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                             STATE v. WEICHMAN
                              Cite as 292 Neb. 227




                  State of Nebraska, appellee, v.
                  Michael S. Weichman, appellant.
                                 ___ N.W.2d ___

                     Filed December 4, 2015.   No. S-15-368.

 1.	 Motions to Suppress: Confessions: Constitutional Law: Appeal and
      Error. In reviewing a motion to suppress a confession based on the
      claimed involuntariness of the statement, an appellate court applies a
      two-part standard of review. With regard to historical facts, an appellate
      court reviews the trial court’s findings for clear error. Whether those
      facts suffice to meet the constitutional standards, however, is a ques-
      tion of law, which an appellate court reviews independently of the trial
      court’s determination.
 2.	 Constitutional Law: Self-Incrimination. The protections of the Fifth
      Amendment to the U.S. Constitution are generally not self-executing.
  3.	 ____: ____. There are two main exceptions to the general rule that the
      Fifth Amendment to the U.S. Constitution is not self-executing: where
      a suspect is in police custody and the so-called penalty exception,
      where the assertion of the privilege is penalized so that the option to
      remain silent is foreclosed and the incriminating testimony is effec-
      tively compelled.
 4.	 Self-Incrimination: Termination of Employment. An implicit threat
      of termination of employment can be sufficient to support a claim that a
      statement was coerced.
 5.	 ____: ____. In order to determine whether a statement is coerced
      for purposes of the penalty exceptions, courts apply a two-pronged
      approach: (1) that the defendant have a subjective belief that he or she
      was compelled to give a statement on threat of the loss of his or her job
      and (2) that the defendant’s belief be objectively reasonable.
  6.	 ____: ____. A subjective belief will not be considered objectively rea-
      sonable if the state has played no role in creating the impression that the
      refusal to give a statement will be met with termination of employment.
  7.	 ____: ____. The existence of a statute, rule, regulation, or policy subject-
      ing an employee to termination for the failure to provide a statement is
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                     Nebraska A dvance Sheets
                      292 Nebraska R eports
                          STATE v. WEICHMAN
                           Cite as 292 Neb. 227

   highly relevant, though not usually dispositive, in determining whether a
   subjective belief is objectively reasonable. Under this subjective/objec-
   tive test, a court examines the totality of the circumstances surrounding
   the statement.

  Appeal from the District Court for York County: James C.
Stecker, Judge. Affirmed.
  Mark Porto, of Shamberg, Wolf, McDermott & Depue, for
appellant.
   Douglas J. Peterson, Attorney General, and George R. Love
for appellee.
  Heavican, C.J., Wright, Connolly, McCormack, Miller-
Lerman, Cassel, and Stacy, JJ.
  Heavican, C.J.
                     INTRODUCTION
  Michael S. Weichman, appellant, was convicted of first
degree sexual abuse of an inmate and was sentenced to 1 to 2
years’ imprisonment. At issue on appeal is whether statements
made by Weichman during a polygraph examination were
admissible against him at trial. We conclude that the state-
ments were admissible and accordingly affirm.
                 FACTUAL BACKGROUND
   Weichman was employed by the Nebraska Department
of Correctional Services as a maintenance supervisor at the
Nebraska Correctional Center for Women (NCCW). On April
21, 2014, reports were received that Weichman had engaged
in sexual intercourse with an NCCW inmate. Weichman was
interviewed regarding the allegation and denied the reports.
The inmate was also interviewed and denied the allegations.
   On May 5, 2014, Weichman submitted to a polygraph
examination. During the course of the examination, Weichman
made statements admitting that he had received oral sex from
the inmate in question about 2 to 3 weeks prior to the poly-
graph examination.
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                         292 Nebraska R eports
                             STATE v. WEICHMAN
                              Cite as 292 Neb. 227

   On May 15, 2014, the inmate was interviewed again and
initially denied the relationship. But after being told that
Weichman had admitted to a sexual relationship, she also admit-
ted to the relationship and indicated that she and Weichman
had engaged in sexual intercourse four or five times and that
she had performed oral sex on Weichman on at least two occa-
sions prior to the sexual intercourse.
   On June 20, 2014, Weichman was charged by information
with first degree sexual abuse of an inmate. He filed a motion
to suppress both the statements he made during the polygraph,
under Garrity v. New Jersey,1 and the statements made by the
inmate as fruit of the poisonous tree. Weichman’s motion to
suppress was denied.
   At the hearing on the motion to suppress, Benny Noordhoek,
an investigator with the Department of Correctional Services,
testified. Noordhoek had been tasked with investigating the
allegations against Weichman. In the course of that investiga-
tion, Noordhoek questioned Weichman about the allegations.
Prior to that questioning, Weichman was informed of his
Miranda2 rights. Weichman denied the relationship.
   Noordhoek asked Weichman if he would be willing to take a
polygraph examination. Weichman agreed. Noordhoek testified
he explained to Weichman that a polygraph was presented as
an option to Weichman, not a requirement, and that Weichman
could not be forced to submit to the polygraph. Noordhoek
told Weichman he would get back to him with the details of
the polygraph examination.
   Weichman testified that he initially agreed to take a poly-
graph examination, but was reconsidering that decision when
he received a “written directive” from the NCCW warden
regarding the polygraph. After receiving the directive and

 1	
      Garrity v. New Jersey, 385 U.S. 493, 87 S. Ct. 616, 17 L. Ed. 2d. 562
      (1967).
 2	
      Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694
      (1966).
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                             STATE v. WEICHMAN
                              Cite as 292 Neb. 227

speaking with the warden, Weichman believed that taking the
polygraph was nonnegotiable and that he would be fired if
he refused to do so. He acknowledged that no one, including
Noordhoek, the warden, or the polygraph examiner, ever told
him that he would be fired for refusing to take the polygraph.
Weichman admitted that the polygraph examiner told him that
he, the examiner, could not force Weichman to take the exami-
nation. The polygraph examiner also informed Weichman that
he did not know what the employment ramifications might be
if Weichman declined to take the polygraph.
   The warden also testified about her delivery of the directive
to Weichman regarding the polygraph. She indicated that she
provided Weichman with details of the time and place of his
examination, and also informed him that he could use a State
vehicle and State time to travel to the examination. The warden
testified that she was really only complying with Noordhoek’s
request to inform Weichman of the pertinent details of the
examination, a fact confirmed by Noordhoek. But Noordhoek
also confirmed that on its face, the directive was to Weichman
from the warden.
   A bench trial on stipulated facts was held on March 3, 2015,
after which Weichman was found guilty of first degree sexual
abuse of an inmate. He was sentenced to 1 to 2 years’ impris-
onment. He appeals.
                ASSIGNMENT OF ERROR
  Weichman makes three assignments of error that can be
consolidated and restated into one: The district court erred in
denying his motion to suppress.
                   STANDARD OF REVIEW
   [1] In reviewing a motion to suppress a confession based
on the claimed involuntariness of the statement, an appellate
court applies a two-part standard of review.3 With regard to
historical facts, we review the trial court’s findings for clear

 3	
      State v. Bormann, 279 Neb. 320, 777 N.W.2d 829 (2010).
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                          292 Nebraska R eports
                              STATE v. WEICHMAN
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error.4 Whether those facts suffice to meet the constitutional
standards, however, is a question of law, which we review
independently of the trial court’s determination.5
                            ANALYSIS
   On appeal, Weichman argues that the district court erred in
denying his motion to suppress. Weichman contends that the
statements he made during his polygraph were not voluntary
under the 5th and 14th Amendments to the U.S. Constitution
and under Garrity6 and should have been suppressed.
   [2,3] The protections of the Fifth Amendment are gener-
ally not self-executing. “[I]n the ordinary case, if a witness
under compulsion to testify makes disclosures instead of claim-
ing the [Fifth Amendment] privilege, the government has not
‘compelled’ him to incriminate himself.”7 But, “application
of this general rule is inappropriate in certain well-defined
situations.”8 “In each of those situations . . . some identifiable
factor ‘was held to deny the individual a “free choice to admit,
to deny, or to refuse to answer.”’”9 There are two main excep-
tions to this general rule: where a suspect is in police custody,10
commonly referred to as “Miranda11 rights,” and where “the
assertion of the privilege is penalized so that the option to
remain silent is foreclosed and the incriminating testimony is
effectively compelled.”12

 4	
      Id.
 5	
      Id.
 6	
      Garrity, supra note 1.
 7	
      Garner v. United States, 424 U.S. 648, 654, 96 S. Ct. 1178, 47 L. Ed. 2d
      370 (1976).
 8	
      Minnesota v. Murphy, 465 U.S. 420, 429, 104 S. Ct. 1136, 79 L. Ed. 2d
      409 (1984).
 9	
      Id. (citing Garner, supra note 7).
10	
      Miranda, supra note 2.
11	
      Id.
12	
      U.S. v. Camacho, 739 F. Supp. 1504, 1513 (S.D. Fla. 1990) (citing
      Murphy, supra note 8).
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                               STATE v. WEICHMAN
                                Cite as 292 Neb. 227

   The seminal U.S. Supreme Court case setting forth this
so-called penalty exception is Garrity.13 In Garrity, the New
Jersey Attorney General was investigating the alleged fixing
of traffic tickets. During the investigation, the defendant police
officers were questioned. Prior to that questioning, each officer
was informed that (1) anything the officer said might be used
against him in a criminal proceeding; (2) the officer had a
privilege to refuse to answer if the disclosure would tend to be
incriminating; and (3) if the officer refused to testify, he would
be subject to removal from office.
   The officers did not invoke the Fifth Amendment and
answered the questions asked of them. Over their objections,
some of those statements were later offered against them in
criminal prosecutions for conspiracy to obstruct the adminis-
tration of the traffic laws. The defendants appealed, arguing
that the statements offered against them were coerced because
the officers risked losing their jobs if they failed to answer
the questions.
   The Supreme Court found that the officers’ statements were
not voluntary,14 noting that “[t]he choice given [the defendants]
was either to forfeit their jobs or to incriminate themselves”15
and that “[t]he 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.”16 The Court also noted
that the State’s practice was “‘likely to exert such pressure
upon an individual as to disable him from making a free and
rational choice.’”17 The Court concluded that “the protection
of the individual under the Fourteenth Amendment against
coerced statements prohibits use in subsequent criminal pro-
ceedings of statements obtained under threat of removal from

13	
      Garrity, supra note 1.
14	
      Id.
15	
      Id., 385 U.S. at 497.
16	
      Id.
17	
      Id.
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office, and that . . . extends to all, whether they are policemen
or other members of our body politic.”18
   Since its decision in Garrity, the Supreme Court has noted
that the decision was “limited to instances where an inter-
viewee is coerced into waiving his constitutional right against
self-incrimination through the threat of dismissal,”19 and “[did]
not prohibit the state from compelling an employee from
answering questions directly and narrowly related to his duties,
provided that he is not coerced into relinquishing his privilege
against self-incrimination.”20
   There are generally two approaches courts take when deter-
mining whether a defendant’s right against self-incrimination
under Garrity was violated. The first approach is set forth
in United States v. Indorato.21 There, the defendant was not
explicitly told that he would be dismissed for the failure to
submit to questioning, but he argued that departmental rules
required him to obey the lawful order of his superior or be
dismissed. The First Circuit rejected this argument, not-
ing that
         [i]n all of the cases flowing from Garrity, there are
      two common features: (1) the person being investigated
      is explicitly told that failure to waive his constitutional
      right against self-incrimination will result in his discharge
      from public employment . . . ; and (2) there is a statute

18	
      Id., 385 U.S. at 500.
19	
      Camacho, supra note 12, 739 F. Supp. at 1514 (citing Gardner v. Broderick,
      392 U.S. 273, 88 S. Ct. 1913, 20 L. Ed. 2d 1082 (1968)).
20	
      Id. See, Lefkowitz v. Cunningham, 431 U.S. 801, 97 S. Ct. 2132, 53 L. Ed.
      2d 1 (1977); Sanitation Men v. Sanitation Comm’r., 392 U.S. 280, 88 S.
      Ct. 1917, 20 L. Ed. 2d 1089 (1968); Gardner, supra note 19.
21	
      United States v. Indorato, 628 F.2d 711 (1st Cir. 1980). See, also, U.S.
      v. Stein, 233 F.3d 6 (1st Cir. 2000); Singer v. State of ME., 49 F.3d 837
      (1st Cir. 1995); People v. Bynum, 159 Ill. App. 3d 713, 512 N.E.2d 826,
      111 Ill. Dec. 437 (1987); Commonwealth v. Harvey, 397 Mass. 351, 491
      N.E.2d 607 (1986); People v. Coutu, 235 Mich. App. 695, 599 N.W.2d 556
      (1999); State v. Litvin, 147 N.H. 606, 794 A.2d 806 (2002).
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      or municipal ordinance mandating such procedure. In this
      case, there was no explicit “or else” choice and no statu-
      torily mandated firing is involved.22
Thus, under Indorato and subsequent cases following its rea-
soning, Garrity is limited to its facts; a defendant is not entitled
to its protections unless the defendant was told that his or her
employment would be terminated and there was a statute man-
dating such discharge.
   [4-7] In contrast to the Indorato line of cases, other courts
have concluded that an implicit threat of termination of employ-
ment might be sufficient to support a claim that a statement
was coerced under Garrity. These courts adopt a two-pronged
approach: (1) that the defendant have a subjective belief that he
or she was compelled to give a statement on threat of the loss
of his or her job and (2) that the defendant’s belief be objec-
tively reasonable.23 A subjective belief that Garrity applies will
not be considered objectively reasonable if the state has played
no role in creating the impression that the refusal to give the
statement will be met with termination of employment.24 The
existence of a statute, rule, regulation, or policy subjecting an
employee to termination for the failure to provide a statement
is highly relevant, though not usually dispositive, in determin-
ing whether a subjective belief is objectively reasonable.25
Under this test, a court examines the totality of the circum-
stances surrounding the statement.26
   Both Weichman and the State argue that the subjective/
objective test is the appropriate test to utilize; the district court

22	
      Indorato, supra note 21, 628 F.2d at 716.
23	
      See, e.g., U.S. v. Friedrick, 842 F.2d 382 (D. C. Cir. 1988). But see State
      v. Aiken, 282 Ga. 132, 646 S.E.2d 222 (2007).
24	
      Camacho, supra note 12.
25	
      See id.
26	
      See, U.S. v. Vangates, 287 F.3d 1315 (11th Cir. 2002); Camacho, supra
      note 12; People v. Sapp, 934 P.2d 1367 (Colo. 1997); State v. Chavarria,
      131 N.M. 172, 33 P.3d 922 (N.M. App. 2001); State v. Brockdorf, 291 Wis.
      2d 635, 717 N.W.2d 657 (2006).
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also applied this test. We agree. As such, we must first consider
whether Weichman held a subjective belief that his employ-
ment would be terminated for failing to submit to the poly-
graph examination. If we conclude that Weichman held such
a subjective belief, we must then ask whether that subjective
belief was objectively reasonable.
   Weichman testified that he believed he would be fired if he
refused to take the polygraph examination. The district court
accordingly found that Weichman had a subjective belief that
his employment would be terminated. There was no error in
this finding.
   This subjective belief satisfies the first prong of the subjec-
tive/objective test. But we cannot conclude the second prong
was met, because on these facts, Weichman’s subjective belief
was not objectively reasonable. In coming to this conclusion,
we examine the totality of the circumstances.
   Weichman initially agreed to take the polygraph, even
though he was told that he did not have to do so. Upon
Weichman’s agreement, Noordhoek, the investigator, told
Weichman he would be in touch regarding details of the
test. Prior to the commencement of this questioning and con-
versation regarding the polygraph, Weichman was read his
Miranda rights.
   Soon thereafter, Weichman was called to see the NCCW
warden and was given a document entitled “Written Directive.”
That document set forth the details of his polygraph exam-
ination. The evidence shows that the warden did not tell
Weichman that he must submit to the polygraph or be fired. At
the time, the warden informed Weichman that he could use a
State vehicle and worktime to attend the polygraph.
   Upon attending the polygraph, Weichman was again read
his Miranda rights. The record is clear that the polygraph
examiner told Weichman that he did not have to take the
examination. The examiner also told Weichman that he, the
examiner, did not know what the ramifications of refusing to
take the test would be.
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                       STATE v. WEICHMAN
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   We note that there was no express threat made to Weichman
regarding termination for failure to submit to the polygraph or
to questioning. Nor is there any statute, ordinance, rule, regula-
tion, or policy that would require Weichman’s termination for
his failure to submit to the polygraph or to otherwise fail to
cooperate with an investigation.
   Weichman alleges that the warden’s “written directive” was
a sufficient action which made his belief that he would be
fired objectively reasonable. We disagree. We observe that
Weichman was expecting to receive information about the
polygraph examination from Noordhoek. Particularly, given the
totality of all the circumstances as described above, we cannot
conclude that the fact that information about the polygraph was
received from the warden and not from Noordhoek transforms
Weichman’s otherwise subjective belief into an objectively
reasonable one. We therefore conclude that the district court
did not err in denying Weichman’s motion to suppress his
own statements.
   Having concluded that Weichman’s statements were admis-
sible, we need not address his contention that the victim’s
statements were inadmissible as fruit of the poisonous tree.
Because there was no tree, there can be no fruit.
                         CONCLUSION
   The district court did not err in denying Weichman’s motion
to suppress. Accordingly, we affirm Weichman’s conviction
and sentence.
                                                   A ffirmed.
