On December 3, 2014, Florida’s Fourth District Court of Appeal overturned a police detective’s conviction for deleting a video from his work cellular telephone. The video recorded a witness making statements about a case, but the state’s evidence did not show that the detective deleted the video from his cellular phone with the purpose of impairing its availability for the investigation. The proof that the video’s deletion was not intended to impair its availability stemmed from the facts that, before deleting the video, the detective showed it to a supervisor, texted it to another, and emailed it to an attorney. Costanzo v. State, 152 So. 3d 737 (Fla. App. 4 DCA 2014).
In Costanzo, the Fourth District Court of Appeal reviewed Florida’s tampering statute, to reach its holding that section 918.13 requires destruction with intent to impair. “Merely discarding evidence from one’s person, without more does not amount to a violation of the statute.” Costanzo, 152 So. 3d at 738. The linchpin for the crime of tampering with evidence is “… some action designed to actually alter or destroy the evidence.” Id. at 738.
Costanzo articulates a common sense, bright light standard for tampering cases. Merely discarding information does not violate Florida’s tampering statute. There must be intent—some evidence that the information was deleted to impair its availability. That’s good news, which recognizes the reality that individuals in their daily lives routinely delete texts, videos, photos, and lots of other information from their cellular telephones.