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Destroying evidence like cellphone and computer photos is not a crime in Florida?

A recent 4th District Court of Appeals decision has long reaching tentacles into what is considered and isn’t considered tampering with evidence under Florida Law section 918.13.  In Costanzo v. Florida, at 4 D13-3344, appellant Costanzo was a detective at the Broward Sheriff’s Office. Following a jury trial, he was convicted of evidence tampering under section 918.13, Florida Statutes (2013). On appeal, the 4th District Court of Appeals reversed the jury’s decision to convict the Broward County detective, and throw out his conviction.

The facts leading to Detective Costanzo’s arrest and conviction stem from him deleting a video from his work cellular phone, which contained a suspect’s statements about an unrelated crime committed by two of Costanzo’s police buddies, Koepke and Dodge. After Detective Costanzo received the video, he texted the video to Koepke, showed the video to his supervisor, and used his work e-mail account to send the video to the general counsel for the Police Benevolent Association. Ten days later, appellant’s cell phone was seized by an investigator with the State Attorney’s Office. The harmful video purporting to place two of Costanzo’s police buddies in the middle of criminal activity could not be located on Costanzo’s phone and an expert concluded that the video had been deleted by the detective.

So, instead of Detective Costanzo investigating reasonable claims of police misconduct and criminal activity of fellow officers, he deleted the video from his work cellphone. Because the cellphone that Costanzo was using was in fact his “work” phone, it is government property, paid for by taxpayers of Broward County, FL. The fact that the cellular phone was government owned property, the people’s property, meant nothing to the Broward County detective as he deleted the incriminating video before investigators can retrieve the information for prosecution against all parties.

Following a trial in Broward County, FL Detective Costanzo was convicted of tampering with evidence under 918.13 but on appeal, the high court reversed his conviction and held that:  a defendant’s equivocal conduct toward evidence is insufficient to demonstrate the intent necessary for a section 918.13 violation.  Merely discarding evidence from one’s person, without more, does not amount to a violation of the statute. Furthermore, the offense of tampering with evidence is committed only when the defendant takes some action, designed to actually alter or destroy the evidence, rather than just removing it from his or her person.

Because as here, when a person like Costanzo prints the evidence or sends it to others via e-mail, it is not their intent to destroy the evidence. Costanzo showed the video to his supervisor, and used his work e-mail account to send the video to the general counsel for the Police Benevolent Association. The actions of sharing the information, by Costanzo, with others can hardly be seen as destroying it. The Appellate Court reasoned that these facts of texting and showing the criminal information and content to others is the antithesis of trying to destroy it.

With the Costanzo court’s reasoning in mind, many times a criminal defense attorney will have a consultation with a client about unpleasant facts regarding “photos” on a cellular phone or computer, regarding child pornography or other disturbing facts, like a written document in the form of a text message that outlined the nature of a crime. So, under Costanzo’s ruling, if the client prints out the evidence and then rids his cellular phone or computer of the image through destroying the saved file isn’t he or she safe from prosecution? The Costanzo holding would seem to cloak the perpetrator in innocence’s under the 4th District Court of Appeals reasoning that showing the criminal information to others is the antithesis of trying to destroy it.

Additionally, there is one more important factor that the Appellate court went on to address in the Costanzo opinion; and that is the element that the defendant must “know” there is an active investigation underway before he or she in convicted under tampering with evidence after the destruction of such evidence by the perpetrator. So, by keeping with the spirit of the Costanzo law, under the same set of facts where the attorney is meeting with his or her client, if the perpetrator is unaware of a criminal investigation regarding their behavior then by removing the otherwise unlawful images, video, text messages and the like from a cellular telephone or computer is cloaked in court protection thanks to the 4th DCA reasoning in Costanzo. It seems funny how far even the Appellate courts will jump to protect cops, sheriffs, detectives and all other law enforcement officers with decisions like Costanzo. But will the 4th DCA also jump over the moon for a perpetrator who removes images from a cellular phone that contained images of a 15 year old high school student? Texted messages between two gang members that were deleted of the next “lick” slang for robbery? Text messages deleted from a cellular phone about the “hammer” street slang for gun? And how about images removed from a computer that show children in a child pornography ring? Will the 4th District Court of Appeals use the same vigor to protect the rights of all of society or are their special rights for special people who wear a badge?

If you or a loved one needs aggressive criminal representation, then consult with Palm Beach Criminal Defense Attorney Andrew D. Stine. Andrew D. Stine has always worked for the accused and has never prosecuted anyone in his life, as his compassion in helping others is laid out in his belief that “the worst of any human condition is their lack of compassion for those being abused by the government.” Hire Stine or Do the Time.

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