Here are the risks – you risk Destruction of Evidence or Tampering with Evidence charges and, in some cases Obstruction of Justice charges. These charges can add SIGNIFICANT time to a sentence for the underlying charges (see below). Before a bust like that, the authorities have already documented everything they need to move forward with their case against you. Basically, surveillance has already documented whatever you tried to flush down the toilet or zap with the microwave. Take it or leave it, but those are the risks you face.
But They Always Do It In The Movies!
Example 1: Drugs
In the movies, it is all too common. You see some folks, maybe they are a couple in the midst of a post-coital moment enjoying a cigarette or maybe it’s 5 people at a table in a small drug sales outfit cutting their product, and the cops banging down the door. The police shout “POLICE, NOBODY MOVE” and a S.W.A.T. (Special Weapons And Tactics) team holds everyone at gunpoint until they are sure nobody has any guns or pointy objects within their reach. In the movies, you’ll also see at least one character, no matter whether it’s the couple or the sales outfit, grab as much contraband as possible and start flushing it down the toilet in the commotion. It sounds like a great idea: “They can’t charge me without evidence! Muahahahahaha!”
Example 2: Electronic Storage (flash drives and hard drives)
For the more computer-inclined of us, the scene might play out in this way: Say our subject, we’ll call him Tron, is running a jackpot scam on cash-machines and is recruiting folks in other states to work with him. Tron is doing well for himself. Lots of money. Then one day, the front door is broken down by police in a raid and Tron tries to destroy his flash-drives and computers in a hurry so there is no evidence to charge him with (other than the banker’s boxes of cash floating around his apartment). What does he do? That’s right! He pops those little flash drives in the microwave and hits DEFROST like his life depends on it. Keep in mind, that in terms of computer security, generally speaking people are better off pulverizing flash drives with large hammers or dissolving them in acid (never mind the noxious fumes or the fact that you’d need to get the CORRECT acid to destroy the little electronic storage thinga-jiggers). Other than a broken microwave (the flash drives will destroy your microwave) and some melted plastic, what has Tron gotten himself?
Do our couple, the group, and Tron all win?!
Your best bet is to try and not get shot during the raid and be super cooperative with your attorney. The more honest and cooperative you are with your lawyer the better off you’ll be because your attorney won’t be surprised by anything the Prosecutor comes out with and will be prepared to answer the accusations. There are certain risks in trying to throw off the prosecutor by destroying, tampering with, or covering up evidence. I am qualified to let you know what the federal law is and what the law is in the states where I am licensed. I am not telling you what your US State or Territory law is outside of what is below.
The federal statute is 18 USC 1519 – Destruction, alteration, or falsification of records in Federal investigations and bankruptcy;
Michigan statute is MCL 750.483a – Prohibited acts; penalties; “retaliate,”“official proceeding,” and “threaten or intimidate” defined; and
Alaska statute is AS 11.56.610 – Tampering With Physical Evidence.
But Is That Better Or Worse?
The long and short is that these charges are no joke. The Federal statute, for instance, can score the Accused another 20 years in prison! There is also a great article on Obstruction of Justice (which is really an umbrella term for six different offenses) available, written by the Congressional Research Service if you can muster the energy to pound through all 89 riveting pages. That said, let’s break down this unusually short Federal statute for Tampering for a second. Here it is verbatim:
Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both.
That covers a lot of territory. Attempting to destroy a flash drive with incriminating data on it to throw off an investigation will result in more charges and possibly more time; LET ME REPEAT possibly an extra 20 years. So there are two major parts here:
- knowingly destroy, etc… could mean throwing it away, but not an accidental throwing away or destruction
- With the intent to impede, etc… means that your purpose in destroying etc is to throw off the investigation.
Those are the key phrases in that statute and together they mean that if you knowingly delete, destroy, or shred something but did not know it was involved with or impede an investigation (and can prove it), there is a good chance the charges for Tampering do not apply.
So What Is The Answer Then?
The urge to get rid of the physical stuff that connects you with illegal activity is strong. I would not advise to do it. But, you are going to do what you are going to do and if you do decide to try and cover your tracks, know the risk - a maximum of 20 years in the clink, on top of whatever the underlying charges are.
Your odds are better in Court if you proceed with the advice in the Police Shootings article I wrote and then spill your guts to your attorney. Remember, the lawyer is only as good as the information you provide her/him, so don’t hold back when talking with your her/him. That includes letting the lawyer know if you could not resist the urge to “tamper” with the evidence. Your conversations with your lawyer are confidential.
Please see my article on how to choose your attorney; basically, it boils down to whoever you are comfortable confiding in and someone who will be responsive to your suggestions and update-requests.