What Happens If I “Throw Away” the Drugs Before the Cops Search Me?

January 8th, 2019 by Tad Nelson in Drug Crime

You have probably seen movies or television shows where the cops are about to bust someone for drug possession, and the defendant quickly tries to get rid of the incriminating substance, i.e. flushes the cocaine down the toilet. In real life, if prosecutors can prove that you intentionally destroyed potential evidence of a drug crime, you can still be charged with a felony for that action alone. Under the Texas Penal Code, it is actually a third-degree felony to “alter, destroy, or conceal” any “thing” to prevent its use as evidence in a criminal investigation, assuming the defendant knows such an investigation is “pending or in progress.”

Appeals Court Upholds Conviction, 55-Year Sentence, Over Concealed Baggie

Here is an illustration of what these laws mean in practice. This is taken from a recent Texas appeals court decision, Lewis v. State. In November 2017, a Texas Department of Public Safety trooper was patrolling I-35 when he initiated a traffic stop. Initially, the officer was only interested in malfunctioning lights on the defendant’s truck. But as the trooper approached the vehicle, he said he “detected the odor of marijuana.”

The trooper asked the defendant to step outside his vehicle. The defendant complied and consented to a search of the truck. The officer located a plastic baggie containing methamphetamine. A second trooper also conducted a pat-down search of the defendant, which uncovered a second baggie that also later tested positive for methamphetamine.

But later, after reviewing a video recording of the stop, the trooper said it also appeared the defendant threw something on the ground just before the pat-down search. Based on the contents of the bag and the defendant’s own statements, the trooper said he believed the defendant dumped additional methamphetamine that was in the second baggie onto the ground. Neither officer, however, bothered to recover the dumped substance itself from the scene.

Nevertheless, a jury convicted the defendant of third-degree felony evidence tampering–i.e., that he “concealed or altered” the second baggie. The jury further determined the defendant was a “habitual felony offender” and sentenced him to 55 years in prison. On appeal, the defendant argued there was insufficient evidence that he “successfully” concealed or altered the baggie.

The Court of Appeals disagreed. According to the testimony of the officer who conducted the search, as he “began to pat down [the defendant], [the defendant] held the baggie behind his back and dumped out some of the contents.” Even “shielding” the baggie temporarily was sufficient to meet the standards for concealment under the evidence-tampering statute. Put another way, the appeals court said that “it is not necessary to show that an item was permanently concealed in order to support a tampering charge.”

Speak with a Houston Drug Crimes Defense Lawyer Today

If you are stopped by the police for any reason, remember you have the right not to answer questions or consent to a search of your vehicle. What you do not have the right to do is conceal anything that might be considered evidence of criminal activity. In most cases, your best bet is to remain silent and contact a qualified Houston criminal defense attorney as soon as possible. If you need immediate advice or assistance, call the Law Offices of Tad Nelson & Associates in League City or Galveston today.

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