DONALD ANDREW BOICE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Donald Boice was convicted of purchasing cocaine and tampering with evidence after an undercover drug purchase in Winter Haven, Florida. The Florida District Court of Appeal affirmed his cocaine purchase conviction but reversed the tampering conviction, finding that merely abandoning a bag of cocaine at the arrest scene did not constitute the statutory offense of tampering with evidence.
The court held that Boice's act of tossing the cocaine bag away from his person while in the presence of arresting officers at the scene did not constitute tampering with evidence. Merely abandoning evidence at the arrest scene, in clear sight of law enforcement, does not rise to the level of concealment or removal with the requisite statutory purpose, and the legislature did not intend the simple abandonment of contraband to constitute a third-degree felony.
[1] Abandoning evidence at the scene of an arrest in plain sight of law enforcement does not constitute tampering with evidence under Florida law.
[2] The crime of tampering with evidence requires an intent to impair the verity or availability of a record, document, or thing in a pending or imminent proceeding or invest…
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Join FLexlaw to unlock all legal intelligence“The defendant's act of tossing the small bag of cocaine away from his person while in the presence of the arresting officers at the scene of the purchase does not rise to the level of conduct which constitutes a concealment or removal of something for the purpose of impairing its availability for the criminal trial.”
Establishes the court's core holding that abandoning evidence at an arrest scene does not constitute tampering
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Join FLexlaw to unlock all legal intelligenceOn February 19, 1988, at 6:45 p.m., Boice purchased a single rock of cocaine in a small bag from an undercover police officer at an intersection in Wi…
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ALTENBERND, Judge.
Mr. Boice appeals his convictions and sentences for purchase of cocaine and tampering with evidence. We affirm the conviction and sentence for the purchase of cocaine, but reverse the conviction and sentence for tampering with evidence.
At 6:45 p.m., on February 19, 1988, Mr. Boice stopped his car at an intersection in Winter Haven, Florida, and purchased a single rock of cocaine in a small bag from an undercover police officer. As soon as Mr. Boice completed the purchase, he was surrounded by uniformed officers in marked police cars. After the other officers arrived, the undercover officer observed Mr. Boice throw the bag of cocaine out the window of his car. One of the officers retrieved the bag from the roadway. The bag was near the door on the driver’s side of Mr. Boice’s car. The officer who retrieved the bag stated that he just looked on the ground and located the bag. There is no evidence that the cocaine had been altered or destroyed. After receiving his Miranda warnings, the defendant admitted that he had purchased the cocaine for his personal use.
Section 918.13, Florida Statutes (1987), states:
(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 defendant’s act of tossing the small bag of cocaine away from his person while in the presence of the arresting officers at the scene of the purchase does not rise to the level of conduct which constitutes a concealment or removal of something for the purpose of impairing its availability for the criminal trial. In this case, the defendant did not conceal the cocaine. Although he removed the cocaine from his hand, he did not remove the cocaine from the immediate area of his arrest. Mr. Boice merely abandoned the evidence.
The statute must be construed most favorably to the accused. § 775.021(1), Fla. Stat. (1987). We do not attempt to define the extreme boundaries of “tampering” in this case. However, we do not believe that the legislature intended the simple act of abandoning a bag of crack cocaine at the scene of an arrest, in the clear sight of a law enforcement officer, to constitute the commission of this additional third-degree felony.1 If the defendant’s act in this case constituted tampering, then a nineteen-year-old who threw a can of beer from his car when stopped by a police officer would commit not only the second-degree misdemeanor of possession of alcoholic beverages,2 but also the third-degree felony of tampering with evidence. We do not believe that the legislature intended an additional felony under such circumstances.
The defendant also appeals the judgment imposing costs and fees. Because the judgment was entered without notice and an opportunity to object, the assessment must be stricken without prejudice to the state to tax costs and fees against Mr. Boice after proper notice and hearing. Jenkins v. State, 444 So. 2d 947 (Fla.1984).
Affirmed in part, reversed in part, and remanded for proceedings consistent herewith.3
DANAHY, A.C.J., and HALL, J., concur. .See McNeil v. State, 438 So. 2d 960 (Fla. 1st DCA 1983) (shredding signed waiver of rights form at police station does not establish the specific intent necessary to prove tampering with evidence); Cook v. State, 528 So. 2d 1311 (Fla. 2d DCA 1988) (removing a questionable nose tank from an airplane in anticipation of law enforcement’s inspection and in order to conceal the tank from law enforcement is tampering with evidence).
. § 562.111, Fla.Stat. (1987).
. The defendant received a sentence within the recommended guideline range for his purchase of cocaine conviction. Since that range is not altered by this opinion, we do not require resentencing on remand.
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Cited By (12 total)
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McKINNEY v. State, 640 So. 2d 1183 (Fla. 2d DCA 1994)…text when enacting the statute. The state’s invocation of this crime in close cases has forced the judiciary to make some fine distinctions depending on the facts of each case. This case is probably another example of that trend. In Boice v. State, 560 So. 2d 1383 (Fla. 2d DCA 1990), this court held that a defendant who threw a bag of cocaine a short distance out the window of his stopped car, while surrounded by police, did not commit tampering when the bag was recovered. In Thomas v. State, 581 So. 2d 993 (…
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McKENZIE v. State, 632 So. 2d 276 (Fla. 4th DCA 1994)…e no trouble concluding that it is. Defendant relies on a line of cases in which the defendant has discarded the evidence or the evidence has become lost while defendant was being arrested, however the cases are distinguishable. In Boice v. State, 560 So. 2d 1383 (Fla. 2d DCA 1990), the defendant purchased a rock of cocaine from an undercover police officer, and when he was subsequently surrounded by officers, threw the cocaine out of his car window. One of the officers retrieved it. The second district reve…
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State v. Darrel Jennings, 666 So. 2d 131 (Fla. 1995)…re Jennings put the alleged cocaine rocks into his mouth. Moreover, the court found that shouting “police,” without more, was insufficient to establish that Jennings knew an investigation was about to be instituted. [*133] Relying on Boice v. State, 560 So. 2d 1383 (Fla. 2d DCA 1990), and its progeny, the trial court concluded that swallowing alleged contraband in the presence of officers does not constitute altering, destroying, concealing, or removing a “thing” within the meaning of section 918.13. In Boice,…1 / 2
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Jenkins v. State, 444 So. 2d 947 (Fla. 1984)
- McNEIL v. State, 438 So. 2d 960 (Fla. 1st DCA 1983)
- Cook v. State, 528 So. 2d 1311 (Fla. 2d DCA 1988)