                                                                           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
