Destroying evidence is legal all day long, even with the law waiting out front, unless some other precondition is attached to that evidence destroying. One thing that makes it illegal is (over-simplifying) destroying it when you knew you had a duty to retain it.
To the legal search example, suppose the police frequently stop by your house to discuss neighborhood gremlins. If they happened to accidentally see the boxes of evidence you'd be in trouble. You're allowed to destroy them though, and you might have a habit of destroying evidence for each of these gremlin chats. Doing so is legal.
Later, the police show up with a warrant (your example). If you think you're doing your normal gremlin evidence destroying and not blocking that warrant, destroying that evidence is still legal even with the police waiting on your porch to legally, forcibly search your house. The _intent_ behind your actions, at least in this case, is a core component of the crime.
Mind you, nobody will believe you, so you'll still have a hard time in court proving it (this is mildly in your favour because it's actually the prosecution's duty to prove your intent rather than your duty to prove lack of intent, but they're not exactly going to have a hard time convincing a jury that when you destroyed a bunch of evidence with police on your porch with a warrant it was because of that warrant), but it's still legal.
> 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.
The defendant need not know a matter was pending or within federal jurisdiction. Instead, the “knowingly” element refers only to the obstructive conduct. United States v. Moyer, 674 F.3d 192, 208 (3rd Cir. 2012). The federal nature of the statute’s prohibition is a jurisdictional requirement, but not a substantive element under Section 1519. United States v. McRae, 702 F.3d 806, 834 (5th Cir. 2012).
No nexus requirement. Given that an investigation or matter within federal jurisdiction need not be initiated or even pending at the time of the obstructive conduct, the government need not prove any connection between the alleged obstructive conduct and the federal matter. Moyer, at 209; United States v. Gray, 692 F.3d 514, 519-20 (6th Cir. 2012).
Materiality is not an element. As an example, falsification through omission from a log or report can support a conviction, without proof of the materiality of the omission. Powell, at 356; Moyer, at 207-08.
I'm curious if/why you think these considerations apply to this situation. This isn't a case of someone routinely destroying data and happening to do so right before a border check. Isn't this a case where the person wiping their phone right before a search, or actually tricking border patrol into wiping it, should know he had "a duty to retain it"?
Not necessarily, no, it's not clear that the person knew they had that duty. If you strongly believe the search is illegal, e.g. after being denied a lawyer, you might not think you're destroying evidence illegally.
Once police open an investigation or once there is a lawsuit served, destroying evidence relevant to that lawsuit is illegal.
The question here is whether the police were in investigation mode. I believe it is an overreach to claim that everybody at a border was going through an investigation. And it is also a overreach that everyone who is selected for search at the border is under investigation.
> 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.
The defendant need not know a matter was pending or within federal jurisdiction. Instead, the “knowingly” element refers only to the obstructive conduct. United States v. Moyer, 674 F.3d 192, 208 (3rd Cir. 2012). The federal nature of the statute’s prohibition is a jurisdictional requirement, but not a substantive element under Section 1519. United States v. McRae, 702 F.3d 806, 834 (5th Cir. 2012).
No nexus requirement. Given that an investigation or matter within federal jurisdiction need not be initiated or even pending at the time of the obstructive conduct, the government need not prove any connection between the alleged obstructive conduct and the federal matter. Moyer, at 209; United States v. Gray, 692 F.3d 514, 519-20 (6th Cir. 2012).
Materiality is not an element. As an example, falsification through omission from a log or report can support a conviction, without proof of the materiality of the omission. Powell, at 356; Moyer, at 207-08.
Whoever knowingly ... destroys ... any record ... or tangible object
with the intent to impede, obstruct, or influence
the investigation or proper administration of any matter ... or any case
or in relation to or contemplation of any such matter or case,
filed under title 11,
shall be fined under this title, imprisoned not more than 20 years, or both.
Wiping your phone at the border while relevant authority is searching for information under proper administration would constitute a violation.
OTOH, he did not wipe the phone himself, nor did he declare that entering a passcode would not wipe the phone but led the administration to wipe the phone. That is like setting up a booby trap that when a file drawer is opened, it would burn up, and the only way to open it would be through a side door.
No, "knowingly" destroying evidence associated with that investigation is illegal. After a lawsuit is served, yes, it's probably pretty easy to prove ill intent. Opening an investigation may or may not suffice, and whether the police were in investigation mode is not the whole question. The prosecution has many individual elements they need to prove, _including_ intent.
The exact way I did, with an additional clause afterward appropriately scoping the statement and thereby not stating something overly broad :) The point is that destroying evidence, by itself, is not a crime. Additional elements are required.
> irrelevant to some other question
That's true. I just saw something not quite true (your police on the porch example) and thought somebody might find the extra nuance interesting.
Interestingly, digital vs physical _does_ also matter a little in a few ways (e.g., whether it's even evidence in the first place if it's digital). However, as that's worked its way through the court system over the years, it is practically true that in most cases you're right, at least as it pertains to this charge AFAICT; digital evidence has similar properties to physical evidence in the eyes of the courts.
To the legal search example, suppose the police frequently stop by your house to discuss neighborhood gremlins. If they happened to accidentally see the boxes of evidence you'd be in trouble. You're allowed to destroy them though, and you might have a habit of destroying evidence for each of these gremlin chats. Doing so is legal.
Later, the police show up with a warrant (your example). If you think you're doing your normal gremlin evidence destroying and not blocking that warrant, destroying that evidence is still legal even with the police waiting on your porch to legally, forcibly search your house. The _intent_ behind your actions, at least in this case, is a core component of the crime.
Mind you, nobody will believe you, so you'll still have a hard time in court proving it (this is mildly in your favour because it's actually the prosecution's duty to prove your intent rather than your duty to prove lack of intent, but they're not exactly going to have a hard time convincing a jury that when you destroyed a bunch of evidence with police on your porch with a warrant it was because of that warrant), but it's still legal.