla. 2d DCA 1991)
- Jones v. State, 590 So. 2d 982 (Fla. 1st DCA 1991)
- Hayes v. State, 634 So. 2d 1153 (Fla. 4th DCA 1994)
- Brown v. State, 575 So. 2d 1360 (Fla. 3d DCA 1991)