Oct 13 2015, 5:38 am
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
John F. Kautzman Gregory F. Zoeller
Ruckelshaus, Kautzman, Blackwell, Attorney General of Indiana
Bemis & Hasbrook
Indianapolis, Indiana Ian McLean
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Scott A. Criswell, October 13, 2015
Appellant-Defendant, Court of Appeals Case No.
02A03-1501-CR-22
v. Interlocutory Appeal from the
Allen Superior Court
State of Indiana, The Honorable Richard W.
Appellee-Plaintiff Karcher, Judge
Trial Court Cause No.
02D04-1405-CM-2055
Bradford, Judge.
Case Summary
[1] At all times relevant to this appeal, Appellant-Defendant Scott Criswell was a
Sergeant with the Fort Wayne Police Department (“FWPD”). Criswell
Court of Appeals of Indiana | Opinion 02A03-1501-CR-22 | October 13, 2015 Page 1 of 26
attended a party at the home of another Fort Wayne police officer on August
10, 2013. While at the party, Criswell and the wives of two other Fort Wayne
police officers are alleged to have forcibly entered a nearby home and removed
certain items from the property. As part of a subsequent internal investigation
by the FWPD, Criswell gave a statement regarding the events in question after
signing a document which indicated that any statements made would not be
used against him in any potential subsequent criminal action.
[2] In May of 2014, Appellee-Plaintiff the State of Indiana (the “State”) charged
Criswell with Class A misdemeanor criminal conversion and Class A
misdemeanor criminal trespass. Criswell subsequently filed a motion to dismiss
and/or suppress, arguing that the criminal charges against him should be
dismissed because the charges were brought in violation of his Fifth
Amendment privilege against self-incrimination, as well as the legal protections
enunciated by the United States Supreme Court in Garrity v. New Jersey, 385
U.S. 493 (1967), and Kastigar v. United States, 406 U.S. 441 (1972).
Alternatively, Criswell argued that his statement and any evidence derived from
his statement should be suppressed. Following a hearing, the trial court denied
Criswell’s motion.
[3] Concluding that the trial court abused its discretion in denying Criswell’s
motion to suppress, we reverse the ruling of the trial court. We remand the
matter to the trial court with instructions for the trial court to grant Criswell’s
motion to suppress his statement as well as any other evidence that was directly
or indirectly derived from the statement.
Court of Appeals of Indiana | Opinion 02A03-1501-CR-22 | October 13, 2015 Page 2 of 26
Facts and Procedural History
[4] On August 10, 2013, Criswell attended a party at the home of FWPD Detective
Scott Tegtmeyer and his wife, Heather (“Tegtmeyer”). After arriving at the
party, it is alleged that Criswell went with Tegtmeyer and Patricia Sabo
(“Sabo”), the wife of yet another FWPD officer, to a nearby home which was
the subject of a foreclosure. Once at the home, Criswell, Tegtmeyer, and Sabo
are alleged to have forcibly entered the home. They are also alleged to have
removed a chainsaw and some gas cans from the property. The alleged home
invasion and theft was subsequently reported to the Allen County Police
Department (“ACPD”). ACPD Detective John Zagelmeier was assigned to
investigate the alleged home invasion and theft.
[5] On November 1, 2013, Russell York, the Chief of Police for the FWPD, filed a
request for an internal investigation into the events that occurred on August 10,
2013. Before Criswell agreed to cooperate with the internal investigation,
Criswell was presented with a document entitled “GARRITY NOTICE” which
read as follows:
You are being questioned as part of an official internal affairs
investigation by the [FWPD]. You will be asked questions
specifically directed and related to the performance of your
official duties or fitness for office. You are entitled to all the
rights and privileges guaranteed by the laws of the Constitution
of this State and the Constitution of the United States and the
applicable collective bargaining agreements with the City of Fort
Wayne. If you refuse to testify or to answer questions relating to
the performance of your official duties or fitness for duty you will
be subject to departmental charges that could result in your
Court of Appeals of Indiana | Opinion 02A03-1501-CR-22 | October 13, 2015 Page 3 of 26
dismissal from this agency. Your statements and any
information or evidence that is gained by reason of such
statements cannot be used against you in any subsequent
criminal proceedings, (except for perjury or obstruction of justice
charges). These statements may be used against you in relation
to subsequent departmental charges. The fruits of this
investigation may be disclosed in civil litigation.
Defendant’s Collective Exhibit, Exhibit B. Criswell signed the GARRITY
NOTICE, agreed to participate in an internal affairs interview, and gave a
compelled statement.
[6] During Criswell’s internal affairs interview, which was conducted by FWPD
Sergeant Jim Seay, the following exchange took place:
Sgt. Seay: Okay, Sergeant Criswell, have you had the
opportunity to read your Garrity Rights?
Sgt. Criswell: Yes sir.
Sgt. Seay: Okay. And have you had the opportunity to read
the allegation against you?
Sgt. Criswell: Yes sir.
Sgt. Seay: Okay. And you understand you’re being ordered to
answer the questions truthfully?
Sgt. Criswell: Yes sir.
Sgt. Seay: Okay. And you’re waiving your right to any union
or legal representation at this time?
Sgt. Criswell: Yes sir.
****
St. Seay: The allegation, as you know, is a [sic]
Administrative Felony, which means that the, we’ve had, I guess
I’d call it hearsay at this point, that you’re involved in [an]
activity that might be considered a felony if it were investigated
criminally. It stems from a, going into a house while you were at
Court of Appeals of Indiana | Opinion 02A03-1501-CR-22 | October 13, 2015 Page 4 of 26
[a] party that happened earlier this year. I think it was the second
week of August.
Sgt. Criswell: I believe so. I was trying to figure out the
date. In the … I believe the letter said August 10.
Defendant’s Collective Exhibit, Exhibit C (last ellipsis in original).
[7] Although he initially suspected the victim’s ex-husband, Detective Zagelmeier
eventually learned of Criswell’s potential involvement in the alleged home
invasion and theft. As part of Detective Zagelmeier’s investigation, the State
requested a subpoena for the production of:
ANY AND ALL INFORMATION PERTAINING TO the
internal affairs investigation involving Ed Sabo (Patricia Sabo),
Scott Criswell, and Scott Tegtmeyer (Heather Tegtmeyer) for an
incident from 8/10-8/11, 2013 in the 8600 block of Frazier Road,
Allen County. These records should include all reports, any
other documents, and copies of interviews.
Defendant’s Collective Exhibit, Exhibit D. The trial court granted the State’s
request.
[8] On May 24, 2014, the State charged Criswell with Class A misdemeanor
criminal conversion and Class A misdemeanor criminal trespass. On August
11, 2014, Criswell filed a motion to dismiss and/or suppress, arguing that the
criminal charges against him should be dismissed because the charges were
brought in violation of his Fifth Amendment privilege against self-
incrimination, as well as the legal protections enunciated by the United States
Court of Appeals of Indiana | Opinion 02A03-1501-CR-22 | October 13, 2015 Page 5 of 26
Supreme Court in Garrity and Kastigar. Following a hearing, the trial court
denied Criswell’s motion. This interlocutory appeal follows.
Discussion and Decision
[9] Again, Criswell filed a motion before the trial court which requested that the
trial court dismiss the charges brought against him or, alternatively, suppress
any and all evidence derived from his compelled statement. On appeal,
Criswell contends that the trial court erred in denying this motion. Specifically,
Criswell contends that the trial court erred in denying his motion in light of the
Supreme Court’s decision in Garrity. For its part, the State argues that the trial
court properly denied Criswell’s motion because Garrity does not apply to the
instant matter. The State alternatively argues that even if Garrity applies, the
trial court properly denied Criswell’s motion because it met its requirement of
proving that it had an independent, legitimate source for the evidence at issue.
I. Standard of Review
[10] “We review a trial court’s denial of a motion to dismiss for an abuse of
discretion.” Lebo v. State, 977 N.E.2d 1031, 1035 (Ind. Ct. App. 2012) (citing
Delagrange v. State, 951 N.E.2d 593, 594 (Ind. Ct. App. 2011), trans. denied).
Likewise, the admissibility of evidence is within the sound discretion of the trial
court, and we will not disturb the decision of the trial court absent a showing of
abuse of that discretion. Smith v. State, 780 N.E.2d 1214, 1216 (Ind. Ct. App.
2003) (citing Gibson v. State, 733 N.E.2d 945, 951 (Ind. Ct. App. 2000)).
Accordingly, in both situations we will reverse a trial court’s ruling on the
Court of Appeals of Indiana | Opinion 02A03-1501-CR-22 | October 13, 2015 Page 6 of 26
admissibility of evidence only when the trial court abused its discretion.
Washington v. State, 784 N.E.2d 584, 587 (Ind. Ct. App. 2003) (citing Bradshaw
v. State, 759 N.E.2d 271, 273 (Ind. Ct. App. 2001)). An abuse of discretion
involves a decision that is clearly against the logic and effect of the facts and
circumstances before the court. Id. (citing Huffines v. State, 739 N.E.2d 1093,
1095 (Ind. Ct. App. 2000)).
[11] Further, we review the denial of a motion to suppress in a manner similar to
other sufficiency matters. Overstreet v. State, 724 N.E.2d 661, 663 (Ind. Ct. App.
2000), trans. denied. We do not reweigh the evidence, and we consider
conflicting evidence most favorable to the trial court’s ruling. Id. However,
unlike the typical sufficiency of the evidence case where only the evidence
favorable to the judgment is considered, we must also consider the uncontested
evidence favorable to the defendant. Id.
II. Overview of Garrity and its Progeny
[12] In Garrity, the United States Supreme Court considered a case involving police
officers who were being investigated for allegedly fixing traffic tickets. 385 U.S.
at 494. Before being questioned, each of the officers involved was warned that
anything he said might be used against him in potential subsequent state
criminal proceedings, that he had the privilege to refuse to answer if the
disclosure would tend to incriminate himself, but that if he refused to answer,
he would be subject to removal from office. Id. Each of the officers then
answered the investigators’ questions without being granted immunity. Id. at
Court of Appeals of Indiana | Opinion 02A03-1501-CR-22 | October 13, 2015 Page 7 of 26
495. Some of the officers’ responses to the investigators’ questions were indeed
used against the officers in subsequent criminal prosecutions for conspiracy to
obstruct the administration of traffic laws. Id. The officers were convicted and
their convictions upheld despite the officers’ assertions that “their statements
were coerced, by reason of the fact that, if they refused to answer, they could
lose their positions with the police department.” Id. (footnote omitted).
[13] Upon review, the Supreme Court noted as follows:
The choice given [the officers] was either to forfeit their jobs or to
incriminate themselves. The option to lose their means of
livelihood or to pay the penalty of self-incrimination is the
antithesis of free choice to speak out or to remain silent. That
practice, like interrogation practices we reviewed in Miranda v.
State of Arizona, 384 U.S. 436, 464-465, 86 S.Ct. 1602, 1623, 16
L.Ed.2d 694, is ‘likely to exert such pressure upon an individual
as to disable him from making a free and rational choice.’ We
think the statements were infected by the coercion inherent in
this scheme of questioning and cannot be sustained as voluntary
under our prior decisions.
Id. at 497-98 (footnote omitted). The Supreme Court further noted that the
question before the Court was whether a State, contrary to the requirement of
the Fourteenth Amendment, could use the threat of discharge to secure
incriminatory evidence against an employee. Id. at 499. Concluding that
policemen were not relegated to a watered-down version of constitutional
rights, the Supreme Court stated that “[t]here are rights of constitutional stature
whose exercise a State may not condition by the exaction of a price.” Id. at
500. The Supreme Court went on to state the following:
Court of Appeals of Indiana | Opinion 02A03-1501-CR-22 | October 13, 2015 Page 8 of 26
We now hold the protection of the individual under the
Fourteenth Amendment against coerced statements prohibits use
in subsequent criminal proceedings of statements obtained under
threat of removal from office, and that it extends to all, whether
they are policemen or other members of our body politic.
Id.
[14] In Atwell v. Lisle Park District, 286 F.3d 987 (7th Cir. 2002), the United States
Court of Appeals for the Seventh Circuit (the “Seventh Circuit”) reiterated that
The government is not allowed to force a person to make a
statement, even out of court, that might be used as evidence that
he had committed a crime. It is not even allowed to pressure him
into cooperating by threatening to fire him (if he’s a government
employee) for his refusing to provide such evidence. Gardner v.
Broderick, 392 U.S. 273, 276, 278-79, 88 S.Ct. 1913, 20 L.Ed.2d
1082 (1968); Chan v. Wodnicki, 123 F.3d 1005, 1009 (7th Cir.
1997); Lenard v. Argento, 699 F.2d 874, 896 (7th Cir. 1983). It has
every right to investigate allegations of misconduct, including
criminal misconduct by its employees, and even to force them to
answer questions pertinent to the investigation, but if it does that
it must give them immunity from criminal prosecution on the
basis of their answers. Lefkowitz v. Cunningham, 431 U.S. 801,
806, 97 S.Ct. 2132, 53 L.Ed.2d 1 (1977); Gardner v. Broderick,
supra, 392 U.S. at 276, 88 S.Ct. 1913; Chan v. Wodnicki, supra, 123
F.3d at 1009. Nor can the federal government use those answers
to assist it in its own prosecution of the person. Murphy v.
Waterfront Commission, 378 U.S. 52, 79-80 and n. 18, 84 S.Ct.
1594, 12 L.Ed.2d 678 (1964); United States v. Balsys, 524 U.S. 666,
683, 118 S.Ct. 2218, 141 L.Ed.2d 575 (1998).
Atwell, 286 F.3d at 990. The Seventh Circuit has also reiterated that the
government bears the burden of proving “that the evidence it proposes to use is
Court of Appeals of Indiana | Opinion 02A03-1501-CR-22 | October 13, 2015 Page 9 of 26
derived from a legitimate source wholly independent of the compelled
testimony.” U.S. v. Cozzi, 613 F.3d 725, 732 (7th Cir. 2010) (internal quotations
omitted); see also Kastigar, 406 U.S. at 460.
III. Whether Garrity Applies to the Instant Matter
[15] At the outset, it is important to note the “well-settled rule that men and women
do not surrender their freedoms when joining the police force.” Driebel v. City of
Milwaukee, 298 F.3d 622, 637 (7th Cir. 2002).
We have previously commented that “[a] trustworthy police
force is a precondition of minimal social stability in our imperfect
society,” Shields v. Burge, 874 F.2d 1201, 1204 (7th Cir. 1988),
and that “[t]he public, including fellow law enforcement agents,
expects that police officers will not violate the laws they are
charged with enforcing.” United States v. Lamb, 6 F.3d 415, 419
(7th Cir. 1993).
Id. at 638. However,
“policemen, like teachers and lawyers, are not relegated to a
watered-down version of constitutional rights.” [Garrity, 385
U.S. at 500]. At the same time, we hasten to emphasize that
nothing in the Fourth Amendment endows public employees
with greater workplace rights than those enjoyed by their
counterparts in the private sector. Thus, in cases involving the
constitutional rights of police officers, courts must distinguish
between a police department’s actions in its capacity as an
employer and its actions as the law enforcement arm of the state.
See [Lefkowitz, 431 U.S. 801, 97 S.Ct. 2132, 53 L.Ed.2d 1];
Uniformed Sanitation Men Ass’n v. Commissioner, 392 U.S. 280, 88
S.Ct. 1917, 20 L.Ed.2d 1089 (1968); [Gardner, 392 U.S. 273];
Garrity, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562; [Atwell, 286
Court of Appeals of Indiana | Opinion 02A03-1501-CR-22 | October 13, 2015 Page 10 of 26
F.3d 987]; Confederation of Police v. Conlisk, 489 F.2d 891 (7th Cir.
1973).
Id. at 637.
A. Overview of Limitations on Application of Garrity
1. Garrity Not Implicated When the Threat of Severe Employment Sanctions
Is Too Conditional
[16] In United States v. Palmquist, 712 F.3d 640 (1st Cir. 2013), the United States
Court of Appeals for the First Circuit (the “First Circuit”) acknowledged that
Garrity provides that “[w]hen an employee faces the choice ‘between self-
incrimination and job forfeiture,’ the Court ruled, his statements are deemed
categorically coerced, involuntary, and inadmissible in subsequent criminal
proceedings.” Palmquist, 712 F.3d at 645 (quoting Garrity, 385 U.S. at 496-97).
However, the First Circuit held that “Garrity immunity is contingent upon the
degree of certainty that an employee’s silence alone will subject the employee to
severe employment sanctions.” Id. The First Circuit explained that “[s]o, for
example, potentially unfavorable inferences drawn from an employee’s silence,
which serve as one factor in adverse employment action against him, have been
found ‘too conditional’ a threat to trigger Garrity immunity. Id. (quoting U.S. v.
Stein, 233 F.3d 6, 14 & 16 (1st Cir. 2000) (distinguishing “the threat of
automatic loss of one’s livelihood and the threat of an inference that might lead
to such a loss”)).
[17] In Palmquist, the notice signed by the employee read as follows:
Court of Appeals of Indiana | Opinion 02A03-1501-CR-22 | October 13, 2015 Page 11 of 26
If you refuse to answer the questions posed to you on the
grounds that the answers may tend to incriminate you, you
cannot be removed (fired) solely for remaining silent; however,
your silence can be considered in an administrative proceeding
for any evidentiary value that is warranted by the facts
surrounding your case.
[18] 712 F.3d at 644. Upon review of the facts presented before the court on appeal,
the First Circuit found that nothing said or presented to the Appellant “could
have led [the Appellant] to believe that, if he remained silent, he would
automatically lose his job or suffer similarly severe employment consequences
solely for having remained silent.” Id. at 645. The First Circuit also noted that
the Advisement of Rights that was presented to the Appellant expressly
informed the Appellant “that he could not be fired solely for refusing to
participate in the interview, although his silence could be used as evidence in an
administrative proceeding.” Id. The First Circuit concluded that “the
consequences of such a use of [the Appellant’s] silence are too conditional to be
deemed coercive, and, as a result, Garrity did not apply. Id.
2. Garrity Not Implicated When Subjected to Dismissal after Refusing to
Answer Questions Relating to Performance of Official Duties
[19] In Uniformed Sanitation Men and its companion case, Gardner, the Supreme
Court held it does not violate Garrity when, after proper proceedings, public
employees are subjected to dismissal for refusing to account for their
performance of their official duties so long as the proceedings did not involve
an attempt to coerce the public employees to relinquish their constitutional
rights against self-incrimination in potential future criminal proceedings. See
Court of Appeals of Indiana | Opinion 02A03-1501-CR-22 | October 13, 2015 Page 12 of 26
Uniformed Sanitation Men, 392 U.S. at 284-85. Stated differently, it does not
violate Garrity if public employees are subjected to dismissal for refusing to
account for their performance so long as the public employees are not required
to waive their immunity with respect to the use of their answers or the fruits
thereof in a future criminal prosecution. See Gardner, 392 U.S. at 278. In
reaching this conclusion, the Supreme Court provided as follows:
As we stated in [Gardner, 392 U.S. at 278], if New York had
demanded that petitioners answer questions specifically, directly,
and narrowly relating to the performance of their official duties
on pain of dismissal from public employment without requiring
relinquishment of the benefits of the constitutional privilege, and
if they had refused to do so, this case would be entirely different.
In such a case, the employee’s right to immunity as a result of his
compelled testimony would not be at stake. But here the precise
and plain impact of the proceedings against petitioners as well as
of s 1123 of the New York Charter was to present them with a
choice between surrendering their constitutional rights or their
jobs. Petitioners as public employees are entitled, like all other
persons, to the benefit of the Constitution, including the privilege
against self-incrimination. [Gardner, 392 U.S. at 277-78];
[Garrity, 385 U.S. at 500]. Cf. [Murphy, 378 U.S. at 79]. At the
same time, petitioners, being public employees, subject
themselves to dismissal if they refuse to account for their
performance of their public trust, after proper proceedings, which
do not involve an attempt to coerce them to relinquish their
constitutional rights.
Uniformed Sanitation Men, 392 U.S. at 284-85.
[20] The holdings in Uniformed Sanitation Men and Gardner were reiterated by the
United States Court of Appeals for the Fourth Circuit (the “Fourth Circuit”) in
Court of Appeals of Indiana | Opinion 02A03-1501-CR-22 | October 13, 2015 Page 13 of 26
Wiley v. Mayor and City of Baltimore, 48 F.3d 773 (1995). In Wiley, the Fourth
Circuit stated that “the state may compel job-related testimony from an
employee in the course of a criminal investigation, provided, of course, that the
state does not make direct or derivative use of the employee’s statement against
the employee in any criminal proceeding.” Id. at 777.
B. Analysis
[21] Again, before answering any questions relating to the events that occurred on
August 10, 2013, Criswell signed a document entitled “GARRITY NOTICE.”
Defendant’s Collective Exhibit, Exhibit B. The GARRITY NOTICE read as
follows:
You are being questioned as part of an official internal affairs
investigation by the Fort Wayne Police Department. You will be
asked questions specifically directed and related to the
performance of your official duties or fitness for office. You are
entitled to all the rights and privileges guaranteed by the laws of
the Constitution of this State and the Constitution of the United
States and the applicable collective bargaining agreements with
the City of Fort Wayne. If you refuse to testify or to answer questions
relating to the performance of your official duties or fitness for duty you
will be subject to departmental charges that could result in your dismissal
from this agency. Your statements and any information or
evidence that is gained by reason of such statements cannot be
used against you in any subsequent criminal proceedings, (except
for perjury or obstruction of justice charges). These statements
may be used against you in relation to subsequent departmental
charges. The fruits of this investigation may be disclosed in civil
litigation.
Court of Appeals of Indiana | Opinion 02A03-1501-CR-22 | October 13, 2015 Page 14 of 26
Defendant’s Collective Exhibit, Exhibit B (emphasis added). After signing the
GARRITY NOTICE, Criswell agreed to participate in an internal affairs
interview.
[22] The State claims that, similar to Palmquist, Garrity should not apply to the
instant matter because the above-quoted language was too conditional to be
deemed coercive as it did not indicate that if Criswell remained silent, Criswell
would automatically lose his job or suffer similarly sever employment
consequences. Again, in Palmquist, the notice signed by the employee expressly
stated that the employee could not be fired solely for remaining silent. 712 F.3d
at 644. This was an important factor considered by the First Circuit in reaching
its determination that nothing said or presented to the Appellant “could have
led [the Appellant] to believe that, if he remained silent, he would automatically
lose his job or suffer similarly severe employment consequences solely for
having remained silent.” 712 F.3d at 645.
[23] Unlike the notice signed by the employee in Palmquist, the language of the
GARRITY NOTICE signed by Criswell expressly stated that a refusal to testify
would subject Criswell to departmental charges that could result in termination
of his employment. Again, the language of the GARRITY NOTICE signed by
Criswell indicated that “[i]f you refuse to testify or to answer questions relating
to the performance of your official duties or fitness for duty you will be subject to
departmental charges that could result in your dismissal from this agency.” Defendant’s
Collective Exhibit, Exhibit B (emphasis added). This language is more
definitive than the language at issue in Palmquist, and is sufficient to lead
Court of Appeals of Indiana | Opinion 02A03-1501-CR-22 | October 13, 2015 Page 15 of 26
Criswell to believe that he would lose his job or suffer similarly severe
employment consequences if he were to remain silent.
[24] Alternatively, the State claims that Garrity should not apply because Criswell
“was never asked to waive his Fifth Amendment privilege.” Appellant’s Br. p.
19. While the record might not include proof of an explicit request that
Criswell waive his Fifth Amendment privilege, one may arguably infer from the
record that Criswell was, at least implicitly, asked to waive his Fifth
Amendment privileges and that he did so when he agreed to sign the
GARRITY NOTICE and to cooperate with the internal investigation.
[25] The State points to language contained in the GARRITY NOTICE signed by
Criswell that explicitly states that Criswell’s statements “and any information or
evidence that is gained by reason of such statements cannot be used against you
in any subsequent criminal proceedings” as proof that Criswell did not waive
his Fifth Amendment privilege. Defendant’s Collective Exhibit, Exhibit B.
However, contrary to the State’s assertion, it seems to us that this language
supports the opposite inference, i.e., that Criswell did waive his Fifth
Amendment privilege after being assured that any incriminating statements he
made could not be used against him in any subsequent potential criminal
action. It is also of intrigue that, arguably, the State is trying to do exactly what
the notice prohibits, i.e., use information or evidence gained or derived from
Criswell’s statements against him in subsequent criminal proceedings. Again,
this is the exact state action which Garrity protects against.
Court of Appeals of Indiana | Opinion 02A03-1501-CR-22 | October 13, 2015 Page 16 of 26
[26] In sum, the record reveals that Criswell participated in the internal affairs
interview after being (1) notified that his failure to cooperate could result in the
termination of his employment and (2) assured, in writing, that any statements
he made could not be used against him in any potential subsequent criminal
proceedings. Upon review, we conclude that Garrity applies to the instant
matter.1 Accordingly, we conclude that the trial court abused its discretion in
denying Criswell’s motion to suppress his statement.
III. Whether the State’s Evidence is Wholly Independent
of Criswell’s Statement
[27] Criswell also contends that the State failed to prove that the evidence it intends
to present at trial is wholly independent of his statement. Specifically, Criswell
argues that State’s act of exposing Tegtmeyer and Sabo to the information from
Criswell’s compelled statement during their interviews with Detective
Zagelmeier completely and utterly taints any future testimony by these
witnesses. For its part, the State argues that it met its burden of proving that its
evidence either was, or would have been, discovered independently of
1
We note that although the State argued on appeal that Garrity does not apply to the instant
matter, the State arguably conceded before the trial court that Garrity applied. In responding to
Criswell’s motion to dismiss/suppress, the State stated that “The State admits that, pursuant to
[Garrity], Defendant’s own statement made in the course of an internal affairs investigation
(hereinafter “I.A. statement”) cannot be used against him in this criminal proceeding.”
Appellant’s Supp. App. p. 32. Additionally, during the October 16, 2014 hearing on Criswell’s
motion, the State indicated that the question before the trial court was not whether Garrity
applied to Criswell’s statement to Sergeant Seay but rather “just how far does Garrity go.” Tr.
p. 14.
Court of Appeals of Indiana | Opinion 02A03-1501-CR-22 | October 13, 2015 Page 17 of 26
Criswell’s compelled statement. In support, the State claims that the record
demonstrates that it had knowledge of the identity of the participants prior to
the date that it sought to subpoena the internal investigation records, and
employed a logical, natural, and routine course when interviewing Tegtmeyer
and Sabo.
A. Overview of Law Relating to Whether Evidence Is Found
to Have Been Derived from a Wholly Independent Legitimate
Source
[28] In Kastigar, the Supreme Court noted that the Fifth Amendment privilege
against self-incrimination “has never been construed to mean that one who
invokes it cannot subsequently be prosecuted.” 406 U.S. at 453.
Its sole concern is to afford protection against being forced to
give testimony leading to the infliction of penalties affixed to . . .
criminal acts. Immunity from the use of compelled testimony, as
well as evidence derived directly and indirectly therefrom, affords
this protection. It prohibits the prosecutorial authorities from
using the compelled testimony in any respect, and it therefore
insures that the testimony cannot lead to the infliction of criminal
penalties on the witness.
Id. (footnote and internal quotation marks omitted).
[29] Again, in cases where Garrity applies, the government bears the burden of
proving “that the evidence it proposes to use is derived from a legitimate source
wholly independent of the compelled testimony.” Cozzi, 613 F.3d at 732
(internal quotations omitted); see also Kastigar, 406 U.S. at 460. The Seventh
Court of Appeals of Indiana | Opinion 02A03-1501-CR-22 | October 13, 2015 Page 18 of 26
Circuit discussed the government’s burden in this regard in United States v.
Velasco, 953 F.2d 1467 (7th Cir. 1992). In Velasco, the Seventh Circuit held as
follows:
The burden on the prosecution to establish an independent
source for evidence against a defendant is a heavy one indeed,
but we decline to make it an impossible one to bear. We adopt
the position of [United States v. Mariani, 851 F.2d 595 (2d Cir.
1988)], and cases following, that the mere tangential influence
that privileged information may have on the prosecutor’s thought
process in preparing for trial is not an impermissible “use” of that
information. United States v. Schwimmer, 924 F.2d 443, 446 (2d
Cir.), cert. denied, 502 U.S. 810, 112 S.Ct. 55, 116 L.Ed.2d 31
(1991) (citing Mariani, 851 F.2d at 600). See also United States v.
Rivieccio, 919 F.2d 812, 815 (2d Cir. 1990), cert. denied, 501 U.S.
1230, 111 S.Ct. 2852, 115 L.Ed.2d 1020 (1991); [United States v.
Serrano, 870 F.2d 1, 17-18 (1st Cir. 1989)].
953 N.E.2d at 1474. The Seventh Circuit has further held:
There is no question that Kastigar bars not only evidentiary use of
compelled testimony but also non-evidentiary, or derivative, use
of the same. At issue here is the scope of derivative-use
immunity. The case law does not say that a defendant’s
immunized statements may never be used by anyone under any
circumstances. Garrity, for example, clearly contemplated that
the officers’ compelled testimony could be used for internal
investigation purposes. 385 U.S. at 500, 87 S.Ct. 616 (noting that
the Fourteenth Amendment only prohibited the use of coerced
statements in “subsequent criminal proceedings”).
Cozzi, 613 F.3d at 730.
Court of Appeals of Indiana | Opinion 02A03-1501-CR-22 | October 13, 2015 Page 19 of 26
[30] There is no question that the FWPD was well within the bounds of the law to
compel Criswell’s testimony and use it for its own limited internal investigation.
“The question, then, is not simply whether the statements were used; rather, the
constitutional guarantee that a defendant be free from compelled self-
incrimination is concerned with how and by whom the statements are used.” Id.
(emphases in original).
B. Analysis
[31] The offense report compiled by ACPD Detective Zagelmeier indicates that on
October 31, 2013, Detective Zagelmeier was advised by Detective Geray Farrell
“to make contact with Capt. Dave Nelson of the [FWPD]’s Internal Affairs
Division on November 1, 2013 regarding an incident involving some FWPD
officers and a possible burglary.” Defendant’s Collective Exhibit, Exhibit E.
The report further indicates that On November 1, 2013, Detective Zagelmeier
met with Captain Nelson who advised that
his office had received information that a group of officers had a
party at the home of FWPD Detective Scott Tegtmeyer.…
During the course of the party, it was mentioned by either
Tegtmeyer or his wife that an unoccupied house down the road
was being foreclosed on by the bank. The information received
by Capt. Nelson was that … Tegtmeyer’s wife, another unknown
female and FWPD Sgt. Scott Criswell went to the residence in
question to look at it. While there it was reported that Criswell
tried to open the door of the residence and the door was
unlocked, but chained from the inside. Capt. Nelson reported
Tegtmeyer’s wife then said, “that’s not how you open a door”
and kicked the door open. Capt. Nelson stated he was told that
when Criswell, Tegtmeyer’s wife and the second female returned
Court of Appeals of Indiana | Opinion 02A03-1501-CR-22 | October 13, 2015 Page 20 of 26
to the party at the Tegtmeyer residence, there was a chain saw
and two gas cans in the back of the ATV. Capt. Nelson reported
that Detective Tegtmeyer became very upset with Criswell and
his wife and ended up returning the chain saw and gas cans to the
residence the next day. Capt. Nelson stated that Tegtmeyer’s
wife and the other female told partygoers that Criswell had taken
the items and Criswell reported that the women had taken the
items.
Defendant’s Collective Exhibit, Exhibit E.
[32] Detective Zagelmeier’s offense report indicates that the State was made aware
of Criswell’s and Tegtmeyer’s potential participation in the burglary of the
home in question on November 1, 2013. Criswell’s internal investigation
interview was not completed until November 8, 2013. Also, Detective
Zagelmeier learned the identity of Sabo, i.e., the previously unidentified female,
on or about November 15, 2013. The State argues that it is significant that it
learned Tegtemeyer’s and Sabo’s identities through information provided
independently of Criswell’s interview because both women subsequently gave
accounts of the events in question. The State further argues that it is also
significant that Detective Zagelmeier was aware of the identity of each of the
alleged participants approximately two months before the State requested a
subpoena for the production of “any and all” information pertaining to the
internal investigation into the incident. Defendant’s Collective Exhibit, Exhibit
D.
[33] On March 27, 2014, Detective Zagelmeier interviewed both Tegtemeyer and
Sabo. Criswell claims that each of the women’s interviews was “rife with
Court of Appeals of Indiana | Opinion 02A03-1501-CR-22 | October 13, 2015 Page 21 of 26
phrasing, guidance and steering of the interview with information that could
only have been learned” from Criswell’s compelled statement. Appellant’s Br.
p. 16. Criswell asserts that it is apparent from the video recordings of these
interviews that Detective Zagelmeier is reviewing the transcript of Criswell’s
compelled statement at various points throughout both interviews. Criswell
also asserts that there are ten direct, unambiguous questions or statements
posed to Tegtemeyer and fourteen direct, unambiguous questions or statements
posed to Sabo that could have been obtained from “no other source than”
Criswell’s compelled statement. Appellant’s Br. p. 17. Thus, Criswell claims
that “[w]ithout doubt,” Tegtmeyer’s and Sabo’s testimony were shaped “both
directly and indirectly by information learned from” Criswell’s compelled
statement and that “[t]his exposure to the information from [Criswell’s
compelled statement] completely and utterly taints any future testimony by
these witnesses, and the fair use of these witnesses by the Prosecutor.”
Appellant’s Br. p. 17.
[34] For its part, the State claims that Detective Zagelmeier’s questioning during
each woman’s interview followed a natural and logical course of determining
who did what, who spoke, and who saw or heard the others speak or act. The
State asserts that Detective Zagelmeier interviewed both Tegtmeyer and Sabo
for a significant amount of time, forty minutes and thirty-eight minutes,
respectively. From these lengthy interviews, Criswell only points to ten
instances where Detective Zagelmeier used Criswell’s compelled statement in
questing Tegtmeyer and fourteen instances where Detective Zagelmeier used
Court of Appeals of Indiana | Opinion 02A03-1501-CR-22 | October 13, 2015 Page 22 of 26
Criswell’s compelled statement in questioning Sabo. The State claims that
these were routine police interviews during which the subjects voluntarily
related their own knowledge without reference to anything that Criswell said to
Sergeant Seay. The State further claims that it had other sources for the
information that cannot be found to be derived from or connected to Criswell’s
compelled statement. Thus, the State claims the independent and routine
nature of the interviews underscores its argument before the trial court that a
denial of Criswell’s motion was proper because under Kastigar, a defendant’s
immunity extends no further than the prosecutor’s use of a defendant’s
statement.2
[35] Criswell responds to the State’s claims and assertions by arguing that the
questioning of Tegtmeyer and Sabo did not follow the “natural and logical
course” of a routine investigation because Detective Zagelmeier was able to
shape each interview to corroborate the facts he had already learned from
Criswell’s statement and to find new facts that he knew would be needed to
2
The State also appears to argue that its evidence should be found to be independent
of Criswell’s compelled statement because “Detective Zagelmeier was not investigating
Criswell; he was investigating a potential burglary and theft occurring during the Tegtmeyer
party and committed by Heather Tegtmeyer, Patricia Sabo, or Criswell” and that Detective
Zagelmeier’s “entire investigation was conducted under the original case” which was opened
when the theft was first reported in September of 2013. Appellee’s Br. p. 22. However, contrary
to the State’s claim it seems that Detective Zagelmeier was investigating Criswell, Tegtmeyer,
and Sabo as he had received information that they had committed burglary and/or theft.
Further, it seems unclear what difference it makes as to whether Detective Zagelmeier
investigated the matter under the “original case” or opened a new case. In the end, the result is
the same, i.e., that Detective Zagelmeier completes an investigation into who burgled the home
in question.
Court of Appeals of Indiana | Opinion 02A03-1501-CR-22 | October 13, 2015 Page 23 of 26
secure a conviction against Criswell. Appellant’s Reply Br. p. 14. Criswell
further argues that “[i]n a typical investigation, a detective would not have the
benefit of a 30-page long statement from a defendant who has exercised his
Fifth Amendment privilege.” Appellant’s Reply Br. p. 14. Criswell asserts that
Detective Zagelmeier’s claim that he would have interviewed Tegtmeyer and
Sabo regardless of whether he read Criswell’s statement does not forgive the
violation of the Supreme Court’s holdings in Garrity and Kastigar. Criswell
further asserts that the fact that Detective Zagelmeier waited to interview
Tegtmeyer and Sabo until after he had Criswell’s compelled statement suggests
that there was value in using the compelled statement in conducting the
interviews.
[36] Criswell also argues that the State overstated how much it knew about
Criswell’s involvement in the incident before obtaining and reviewing his
compelled statement. Specifically, Criswell claims that the State did not know
whether he had entered the home before obtaining and reviewing his compelled
statement. In support of this claim, Criswell points to the charging
informations filed by the State, both of which list the internal affairs investigator
and interviewer as a potential witness. Criswell also points to the ACPD’s
evidence sheets which indicate that the evidence file relating to the instant
matter contained two items: (1) a media disk containing audio recordings of the
internal affairs interviews conducted in relation to the instant matter, and (2) a
media disk containing recordings of Tegtmeyer’s and Sabo’s interviews.
Criswell additionally claims that prior to obtaining and reviewing his compelled
Court of Appeals of Indiana | Opinion 02A03-1501-CR-22 | October 13, 2015 Page 24 of 26
statement, Detective Zagelmeier continued to investigate the homeowner’s ex-
husband as a possible responsible party.
[37] Having determined that Criswell’s statement to Sergeant Seay should be
suppressed, the question becomes whether the evidence the State intends to
present during trial is wholly independent of Criswell’s suppressed statement. If
the evidence was derived either directly or indirectly from Criswell’s suppressed
statement, it too must be suppressed as it would be considered fruit of the
poisonous tree. However, if the evidence was not derived from Criswell’s
suppressed statement, it could, barring any other potential successful objections
to its admission, be admissible at trial.
[38] Since the admission of evidence falls within the sound discretion of the trial
court, we conclude that the proper path to follow in the instant matter is to
remand the matter to the trial court. On remand, we instruct the trial court to
conduct a “Kastigar hearing” during which the trial court closely examines
whether any portions of (1) Tegtmeyer’s statement, (2) Sabo’s statement, or (3)
any other evidence which the State intends to submit at trial was derived,
directly or indirectly, from Criswell’s statement. We further instruct the trial
court that any evidence that is determined to be derived directly or indirectly
from Criswell’s statement must also be suppressed.
[39] The judgment of the trial court as to Criswell’s motion to suppress is reversed
and the matter is remanded to the trial court with instructions.
Court of Appeals of Indiana | Opinion 02A03-1501-CR-22 | October 13, 2015 Page 25 of 26
Vaidik, C.J., and Crone, J., concur.
Court of Appeals of Indiana | Opinion 02A03-1501-CR-22 | October 13, 2015 Page 26 of 26