                 No. 3-09-0524 consolidated with Nos. 3-09-0525 and 3-09-0526
______________________________________________________________________________
Filed April 1, 2010
                                           IN THE

                             APPELLATE COURT OF ILLINOIS

                                   THIRD DISTRICT

                                   A.D., 2010
______________________________________________________________________________

THE PEOPLE OF THE STATE OF )           Appeal from the Circuit Court
ILLINOIS                               )     for the 10th Judicial Circuit,
                                       )     Peoria County, Illinois,
      Plaintiff-Appellant,             )
                                       )
      v.                               )     09-CF-292; 09-CF-293; 09-CF-364
                                       )
ANDREW SMITH,                          )
                                       )     The Honorable
      Defendant-Appellee,              )     Michael E. Brandt
                                       )     Judge, Presiding.
      AND                              )
                                       )
THE PEOPLE OF THE STATE OF )
ILLINOIS,                              )
                                       )
      Appellee,                        )
                                       )
      v.                               )
                                       )
ANDREW R. SMITH,                       )
                                       )
      Appellant,                       )
                                       )
      AND                              )
                                       )
THE PEOPLE OF THE STATE OF )
ILLINOIS,                              )
                                       )
      Appellee,                        )
                                       )
      v.                               )
                                       )
GERALD SUELTER,                              )
                                             )
               Appellant,                    )
                                             )
       AND                                   )
                                             )
THE PEOPLE OF THE STATE OF )
ILLINOIS,                                    )
                                             )
               Appellee,                     )
                                             )
       v.                                    )
                                             )
JEREMY LAYMAN,                               )
                                             )
               Appellant.                    )

______________________________________________________________________________

      JUSTICE McDADE delivered the opinion of the court:
______________________________________________________________________________

       This is an appeal from the trial court’s order to partially quash a subpoena duces tecum

served upon the Peoria police department (PPD). We affirm.

                                             FACTS

       Defendants Andrew Smith, Gerald Suelter and Jerry Layman (collectively defendants) are

officers in the PPD. Smith and Suelter were charged by an indictment with four counts of

official misconduct, aggravated battery, mob action, and battery. The indictment alleged that

Smith and Suelter shocked Bryce Scott with a taser and struck him with their feet. Layman was

charged by an indictment with four counts of obstructing justice and one count of official

misconduct.

       The PPD conducted its own internal investigation of the Scott incident. Prior to giving

their statements, Smith, Suelter and Laymen each signed an individual form entitled “Garrity


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Warnings.” The form had been prepared by the PPD’s Office of Professional Standards and was

presented to them by officers in that office. Each form stated:

                      “On February 5, 2009, *** at Peoria Police Department, I

               was ordered to submit this report by Sgt. Michael Boland. I submit

               this report (give statement) at his order as a condition of

               employment. In view of possible job forfeiture, I have no

               alternative but to abide by this order.

                      It is my belief and understanding that the department

               requires this report (statement) solely and exclusively for internal

               purposes and that this report (statement) will not and cannot be

               used against me by this department in any subsequent proceedings

               other than disciplinary proceedings within the confines of the

               department itself.

               For any and all other purposes, I hereby reserve my constitutional

               right to remain silent under the FIFTH and FOURTEENTH

               AMENDMENTS to the UNITED STATES CONSTITUTION and

               other rights prescribed by law. Further, I rely specifically upon the

               protection afforded me under the doctrines set forth in Garrity v.

               New Jersey, 385 U.S. 493 (1967), and Spevack v. Klein, 385 U.S.

               511 (1967), should this report (statement) be used for any other

               purpose whatsoever.”

       On April 3, 2009, the State served a subpoena duces tecum upon the PPD. The subpoena


                                                  3
sought any and all statements made by PPD officers in the course of the PPD’s internal

investigation of the Scott incident. The State specifically sought any police reports or statements

made by defendants. The State also requested any police reports or statements made by Officers

James Krider, Conor Wowra and Tim Wright.

       The city of Peoria (the city) filed a motion to quash the subpoena duces tecum. The

motion asserted that the documents requested in the State’s subpoena duces tecum were protected

against disclosure under Garrity v. New Jersey, 385 U.S. 493, 17 L. Ed. 2d 562, 87 S. Ct. 616

(1967). Suelter also filed his own individual motion to quash relying on Garrity. Layman filed a

motion to adopt the city’s motion. Smith submitted a written memorandum of law in support of

his argument that the city’s motion should be granted.

       On April 23, 2009, a hearing was held on the motions to quash. The hearing consisted

only of arguments and colloquy among counsel; no witnesses testified. Ultimately, the trial court

ordered that the statements be turned over to the court for examination of the statements before

ruling on the motions to quash.

       On May 15, 2009, the trial court issued a written order granting the city’s motion and

Suelter’s motion to quash the subpoena with regard to any statements by defendants. The court

further held that any statements by other PPD officers not charged with a crime were not subject

to this order quashing the subpoena.1 Specifically, the order stated, in pertinent part:

                 “The [defendants’] statements tendered are clearly subject to ***

                 Garrity. ‘Garrity warnings’ were given to each prior to the


       1
           Although the city of Peoria moved for reconsideration of this finding, it has not been

appealed and the ruling with regard to other police officers’ statements is not before us.

                                                  4
               statement. Thus, the defendants have a 5th Amendment right that

               neither statement, nor the fruit of the statement, may be used

               against the officer in any criminal proceeding.”

                                           ANALYSIS

       The sole question before us is whether the trial court erred in quashing the State’s

subpoena duces tecum on the basis that defendants’ statements were protected against disclosure

under Garrity v. New Jersey, 385 U.S. 493, 17 L. Ed. 2d 562, 87 S. Ct. 616 (1967). In coming to

this conclusion, the court relied upon the “Garrity Warnings” that each defendant signed. On

appeal, however, the State argues that the “Garrity Warnings” standing alone are insufficient to

support the court’s finding that Garrity immunity applies. The State requests that the court’s

judgment be reversed and the matter remanded for a United States v. Friedrick, 842 F.2d 382

(D.C. Cir. 1988) hearing on the voluntariness of the statements.

       At the outset, we clarify the basis of our jurisdiction. Smith contends that this court does

not have jurisdiction to review the trial court’s judgment because the defendants’ statements were

not discoverable and were not evidence that could be presented to the trier of fact. We disagree.

       Supreme Court Rule 604(a)(1) allows the State to obtain review of an “order or judgment

the substantive effect of which results in *** suppressing evidence.” 210 Ill. 2d R. 604(a)(1).

“For the purposes of this aspect of Rule 604(a)(1), there is no substantive distinction between

evidence that is ‘excluded’ and evidence that is ‘suppressed.’ ” People v. Drum, 194 Ill. 2d 485,

491, 743 N.E.2d 44, 47 (2000). Thus, the pertinent question in determining whether jurisdiction

exists under Rule 604(a)(1) is whether the order, in fact, is one that suppresses or excludes

evidence. Drum, 194 Ill. 2d at 491, 743 N.E.2d at 47. In making this determination, we look to


                                                 5
the substantive effect of the order rather than its form. Drum, 194 Ill. 2d at 489, 743 N.E.2d at

46.

       The trial court in Drum rejected the State’s request to admit the prior testimony of two

witnesses who indicated they would not testify at the defendant’s trial. In reversing the trial

court’s judgment, the supreme court held that evidence is “suppressed” within the meaning of

Rule 604(a)(1) when the trial court’s order “prevents [the] information from being presented to

the fact finder.” Drum, 194 Ill. 2d at 492, 743 N.E.2d at 48.

       The trial court’s order here has the same effect that the trial court’s order in Drum had.

Specifically, it prevents defendants’ statements from being presented to the fact finder. While

Smith calls our attention to the supreme court’s holding in People v. Truitt, 175 Ill. 2d 148, 676

N.E.2d 665 (1997), we find it distinguishable for the reasons articulated in Drum. The Drum

court stated:

                “This court in Truitt concluded that the State could not appeal from

                a pretrial order regarding how it would be required to prove that

                certain material was an illegal controlled substance. The Truitt

                court reasoned that the pretrial order did not prevent any

                information from being presented to the jury. Rather, the sole

                impact of the order was on the means by which that information

                was presented.” Drum, 194 Ill. 2d at 492, 743 N.E.2d at 48.

       Because the State is permitted to take an interlocutory appeal from all trial court orders

that substantially impair its prosecution of a case by preventing the information from being

presented to the fact finder, we find the trial court’s order quashing the State’s subpoena duces


                                                  6
tecum to be an appealable order under Rule 604(a)(1). We now turn to the merits of the State’s

appeal and begin with a careful review of the relevant caselaw

       In Garrity, several police officers were the target of an investigation concerning the fixing

of traffic tickets. Before being questioned, each officer was warned (1) that anything he said

might be used against him in any state criminal proceeding; (2) that he had the privilege to refuse

to answer if the disclosure would tend to incriminate him; but (3) that if he refused to answer he

would be subject to removal from office. The officers answered the questions; however, some of

their answers were subsequently used in criminal proceedings against them. The officers were

convicted and appealed on the grounds 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. In

agreeing with the officers, the United States Supreme Court stated:

                       “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.

               Arizona, 384 U.S. 436, 464-465, 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.” Garrity, 385

               U.S. at 497-98, 17 L. Ed. at 565-66, 87 S. Ct. at 618-19.


                                                 7
The Supreme Court ultimately concluded that “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.” Garrity, 385 U.S. at 500, 17

L. Ed. at 567, 87 S. Ct. at 620.

       Since the Supreme Court’s decision in Garrity, federal and state courts asked to apply its

holding to the facts before them have developed two distinct lines of authority. The first line of

authority stems from United States v. Indorato, 628 F.2d 711 (1st Cir. 1980), and holds that

Garrity immunity will be applied only in situations where the record reveals an explicit or overt

threat of mandatory termination for a failure to answer questions. See State v. Litvin, 147 N.H.

606, 794 A.2d 806 (2002); People v. Coutu, 235 Mich. App. 695, 599 N.W.2d 556 (1999);

People v. Bynum, 159 Ill. App. 3d 713, 512 N.E.2d 826 (1987); Commonwealth v. Harvey, 397

Mass. 351, 491 N.E.2d 607 (1986).

       The police officer in Indorato was questioned by both a superior officer and the Federal

Bureau of Investigation (FBI). The officer was subsequently convicted of several criminal

offenses including perjury. On appeal, the officer, relying upon Garrity, claimed that his

statements were coerced and inadmissable. In rejecting the officer’s claim of Garrity immunity,

the court stated:

               “In this case, there was no explicit ‘or else’ choice and no

               statutorily mandated firing is involved. We do not think that the

               subjective fears of defendant as to what might happen if he refused

               to answer his superior officers are sufficient to bring him within


                                                 8
               Garrity’s cloak of protection. ***

                                                ***

                       Here, [the officer] did not claim the privilege. He was not

               told that he would be dismissed if he failed to answer the questions

               asked. He was not asked to sign a waiver of immunity. There was

               no statute mandating dismissal for refusal to answer hanging over

               his head. [The officer], here, was not, as in Garrity, put ‘between

               the rock and the whirlpool,’ [citation]; he was standing safely on

               the bank of the stream.” Indorato, 628 F.2d at 716-17.

       The second line of authority evolved from United States v. Friedrick, 842 F.2d 382 (D.C.

Cir. 1988), and holds that Garrity immunity will be applied in situations where the officer has a

subjective belief that he will be fired for refusing to answer questions and that belief is

objectively reasonable under the circumstances. See McKinley v. City of Mansfield, 404 F.3d

418 (6th Cir. 2005); United States v. Vangates, 287 F.3d 1315 (11th Cir. 2002); State v.

Chavarria, 2001-NMCt-095, 131 N.M. 172, 33 P.3d 922; People v. Sapp, 934 P.2d 1367, (Colo.

1997). Thus, courts applying the Friedrick line of authority have determined that Garrity

immunity may apply even where the threat of termination is implied rather than explicit or overt.

       The issue in Friedrick was whether the immunity, which an FBI agent was previously

granted in prior interviews, continued into the interview where he made incriminating statements.

On appeal, the court found that Garrity immunity would apply if the agent believed that his

statements were being compelled by threat of losing his job and that this belief was objectively

reasonable under the circumstances. Friedrick, 842 F.2d at 395. Thus, Friedrick held that


                                                  9
Garrity immunity may apply even where the threat of termination is implied rather than explicit

or overt. Friedrick, 842 F.2d at 395.

          The Bynum court appears to be the only Illinois court that has had the opportunity to

analyze Garrity in light of these precise facts.2 At the outset, we note that Bynum was decided

one year before Friedrick. The police officer in Bynum was driving an unmarked squad car when

it hit a bicyclist. The officer was later interviewed by a sergeant, a captain, and an accident

reconstructionist. During the interviews the officer made several admissions regarding the

incident. The officer was subsequently convicted for failure to reduce speed to avoid and

accident and failure to exercise due care to avoid colliding with a bicyclist. The officer appealed,

arguing that the State’s use at trial of his previous admissions violated his fifth amendment

rights, because he was required to make the statements and reports by police regulations. The

Fourth District relied on Indorato in finding that Garrity had “not been given a broad

interpretation.” Bynum, 159 Ill. App. 3d at 715, 512 N.E.2d at 827. Specifically, the court

stated:

                    “[The officer] maintains that here, unlike in Indorato, there was

                    significant evidence that an officer who disobeys an order to give

                    information would be discharged. We disagree. All such evidence


          2
              We are aware of the First District’s holding in People v. Carey, 386 Ill. App. 3d 254,

898 N.E.2d 1127 (2008). Carey, however, is distinguishable on the grounds that it did not

involve testimonial or communicative evidence. Instead, the Carey court declined to apply the

logic underlying Garrity to determine whether the defendant voluntarily consented to a breath-

alcohol test. Carey, 386 Ill. App. 3d at 268, 898 N.E.2d at 1141.

                                                     10
                 called to our attention indicated that dismissal would be possible

                 but would not necessarily follow.” Bynum, 159 Ill. App. 3d at 715,

                 512 N.E.2d at 827.

       Here on appeal, the State requests that we “adopt the two-prong test articulated in

Friedrick.” Having examined the foregoing authority, however, we conclude that it is

unnecessary for the purpose of deciding this case to adopt either the two-pronged Friedrick test

or the more narrow interpretation announced in Indorato. Instead, we believe the holding in

Garrity is itself dispositive of the question before us.

       The “Garrity Warnings,” which were signed by each defendant, clearly assert that

defendants were given the choice to “either forfeit their jobs or to incriminate themselves.”

Garrity, 385 U.S. at 497, 17 L. Ed. at 565, 87 S. Ct. at 618. In coming to this conclusion, we

emphasize the following language: (1) “I was ordered to submit this report by Sgt. Michael

Boland,” (2) “I submit this report (give statement) at his order as a condition of employment,”

and (3) “I have no alternative but to abide by this order.”3 While we acknowledge the reference

to “possible job forfeiture” (emphasis added), we do not believe that these three words alone act

to defeat the overall intent of the “Garrity Warnings.” Instead, we find that the “Garrity

Warnings,” when read as a whole, reveal that defendants were faced with the option of either

incriminating themselves or losing their means of livelihood. Garrity, 385 U.S. at 497, 17 L. Ed.


       3
           At no point in this case’s odyssey has the State challenged the propriety of any of the

specific claims contained within the “Garrity Warnings.” Instead, the State merely contends that

the “Garrity Warnings,” standing alone, are insufficient to support a finding that Garrity

immunity exists.

                                                  11
at 565, 87 S. Ct. at 618. These defendants did not give their statements in an unfettered exercise

of free will, but rather to avoid a clearly expressed penalty for choosing to remain silent.

Statements given under such coercion cannot be sustained as voluntary. Garrity, 385 U.S. at

497, 17 L. Ed. at 565, 87 S. Ct. at 618. Moreover, we note that defendants expressly reserved, in

all circumstances other than the internal investigation and any resulting disciplinary proceedings,

their constitutional right to remain silent and any protections afforded under Garrity.

Consequently, we find that the “Garrity Warnings” standing alone are sufficient to support the

application of Garrity immunity.

       For the foregoing reasons, we affirm the trial court’s judgment quashing the State’s

subpoena duces tecum with regard to any statements by defendants.

       Affirmed.

       HOLDRIDGE, P.J., and LYTTON, J., concur.




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