Garrity Case: Demonstrating the Need
for Clarity During Investigations
Aaron Nisenson, General
Counsel IUPA
October 20, 2006
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.
Aaron Nisenson
General Counsel
I.U.P.A.
Office: 800-247-4872
Cell: 202-441-5334
Fax: 941-487-2570
