People v. Sapp

Page 1367

934 P.2d 1367

12 IER Cases 1268, 21 Colorado Journal 446

The PEOPLE of the State of Colorado, Petitioner, v. Joel SAPP, Respondent.

The PEOPLE of the State of Colorado, Petitioner, v. Hershel BLACKFORD, Respondent.

Nos. 96SC84, 96SC85.

Supreme Court of Colorado En Banc.

March 31, 1997.

Peter F. Michaelson, District Attorney, Fifth Judicial District, Todd H. Barson, Deputy District Attorney, Breckenridge, for Petitioner.

Bruno, Bruno & Colin, P.C., Louis B. Bruno, Paul D. Godec, Denver, for Respondents.

Justice MARTINEZ delivered the Opinion of the Court.

We granted certiorari in these two cases to review the orders of the Lake County District Court affirming orders of a county court suppressing evidence in the prosecutions of two law enforcement officers for False Reporting to Authorities ¹ and Second Degree Official Misconduct. ² The county court concluded that the officers' statements were compelled by the threat of discharge from their employment. We adopt a two-prong test to determine whether statements are compelled by threat of discharge from employment: (1) a person must subjectively believe that he will be fired for asserting the Fifth Amendment privilege against self-incrimination, and (2) that belief must be objectively reasonable under the circumstances. We agree that the law enforcement officers subjectively believed that their statements were compelled, but hold that the record does not support a conclusion that these beliefs were objectively reasonable under the circumstances. We reverse.

I.

In early November, 1994, defendants Joel Sapp, a Leadville police officer, and Hershel Blackford, a Lake County deputy sheriff, responded to reports of a domestic disturbance. Sapp and Blackford contacted a suspect but failed to make an arrest even though the suspect was also violating a restraining order and had two outstanding bench warrants. Instead, they released the suspect and reported that he had fled. Other offenses were committed by the suspect later that evening.

The next night, Sapp and Blackford were called into a meeting by their respective superiors, Leadville Police Chief James Zoller and Lake County Acting Sheriff Calvin Dawe, and questioned about the incident. The supervisors asked Sapp and Blackford to prepare written reports. Zoller and Dawe had also asked the district attorney's office to investigate because the incident involved both the sheriff's and police departments, and they believed it was not appropriate for either department to investigate the other. At the time, both Zoller and Dawe contemplated only an internal investigation--they did not intend or anticipate that criminal charges would be filed.

The district attorney filed criminal charges against Sapp and Blackford, based on statements made by them during the course of the internal affairs investigation. The defendants moved to suppress, claiming that the statements were involuntary and in violation of their Miranda rights.

The defendants, their superiors, and the district attorney's investigator testified at a consolidated evidentiary hearing on the motions to suppress in county court. Blackford testified that he knew he was not under arrest or in custody when Zoller and Dawe asked him about the incident and told him to write the report. Sapp did not believe he was even being investigated for a criminal matter. Both employees testified that while they understood the meeting with their superiors to be part of an internal investigation, no promises were ever made that the investigation would remain a strictly internal matter or that criminal charges would not be brought. Blackford and Sapp also testified that as law enforcement officers, they felt compelled to follow the orders from their superiors both because of the quasi-military nature of their jobs, and because refusal to do so (by invoking their privilege against self-incrimination) could result in their dismissal for insubordination.

Police Chief Zoller and Acting Sheriff Dawe confirmed that the defendants were not under arrest or in custody during their interview. They also confirmed that while the interview was understood as being part of an internal investigation, no promises were made that the investigation would necessarily stay internal or confidential or that criminal charges would not be brought. They testified that they had not contemplated the possibility of criminal charges. Zoller and Dawe also testified that they expected the defendants to obey their orders to cooperate by answering questions and writing statements, and that if they were in the defendants' positions, they would have felt obligated to cooperate. Both Zoller and Dawe were asked whether they would have fired their respective employees for refusing to cooperate by invoking the privilege. They acknowledged that refusal to cooperate would have been considered insubordination which could have resulted in discipline. However, neither Zoller nor Dawe stated that he would have actually fired his respective employee for exercising his right to remain silent. Blackford served at the pleasure of the sheriff. Acting Sheriff Dawe testified that while he had the authority to fire Blackford, he would have deferred any discharge decisions to the Lake County Sheriff who at that time was in the hospital. Sapp could only be fired by the Leadville City Council after a due process hearing. Police Chief Zoller testified that while he might have recommended firing Sapp for his underlying misconduct, he would not have recommended firing Sapp for exercising his right to remain silent.

Sapp's attorney introduced evidence of a police department policy manual which stated that an employee shall be immediately informed of his constitutional rights if it is determined that he may be charged with a criminal offense and that internal affairs investigation evidence shall be kept in confidence. However, Sapp did not testify that he relied on or was even aware of this policy. Rather, he testified that he was aware of no express or implied promises that his statements could not be used against him in a criminal proceeding.

In its findings of fact and conclusions of law the county court broadly discussed Miranda and whether the defendants relied upon promises that statements would be confidential and not used in criminal proceedings. The county court concluded that Blackford and Sapp feared they could lose their jobs had they refused to cooperate with the investigation and invoked their Fifth Amendment right to remain silent. The county court suppressed Blackford's and Sapp's statements as involuntary and in violation of Miranda.

The People filed an interlocutory appeal of these rulings in district court pursuant to Crim. P. 37.1. The district court noted that the county court's suppression orders had "broadly address[ed] Miranda issues as well as the express or implied promise issues," but chose to "focus only on the issue of coercion." The district court concluded that Blackford and Sapp believed that they could have been fired for refusing to give statements as asked. The district court also concluded, without discussion, that this belief was reasonable. The district court therefore affirmed the suppression orders. We granted certiorari to determine "whether the respondents' statements during an internal affairs investigation were compelled and therefore inadmissible in their criminal trials." ³

II.

The lower courts concluded that Blackford's and Sapp's statements were compelled by the threat of discharge from their employment. We agree with the courts below that Blackford and Sapp subjectively believed that they faced a threat of discharge, but conclude that this belief was not objectively reasonable under the circumstances. We first determine the appropriate analysis for deciding whether statements are compelled by the threat of discharge from employment and then apply that analysis to the case before us.

A.

The Fifth Amendment states that no person "shall be compelled in any criminal case to be a witness against himself." U.S. Const. amend. V. A person may nonetheless voluntarily provide self-incriminating statements. Fifth Amendment jurisprudence thus often focuses on what circumstances constitute compulsion. The Fifth Amendment doctrine that a threat of discharge from employment may constitute impermissible compulsion has its origins in Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967).

In Garrity, New Jersey police officers were investigated for allegedly fixing traffic tickets. The officers were informed that they could exercise their Fifth Amendment privilege against self-incrimination if they wished, but doing so would cost them their jobs under a New Jersey statute which required all public employees to cooperate with investigations or forfeit their positions. Id. at 494, 87 S.Ct. at 617. The officers cooperated with the investigation, but when prosecuted they moved to suppress their statements as involuntary and coerced. The Supreme Court held that the threat of being fired was sufficiently coercive as to undermine the officers' free choice and render their statements involuntary and subject to suppression under the Fifth Amendment. Id. at 496-98, 87 S.Ct. at 618-19.

Cases immediately following Garrity largely limited the analysis of involuntariness to situations in which a person was confronted with a statute or regulation which would automatically penalize any exercise of the privilege against self-incrimination. See Lefkowitz v. Cunningham, 431 U.S. 801, 97 S.Ct. 2132, 53 L.Ed.2d 1 (1977) (penalty imposed by statute); Lefkowitz v. Turley, 414 U.S. 70, 94 S.Ct. 316, 38 L.Ed.2d 274 (1973) (same); Gardner v. Broderick, 392 U.S. 273, 88 S.Ct. 1913, 20 L.Ed.2d 1082 (1968) (penalty imposed by municipal ordinance); Uniformed Sanitation Men v. Comm'r of Sanitation, 392 U.S. 280, 88 S.Ct. 1917, 20 L.Ed.2d 1089 (1968) (same). The rule in these "penalty cases" has...