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At all times relevant to this appeal, Appellant-Defendant Scott Criswell was a Sergeant with the Fort Wayne Police Department (“FWPD”). Criswell 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.
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.
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.
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… 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 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.
[Record citations omitted throughout.] Criswell signed the GARRITY NOTICE, agreed to participate in an internal affairs interview, and gave a compelled statement.
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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. * * * 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:
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.
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In United States v. Palmquist, 712 F.3d 640 (1st Cir. 2013), the United States Court of Appeals for 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. [Citation omitted.]
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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. * * * Unlike the notice signed by the employee in Palmquist, the language of the GARRITY NOTICE signed by Criswell expressly stated 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.” (emphasis added). This language is more definitive than the language at issue in Palmquist, and is sufficient to lead Criswell to believe that he would lose his job or suffer similarly severe employment consequences if he were to remain silent.
Alternatively, the State claims that Garrity should not apply because Criswell “was never asked to waive his Fifth Amendment privilege.” * * * However, contrary to the State’s assertion, it seems to us that [the notice’s] 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.
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. [Footnote omitted.] Accordingly, we conclude that the trial court abused its discretion in denying Criswell’s motion to suppress his statement.
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Criswell also contends that the State failed to prove that the evidence it intends to present at trial is wholly independent of his statement. …
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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.” [U.S. v.] Cozzi, 613 F.3d [725,] 732 [(7th Cir. 2010)] (internal quotations omitted); see also Kastigar, 406 U.S. at 460. …
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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.
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 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.
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.
Vaidik, C.J., and Crone, J., concur.