                                              COURT OF APPEALS OF VIRGINIA


              Present: Judges Kelsey, Petty and Senior Judge Annunziata
UNPUBLISHED


              Argued at Chesapeake, Virginia


              ROBERT ANTHONY MURRAY
                                                                             MEMORANDUM OPINION * BY
              v.      Record No. 1137-12-1                                 JUDGE ROSEMARIE ANNUNZIATA
                                                                                   APRIL 23, 2013
              COMMONWEALTH OF VIRGINIA


                               FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
                                            Marc Jacobson, Judge Designate

                                Jason A. Dunn (Jones, Jones & Dunn, PLC, on brief), for appellant.

                                Elizabeth C. Kiernan, Assistant Attorney General (Kenneth T.
                                Cuccinelli, II, Attorney General, on brief), for appellee.


                      Robert Anthony Murray (appellant) appeals his misdemeanor conviction of embezzlement

              in violation of Code § 18.2-111. On appeal, appellant contends the trial court erred in denying his

              motion to suppress statements he made to police officers. Appellant argues the statements were

              obtained and used against him at trial in violation of his constitutional rights and the holding of the

              United States Supreme Court in Garrity v. New Jersey, 385 U.S. 493 (1967). Finding no error, we

              affirm the conviction.

                                                         BACKGROUND

                      In reviewing a trial court’s ruling on a motion to suppress, this Court views the evidence

              in the light most favorable to the prevailing party, the Commonwealth in this instance, and

              considers the “evidence adduced at both the trial and suppression hearing.” Greene v.

              Commonwealth, 17 Va. App. 606, 608, 440 S.E.2d 138, 139 (1994).


                      *
                          Pursuant to Code § 17.1-413, this opinion is not designated for publication.
       Viewed in this light, the evidence proved that on July 2, 2009, the Portsmouth Police

Department executed a search warrant in conjunction with an investigation of an alleged illegal

gambling operation at “Lucky Dog Sweepstakes.” Pursuant to the search warrant, the police

seized a number of items found on the premises, including a Vizio flat-screen television

(hereinafter, “the TV”). Subsequently, the case involving Lucky Dog Sweepstakes was dropped,

resulting in the return to Lucky Dog Sweepstakes of all the seized property with the exception of

the TV, which could not be located. The seized property had been stored in a facility maintained

by the Tactical Response Unit (TRU) of the Portsmouth police.

       On September 17, 2010, Sergeant T. Thursby, a supervising officer of TRU, sent a series

of text messages to all TRU officers, including appellant, stating that the TV must be located and

returned or an official investigation would follow. Thursby’s final text message stated “no

questions [would be] asked” when the TV was returned.

       When Lieutenant Donald Butler, one of appellant’s superior officers, arrived at the police

department for work on September 20, 2010, he observed the TV had been returned to one of the

offices at TRU. Butler was informed that appellant had brought in the TV. When Butler asked

appellant where the TV had been, appellant told Butler, “It’s here, it’s in the office.” When

Butler asked who had the TV before it was returned, appellant said he thought no questions were

to be asked. When Butler asked the question again, appellant asked if he was required to answer.

Butler responded that appellant either could answer him or he “was going to answer to them,”

pointing to the building that housed the Professional Standards Unit (PSU), the internal affairs

division of the police department. Butler’s response was intended to inform appellant that an

investigation would be launched if he did not answer Butler’s question. Appellant thereupon




                                               -2-
identified a former Portsmouth police officer, by the name of “Riddle,” as the individual who

had had the TV. 1

        Butler testified that his conversation with appellant was not part of an administrative

investigation and that appellant was not in custody at the time. Butler explained his questions as

an attempt to satisfy his curiosity about the TV’s location before its return. Once appellant

identified Riddle as the individual who had had the TV, Butler asked no further questions.

Butler explained that the officer was “no longer with [the police force], so it really didn’t

concern [him].” According to Butler, pursuant to police department policy, appellant would

have been subject to discipline, ranging from an oral reprimand to dismissal, for refusing to

answer Butler’s question. However, Butler did not tell appellant that the failure to answer

questions would result in his dismissal or suspension.

        On November 9, 2010, the chief of the Portsmouth Police Department authorized an

internal investigation by PSU regarding the disappearance of the TV. On November 12, 2010,

Detective J.D. Thomas, the PSU officer leading the investigation, emailed a “Rights and

Responsibilities” letter to appellant, as well as to a number of other individuals. The letter stated

that an administrative investigation was being conducted and it set forth the departmental policy

on interviews conducted during such investigations.

        The policy states that “[a]n employee may be ordered to answer questions that are related

to their duties or fitness. Failure to answer such questions may be the basis for disciplinary

action.” 2 The departmental policy also sets forth an employee’s rights during an administrative

investigation, stating, in relevant part:


        1
        A police officer named Riddle was the applicant for the search warrant for the premises
of Lucky Dog Sweepstakes.
        2
         Thomas testified that discipline for not answering questions during an investigation
could range from administrative sanction to dismissal.
                                                -3-
               The employee shall truthfully and completely answer all questions
               pertaining to the investigation, either verbally or in writing.
               Refusal to truthfully and completely answer these questions shall
               be grounds for disciplinary action and may result in dismissal from
               the department. While an employee has the right to remain silent
               and not incriminate him or herself in a criminal proceeding, the
               employee’s silence or refusal to answer questions during an
               administrative investigation will be deemed insubordination, and
               will result in discipline, which may result is dismissal from the
               department in accordance with Garrity v. New Jersey, 385 U.S.
               493 (1967).

                       . . . [A]nswers given by an employee during the
               investigation of an administrative matter will not be used against
               that employee in any criminal proceedings.

The email advised appellant to contact Thomas at PSU to schedule a formal interview.

       On November 14, 2010, appellant called Thursby to discuss the pending administrative

investigation. Appellant told Thursby he intended to inform PSU that he had the TV before it

was returned. Thursby advised appellant to first tell Lieutenant Wright, one of the supervisors at

TRU.

       On the morning of November 15, 2010, appellant telephoned Lieutenant Larry Jacobs,

who was both a personal friend and the commanding officer of PSU. Appellant told Jacobs he

had learned of the investigation regarding the TV and that, according to his supervisor, no

questions would be asked if the TV was returned. Appellant admitted he had taken the TV,

pointing out he had returned it. Appellant told Jacobs that he believed “it was common practice

and normal to use equipment out of the police department.” Jacobs did not ask appellant any

questions during the telephone conversation or indicate any penalties that appellant would face,

including whether he would be fired or suspended, if he failed to answer the questions asked

during the investigation. Jacobs, however, reiterated the requirement that appellant meet with




                                               -4-
Thomas and provide an official statement of the occurrence. 3 Subsequently, Jacobs relayed the

substance of his conversation with appellant to the Virginia State Police, whose investigation of

the incident resulted in appellant’s indictment for felony embezzlement, in violation of Code

§ 18.2-111. 4

                                          DISCUSSION

       Appellant argues on appeal that the police obtained his statements on September 20,

November 14, and November 15, 2010 in violation of his Fifth Amendment rights and that the

trial court erred in denying his motion to suppress them. “The burden is on the defendant to

show that the denial of his suppression motion, when the evidence is considered in the light most

favorable to the Commonwealth, was reversible error.” McCain v. Commonwealth, 261 Va.

483, 490, 545 S.E.2d 541, 545 (2001).

       Specifically, appellant contends that on September 20, 2010 Butler submitted him to

questioning regarding the missing TV under the potential threat of economic sanction, namely

dismissal from employment. Thus, he asserts, his admission of knowledge that Riddle had had

the TV was coerced, and his admission resulted in the administrative investigation that ensued.

Appellant further claims his statements on November 14, 2010 to Thursby and on November 15,

2010 to Jacobs were derived from his initial statement to Butler and that they, likewise, were

inadmissible in the criminal proceedings brought against him.


       3
         Appellant met with Thomas on November 15, 2010. In Thomas’ presence, appellant
signed the “Rights and Responsibilities” letter he had received by email. At appellant’s trial, the
Commonwealth introduced no evidence obtained during appellant’s interview with Thomas. Nor
did Thomas provide the Virginia State Police officers who investigated appellant for
embezzlement with the contents of the statement appellant made during the November 15, 2010
interview with Thomas.
       4
           At trial, appellant was found not guilty of felony embezzlement, but guilty of
misdemeanor embezzlement in violation of Code § 18.2-111. He was sentenced to six months in
jail, all suspended, conditioned on one year of good behavior. He also was fined $500, with
$250 suspended.
                                                  -5-
       In relevant part, the Fifth Amendment provides that no individual “shall be compelled in

any criminal case to be a witness against himself.” The Fifth Amendment, which is made

applicable to the states by the Fourteenth Amendment, see J.D. v. Commonwealth, 42 Va. App.

329, 339, 591 S.E.2d 721, 726 (2004), not only establishes “a person’s right not to testify when

one is a defendant in a criminal trial but also ‘privileges him not to answer official questions put

to him in any other proceeding, civil or criminal, formal or informal, where the answer might

incriminate him in future criminal proceedings.’” Id. (quoting Lefkowitz v. Turley, 414 U.S. 70,

77 (1973)).

       In support of his argument, appellant relies primarily upon the Supreme Court’s decision

in Garrity, in which New Jersey police officers were questioned during an official investigation

of allegations of fraudulent conduct. Before the questioning, the officers were advised of their

Fifth Amendment right to not answer questions, but were informed that any refusal to answer

would result in their dismissal. Inculpatory statements from some of the officers were later

admitted in criminal prosecutions against them. See Garrity, 385 U.S. at 495. The Court

concluded that the Fifth Amendment privilege 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. at

500.

       Subsequent to Garrity, United States Supreme Court opinions have held that the Fifth

Amendment was violated when the suspect’s statements were coerced by the threat of an

economic sanction. See Gardner v. Broderick, 392 U.S. 273, 279 (1986); Uniformed Sanitation

Men Ass’n, Inc. v. Commissioner of Sanitation, 392 U.S. 280, 283-84 (1968). However, in the

case law progeny of Garrity,

               there are two common features: (1) the person being investigated is
               explicitly told that failure to waive his constitutional right against
                                                -6-
               self-incrimination will result in his discharge from public
               employment (or a similarly severe sanction imposed in the case of
               private citizens); and (2) there is a statute or municipal ordinance
               mandating such procedure.

United States v. Indorato, 628 F.2d 711, 716 (1st Cir. 1980).

       We conclude that appellant’s September 20, 2010 statement to Butler identifying another

officer as the individual who had had the TV was not coerced by an explicit threat of discharge

or other economic sanction, and thus does not fall under the protective cloak of Garrity. At the

time of the September 20 conversation, Thursby had advised the members of TRU that the TV

had to be returned, and it was. Having learned of the return of the TV, Butler, one of appellant’s

supervisors, asked appellant where the TV had been. Appellant asserts on appeal that Butler’s

implication that appellant would have to answer to PSU if he did not respond to Butler’s

questions catalyzed his admission that he had knowledge of where the TV had been and the

name of the perpetrator. However, Butler’s questions did not include a threat to remove

appellant from office or impose any sanction whatsoever. In short, appellant was not presented

with a choice of either answering Butler’s questions or losing his job and livelihood. To be sure,

although a possibility existed that an investigation of the incident would be instituted if appellant

failed to answer Butler’s questions regarding the TV, no investigation had been launched at the

time of the questioning.

       Furthermore, the prospect of being the named subject of an investigation was not, in

itself, sufficient to bring any admissions appellant made at that time within the ambit of the

Garrity principles. A criminal defendant’s “subjective concern that he might receive some

disciplinary action is not sufficient to prove that state action coerced or compelled him to answer

questions against his will.” J.D., 42 Va. App. at 341, 591 S.E.2d at 727.

       Finally, as appellant recognizes, an investigation would not necessarily have resulted in

the imposition of an economic penalty or sanction any greater severity than an oral reprimand.
                                                -7-
Under these circumstances, it cannot be said that Butler exerted “‘such pressure upon . . .

[appellant] as to disable him from making a free and rational choice.’” Garrity, 385 U.S. at 497

(quoting Miranda v. Arizona, 384 U.S. 436, 464-65 (1966)). 5

        Having concluded appellant’s September 20, 2010 statement was not obtained as a result

of unlawful police coercion, we need not consider appellant’s arguments that his subsequent

statements to Thursby and Jacobs were inadmissible because they were derived from a primary

illegality. Appellant does not argue, and we do not consider, whether the statements to Thursby

and Jacobs were otherwise inadmissible because they were produced under coercion by the

police subsequent to appellant’s September 20, 2010 encounter with Butler or because they were

involuntary. 6

                                          CONCLUSION

        For the foregoing reasons, we find the trial court did not err in denying appellant’s

motion to suppress. We affirm appellant’s conviction.

                                                                                          Affirmed.




        5
        Indeed, appellant’s belief that it was common practice for police officers to use items or
equipment that had been seized by the police lends further credence to the conclusion that he did
not make his statement to Butler under coercion.
        6
        Defense counsel conceded at oral argument that appellant made the November 14
statement voluntarily.
                                            -8-
