Garrity Case Demonstrating the Need for Clarity During Investigations
Aaron Nisenson, General Counsel IUPA
The United States District Court in Florida recently issued a decision illustrating why it is essential for officers to be clear on whether they are being interviewed as part of a criminal investigation or as part of internal affairs investigation. U.S. v. Green, 2006 WL 2947830 (M.D. Fl. Oct. 16, 2006).
In this case, the Officer was called in for questioning regarding a child pornography case. The Officer was questioned by Detectives who read the Officer his Miranda rights. The Officer waived his Miranda rights and responded to questions. However, the Detective “did not tell the Defendant at the outset of the interview that it was a criminal investigation. He did state that as a ‘courtesy’ he was giving the Defendant his Miranda warnings. The questions concerning any criminal activity began after an hour of questioning.” Further, the Court found that the Department never told the Officer it was conducting a criminal inquiry.
There was a dispute on one key point. The Officer asserted he was told that he “had to speak to investigators or else he would lose his job.” The Department denied ever threatening the Officer. After reviewing the testimony and the audio tapes of the interviews, the Court found that none of the departmental officials told the Officer he would lose his job if he cooperated.
Ultimately, the Court found that the statements were not protected by Garrity. The Court recognized the clearly established Garrity rule that Officers cannot be terminated for refusing to waive Miranda rights, and that statements given under threat of termination are coerced and must be suppressed. In determining whether the latter occurred, the Court set forth the familiar Garrity standard:
Before determining whether a police officer's testimony is coerced, the officer must show that he "subjectively believed that he would lose his job if he refused to answer questions and that his belief was objectively reasonable." United States v. Waldon, 363 F.3d 1103, 1112 (11th Cir.2004), citing United States v. Vangates, 287 F.3d 1315, 1322 (11th Cir.2002)). To show that a subjective belief is objectively reasonable, the officer must show that his belief derived from the actions of the governmental entity. Id.
The Court accepted for the sake of argument that the Officer subjectively believed that he was compelled to respond. However, the Court then ruled that
the Defendant's subjective belief that he would lose his job if he did not cooperate was not objectively reasonable. Objectively, the Defendant should have known that he was not in an administrative investigation, and that he was in fact, in a criminal investigation. The Court determines that the Defendant had the choice whether to cooperate with the investigators and waive his Fifth Amendment rights to self-incrimination or remain silent.
This case illustrates several very important points
1) Officers called in for questioning should clearly understand, and should confirm with the Departmental officials, whether the questioning is conducted as part of a criminal investigation or an internal investigation.
2) If Officers are EVER read Miranda rights, they must be extremely careful. Officers should understand that in most jurisdictions, if they give statements after voluntarily waiving their Miranda rights, these statements can be used in both a criminal and departmental proceedings.
3) Whenever Miranda rights have been read, Officers should clarify whether they will be subject to discipline if they exercise their Miranda rights.
4) If there are ever threats of termination or punishment, these threats should be repeated and confirmed on the record, preferably both in writing and on tape in a section that cannot be “accidentally” erased (for example, after the official interview has actually started).
5) Finally, if Officers are actually threatened that if they do not waive Miranda they will be terminated, the Officers could challenge either outcome: if they are terminated they can contest the termination; and if they give the statement they can move to suppress the use of the statement in a criminal trial. However, it is generally easier to overturn a termination for refusal to waive Miranda, than it is to suppress a statement that was made after Miranda rights were waived. In addition, as this case illustrates, the Officer must be able to prove that there was a real threat.
Since this is such an important issue for Officers, they need to be clearly aware of their rights in such investigations. Further, sometimes there are local variations on the law in this area, and locals and their members should consult with local counsel regarding the law in their jurisdiction.