[Cite as State v. Schimmel, 2017-Ohio-7747.]

IN THE COURT OF APPEALS OF OHIO 

SECOND APPELLATE DISTRICT 

 CLARK COUNTY 

STATE OF OHIO 

Plaintiff-Appellant

v. 

CURTIS E. SCHIMMEL 

Defendant-Appellee 

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Appellate Case No. 2017-CA-23 

Trial Court Case No. 2016-CR-557 

(Criminal Appeal from 

Common Pleas Court) 

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O P I N I O N 

Rendered on the 22nd day of September, 2017. 

. . . . . . . . . . . 

ANDREW R. PICEK, Atty. Reg. No. 0082121, ANDREW P. PICKERING, Atty. Reg. No. 

0068770, Assistant Prosecuting Attorneys, Clark County Prosecutor’s Office, 50 East 

Columbia Street, Fourth Floor, Springfield, Ohio 45502 

 Attorneys for Plaintiff-Appellant 

 

ERIC E. WILLISON, Atty. Reg. No. 0066795, BRADLEY P. KOFFEL, Atty. Reg. No. 

0062184, 1801 Watermark Drive, Suite 350, Columbus, Ohio 43215 

 Attorneys for Defendant-Appellee 

. . . . . . . . . . . . . 

 

WELBAUM, J. 
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{¶ 1} In this case, Plaintiff-Appellant, the State of Ohio, appeals from a trial court 

decision granting a motion to suppress filed by Defendant-Appellee, Curtis Schimmel. In 

support of its appeal, the State contends that the trial court erred in granting Schimmel’s 

motion to suppress, because Schimmel’s loss of possible government employment was 

not a penalty that constituted compulsion under the Fifth Amendment to the United States 

Constitution, but was a denied possible benefit. As a result, statements that Schimmel 

made during a pre-employment polygraph examination and interview were not compelled 

within the meaning of the Fifth Amendment, and the statements and fruits of the 

investigation that resulted should not have been suppressed. 

{¶ 2} We conclude that the trial court erred in granting the suppression motion. 

Schimmel failed to assert his Fifth Amendment privilege against incrimination, and he did 

not fall within any established exceptions to assertion of the privilege. The interview and 

examination were part of a routine and accepted law enforcement application process, 

and Schimmel was not under any compulsion to continue. To the contrary, Schimmel 

could have ended the process at any time. Accordingly, the judgment of the trial court 

will be reversed, and this cause will be remanded for further proceedings. 

I. Facts and Course of Proceedings 

{¶ 3} The facts in this case are undisputed. On November 14, 2016, an 

indictment was filed against Curtis Schimmel, based on three counts of illegal use of a 

minor in nudity-oriented material or performance, in violation of R.C. 2907.323(A)(3). 

These were fifth-degree felonies, and the indictment alleged that Schimmel had viewed 
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material that showed a child in a state of nudity on or about August 18, 2016. 

{¶ 4} In January 2017, Schimmel filed a motion to suppress, based on the failure 

of the Clark County Sheriff to immunize him concerning answers he gave to questions 

during a polygraph examination that was administered as part of the employment process 

with the Sheriff’s Department. At a pre-trial hearing held in February 2017, the parties 

submitted two exhibits that have not been included in the record. No other factual 

evidence was submitted; however, the absence of the exhibits does not affect the appeal, 

because the parties agree that the facts are undisputed. 

{¶ 5} As was noted, Schimmel sought employment with the Clark County Sheriff’s 

Department, and as part of the employment process, was required to undergo a 

polygraph examination. Before the examination was administered, and as a condition of 

continuing his application for employment, Schimmel was required to sign a consent form 

for the examination. The form provided, in pertinent part, as follows: 

I, Curtis Schimmel voluntarily agree to take a polygraph examination 

for the mutual benefit of myself and the Clark County Sheriff’s Office. 

I understand that I am being requested to undergo the polygraph 

examination regarding information I have provided on my polygraph 

questionnaire, application for employment, and interviews relating to my 

suitability for employment. I understand the results of the examination, or 

my failure to cooperate during the test will be considered along with other 

factors indicating my suitability for employment. 

I fully realize that I do not have to take this examination, and that 

even in the proceedings, I can stop the examination at any time, simply by 
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telling the polygraph examiner to stop. I also understand that if I choose to 

stop the examination, I forfeit further consideration of employment with the 

County of Clark. I also give my consent to the use [sic] audio and/or video 

electronic recording equipment during this examination. 

* * * 

I hereby give the Clark County Sheriff’s Office full and complete 

permission to disclose the findings and results of this comprehensive 

background investigation to those persons or parties having an interest in 

this examination, to include my current employer, or an appropriate law 

enforcement agency for the purpose of a criminal investigation, if any 

criminal, immoral or other concerning or disqualifying issues are 

discovered. I understand that this disclosure may result in adverse 

consequences for me in my current job, including but not limited to 

termination from employment, negative reference for future employment, 

and possible criminal prosecution. . . . 

* * * 

I fully understand this waiver, and have been offered the opportunity 

to withdraw my application for employment to the Clark County Sheriff’s 

Office. I know [sic] request that Ohio Polygraph Services, LLC Examiner 

proceed with the actual interview and polygraph examination. [signatures] 

Joint Ex. 1, as referenced in the State’s Brief, p. 2. 

{¶ 6} After the form was signed, the polygraph examination was administered. 

During the pre-test interview, sexual conduct was an area that was covered. At that time, 
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Schimmel disclosed that he had looked up pornography involving girls as young as 16 

years of age as recently as one month before the examination. Joint Ex. 2, as referenced 

in the State’s Brief, at p. 3. During the test, a “significant response” occurred when 

Schimmel was asked if he were withholding information about his sexual history. Id. at 

p. 4. After being further questioned, Schimmel stated that he liked “young girls,” and said 

he had viewed pornography involving girls as young as ten years of age as recently as 

the past week; he also said he had done so previously on numerous occasions. Id. 

After further testing, Schimmel admitted that he had viewed images of girls as young as 

eight years old, and had maintained archives. 

{¶ 7} Based on this information, the police obtained a search warrant and found 

28 images of nude minors on Schimmel’s electronic devices. Schimmel was then 

charged for the three counts of illegal use of a minor in nudity-oriented material or 

performance. 

{¶ 8} After considering the evidence and arguments of the parties, the trial court 

granted the motion to suppress on February 28, 2017. In doing so, the court relied on 

Lefkowitz v. Turley, 414 U.S. 70, 94 S.Ct. 316, 38 L.Ed.2d 274 (1973). 

{¶ 9} Turley involved architects who had refused to sign waivers of immunity when 

summoned to testify before a grand jury about charges of conspiracy, bribery, and 

larceny. Id. at 75-76. After the district attorney notified various contracting authorities 

of their conduct and potential disqualification under statutes, the architects sued, 

asserting that their existing and future contracts had been threatened, and that the 

statutory provisions violated the right against self-incrimination. Id. at 76. The 

Supreme Court agreed, and held that the statutes were unconstitutional. 
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{¶ 10} In the case before us, the trial court concluded that the threat of forfeiting 

the possibility of future employment with Clark County was no less a substantial economic 

sanction than what was involved in Turley, and that Schimmel’s Fifth Amendment right 

against self-incrimination had been violated. The court, therefore, suppressed the 

statements Schimmel had made, as well as evidence obtained from the search of his 

residence. The State now appeals the court’s decision as of right, pursuant to R.C. 

2945.67. 

II. Did the Court Err in Granting the Motion to Suppress? 

{¶ 11} On appeal, the State presents the following sole assignment of error: 

The Trial Court Erred in Granting the Defendant-Appellee’s Motion 

to Suppress Statements Made During a Pre-Employment Polygraph 

Examination and the Fruits Thereof. 

{¶ 12} Under this assignment of error, the State acknowledges that for current 

government employees, eliciting statements though threat of loss of livelihood imposes 

an unconstitutional burden. The State argues, however, that Schimmel’s position is 

more akin to that of the defendant in Garner v. United States, 424 U.S. 648, 96 S.Ct. 

1178, 47 L.Ed.2d 370 (1976). Garner involved the State’s use of information that the 

defendant had reported on IRS forms. The information was used as evidence in the 

defendant’s subsequent criminal prosecution for “conspiracy involving the use of 

interstate transportation and communication facilities to ‘fix’ sporting contests, to transmit 

bets and information assisting in the placing of bets, and to distribute the resultant illegal 

proceeds.” Id. at 649. 
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{¶ 13} The court held in Garner that if witnesses wish to obtain Fifth Amendment 

protection, they must assert it; otherwise, they are not “compelled” within the meaning of 

the amendment. Id. at 654-655. Garner noted some exceptions, including custodial 

interrogations, failure to file tax returns specifically required of gamblers, and questioning 

of government employees under threat of termination. Id. at 657-662. According to the 

State, Schimmel’s situation is more like that of the defendant in Garner because if 

Schimmel refused to answer the examiner’s questions or had refused to submit to the 

examination, he would not have been subject to criminal prosecution. Instead, his only 

negative consequence would have been loss of being considered for a “possible” position 

with Clark County. 

{¶ 14} In response, Schimmel argues that the State has incorrectly chosen among 

the facts in Turley. Schimmel argues that the district court decision in Turley indicates 

that the only harm Turley suffered was to be removed from a list of authorized bidders for 

public work, and that no mention was made of lost or withdrawn contracts. Schimmel 

also relies on a decision from the Third Circuit Court of Appeals, which indicates that 

items such as loss of future contracting privileges with a state are “penalties” that cannot 

be imposed on exercise of the Fifth Amendment right. Appellee’s Brief, pp. 8-9, citing 

United States v. Frierson, 945 F.2d 650, 658 (3d Cir.1991). 

{¶ 15} “Appellate review of a suppression ruling involves a mixed question of law 

and fact.” (Citation omitted.) State v. Graham, 136 Ohio St.3d 125, 2013-Ohio-2114, 

991 N.E.2d 1116, ¶ 18. “If competent, credible evidence supports the trial court's 

findings of fact, then the appellate court must accept those findings as true.” Id. “ ‘[T]he 

appellate court must then independently determine, without deference to the conclusion 
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of the trial court, whether the facts satisfy the applicable legal standard.’ ” (Citations 

omitted.) Id. Since the facts here are undisputed, our task is to independently decide if 

the facts satisfy the appropriate legal standards for suppression. 

{¶ 16} “The Fifth Amendment provides that no person ‘shall be compelled in any 

criminal case to be a witness against himself.’ The Amendment not only protects the 

individual against being involuntarily called as a witness against himself in a criminal 

prosecution but also privileges him not to answer official questions put to him in any other 

proceeding, civil or criminal, formal or informal, where the answers might incriminate him 

in future criminal proceedings.” Turley, 414 U.S. at 77, 94 S.Ct. 316, 38 L.Ed.2d 274, 

citing McCarthy v. Arndstein, 266 U.S. 34, 40, 45 S.Ct. 16, 69 L.Ed. 158 (1924). Thus, 

“a witness protected by the privilege may rightfully refuse to answer unless and until he 

is protected at least against the use of his compelled answers and evidence derived 

therefrom in any subsequent criminal case in which he is a defendant. * * * Absent such 

protection, if he is nevertheless compelled to answer, his answers are inadmissible 

against him in a later criminal prosecution.” (Citations omitted.) Id. at 78. 

{¶ 17} However, “the Fifth Amendment privilege generally is not self-executing * * 

*.” Minnesota v. Murphy, 465 U.S. 420, 425, 104 S.Ct. 1136, 79 L.Ed.2d 409 (1984). 

Instead, if a witness “chooses to answer, his choice is considered to be voluntary since 

he was free to claim the privilege and would suffer no penalty as the result of his decision 

to do so.” Id. at 429. There are well-known exceptions to the requirement of asserting 

the privilege: (1) “custodial interrogation”; (2) situations where the assertion is penalized 

to an extent that a “ ‘free choice to remain silent’ ” is foreclosed; and (3) situations where 

parties fail to file tax returns rather than identifying themselves as gamblers and asserting 
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the Fifth Amendment privilege. (Citations omitted.) Id. at 429-430, 434, and 439. The 

case before us involves Schimmel’s claim to the “penalty” exception. 

{¶ 18} In Turley, the court extended Fifth Amendment protections to independent 

contractors, noting its recent holding that State employees “may be compelled to respond 

to questions about the performance of their duties but only if their answers cannot be 

used against them in subsequent criminal prosecutions.” Turley at 79, citing Garrity v. 

New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967), Gardner v. Broderick, 

392 U.S. 273, 88 S.Ct. 1913, 20 L.Ed.2d 1082 (1968), and Uniformed Sanitation Men 

Assn. v. Commr. of Sanitation of City of New York, 392 U.S. 280, 88 S.Ct. 1917, 20 

L.Ed.2d 1089 (1968). 

{¶ 19} Garrity involved police officers who were asked questions in an inquiry 

about the fixing of traffic tickets. They answered after being given “warnings that if they 

did not answer they would be removed from office and that anything they said might be 

used against them in any criminal proceeding. No immunity of any kind was offered or 

available under state law.” Turley at 80. Subsequently, their answers were used in 

their prosecutions for conspiracy. Id. The court held in Garrity that “ ‘the protection of 

the individual under the Fourteenth Amendment against coerced statements prohibits use 

in subsequent criminal proceedings of statements obtained under threat of removal from 

office, and that it extends to all, whether they are policemen or other members of our body 

politic.’ ” Id., quoting Garrity at 500. In addition, Garrity held that “in the context of 

threats of removal from office the act of responding to interrogation was not voluntary and 

was not an effective waiver of the privilege against self-incrimination * * *.” Id. 

{¶ 20} Similar results occurred in Gardner and Sanitation Men, which involved, 
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respectively, a police officer who was discharged after he refused to waive his right 

against self-incrimination when summoned to testify before a grand jury, and public 

employees who were officially interrogated and told their refusal to answer and sign 

immunity waivers would lead to dismissal. Turley, 414 U.S. at 81, 94 S.Ct. 316, 38 

L.Ed.2d 274. 

{¶ 21} In analyzing the issues, the United States Supreme Court stressed the 

necessity of reconciling established policies behind the self-incrimination privilege and 

the governmental need “to obtain information ‘to assure the effective functioning of 

government’ * * *.” (Citations omitted.) Id. The court then concluded that Garrity, 

Gardner, and Sanitation Men controlled. Id. at 82. In this regard, the court stressed 

that: 

The State sought to interrogate appellees about their transactions with the 

State and to require them to furnish possibly incriminating testimony by 

demanding that they waive their immunity and by disqualifying them as 

public contractors when they refused. It seems to us that the State 

intended to accomplish what Garrity specifically prohibited – to compel 

testimony that had not been immunized. The waiver sought by the State, 

under threat of loss of contracts, would have been no less compelled than 

a direct request for the testimony without resort to the waiver device. A 

waiver secured under threat of substantial economic sanction cannot be 

termed voluntary. 

Turley at 82. 

{¶ 22} The court also rejected the State’s argument that different rules should 
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apply to public contractors because they might not entirely rely on State transactions for 

their livelihood. Id. at 83. In response, the court agreed with “the District Court that ‘the 

plaintiffs' disqualification from public contracting for five years as a penalty for asserting 

a constitutional privilege is violative of their Fifth Amendment rights.’ ” Id., quoting Turley 

v. Lefkowitz, 342 F.Supp. 544, 549 (W.D.N.Y.1972). 

{¶ 23} Schimmel is partly correct when he asserts that the architects involved in 

Turley were not specifically challenging their dismissal from current contracts. The focus 

of the case appears to have been primarily on disqualification from future contracts. 

Specifically, the district court’s opinion states that “[t]he plaintiffs in this action are licensed 

architects who have in the past been employed by various municipalities and state and 

county agencies in New York.” (Emphasis added.) Turley, 342 F.Supp. at 545. 

{¶ 24} The architects were called to testify before a grand jury, and upon their 

refusal to sign a waiver of immunity against subsequent prosecution, the district attorney 

sent a letter to various governmental parties and the architects’ firms, notifying them that 

such a refusal required disqualification for five years of the architects and any firm of 

which they were a member “from contracting with any municipality or public authority, and 

any existing contracts may be cancelled by the municipality or public authority without 

incurring penalty.” Id. at 548. 

{¶ 25} After citing various authority, including Gardner and Garrity, the district court 

held that “[q]uite clearly, then, the plaintiffs' disqualification from public contracting for five 

years as a penalty for asserting a constitutional privilege is violative of their Fifth 

Amendment rights.” Id. at 549. Thus, the case indicates that the major concern was 

over the five-year disqualification from future contracting, not dismissal or just dismissal 
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from a current job. However, the court did also state that the plaintiffs had asked for a 

judgment declaring the statutes in question unconstitutional, based on their claim that “the 

defendants now threaten to nullify the plaintiffs’ employment opportunities and contractual 

rights.” Id. at 546. There can be no “contractual” right absent an existing contract. 

{¶ 26} Furthermore, on appeal, the United States Supreme Court stated that 

“[a]ppellees thereupon brought this action alleging that their existing contracts and future 

contracting privileges were threatened and asserted that the pertinent statutory provisions 

were violative of the constitutional privilege against compelled self-incrimination.” 

(Emphasis added.). Turley, 414 U.S. at 76, 94 S.Ct. 316, 322, 38 L.Ed.2d 274. In view 

of the statements to this effect in both the trial court and the United States Supreme Court, 

we cannot entirely agree with Schimmel’s position. 

{¶ 27} In Spevack v. Klein, 385 U.S. 511, 87 S.Ct. 625, 17 L.Ed.2d 574 (1967), the 

Supreme Court also applied the Fifth Amendment privilege to an attorney who refused to 

produce financial records during a judicial inquiry into professional conduct; the attorney 

was then disbarred based on his refusal to produce the records. Id. at 626-627. The 

court noted that in the context of the privilege against self-incrimination, “ ‘penalty’ is not 

restricted to fine or imprisonment. It means, as we said in Griffin v. State of California, 

380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 [1965], the imposition of any sanction which 

makes assertion of the Fifth Amendment privilege ‘costly.’ ” Id. at 628, quoting Griffin at 

614. 

{¶ 28} Stressing that “constitutional provisions for the security of person and 

property should be liberally construed,” the court noted that “ ‘[t]he threat of disbarment 

and the loss of professional standing, professional reputation, and of livelihood are 
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powerful forms of compulsion to make a lawyer relinquish the privilege. That threat is 

indeed as powerful an instrument of compulsion as ‘the use of legal process to force from 

the lips of the accused individual the evidence necessary to convict him * * *.’ ” Id., 

quoting United States v. White, 322 U.S. 694, 698, 64 S.Ct. 1248, 88 L.Ed. 1542 (1944). 

{¶ 29} Ohio has applied the Garrity principles to various situations, including 

statements elicited during police internal affairs investigations and during investigations 

involving other public employees. See, e.g., Jones v. Franklin Cty. Sheriff, 52 Ohio St.3d 

40, 555 N.E.2d 940 (1990) (internal affairs); State v. Jackson, 125 Ohio St.3d 218, 2010-

Ohio-621, 927 N.E.2d 574 (internal affairs); and Graham, 136 Ohio St.3d 125, 2013-Ohio2114, 991 N.E.2d 1116 (employees of division of state agency of natural resources). 

{¶ 30} The Supreme Court of Ohio has not ruled on the specific type of situation 

involved in the case before us. Recently, in Graham, the court considered whether the 

trial court had erred in granting motions to suppress filed by five upper-level employees 

of the Ohio Department of Natural Resources (“ODNR”), Division of Wildlife (“DOW”). 

After an investigation that the Ohio Inspector General (“OIG”) had conducted, criminal 

charges were brought against these employees for obstruction of justice and complicity 

to commit obstruction of justice, based on statements the employees made during the 

OIG investigation. Graham at ¶ 9. The employees signed an oath prior to questioning, 

indicating they were subject to criminal sanctions for providing false information. They 

were not advised of any right to counsel. Id. at ¶ 4. 

{¶ 31} Essentially, the OIG was investigating an allegation that the DOW failed to 

properly scrutinize misconduct of a Brown County DOW employee who had used his 

home address to obtain a cheaper hunting license for a non-resident South Carolina 
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wildlife officer. Id. at ¶ 3. The trial court suppressed the employees’ statements, finding 

that they had been compelled and were inadmissible under Garrity. Id. at ¶ 14, citing 

Garrity, 385 U.S. at 493, 87 S.Ct. 616, 17 L.Ed.2d 562. The court of appeals then 

reversed the trial court, based on its conclusion that the employees had not been 

expressly threatened with discipline. Id. at ¶ 15. In this regard, an OIG deputy inspector 

testified that he had not threatened the employees with termination or any type of jobrelated discipline when contacting them for interviews. Id. at ¶ 11. 

{¶ 32} An ODNR labor relations administrator testified that the employees had 

known they could be disciplined for refusing to cooperate, with sanctions ranging from 

oral reprimand to termination. Id. at ¶ 12. He also testified that the employees had each 

received an ODNR “ ‘Notice of Investigatory Review,’ ” which had informed them that 

refusing to answer questions “ ‘may lead to disciplinary action up to and including 

termination.’ ” Id. at ¶ 13. The court of appeals refused to consider this latter testimony 

and evidence, because the notice was undated, and the administrator’s testimony about 

when the defendants received the notice had been stricken. Id. at ¶ 15. 

{¶ 33} On subsequent appeal, the Supreme Court of Ohio reversed the court of 

appeals and affirmed the grant of the suppression motions. The court commented that 

“a person need not assert the privilege in cases in which the state compels the person to 

give up the ‘privilege by threatening to impose economic or other sanctions “capable of 

forcing the self-incrimination which the Amendment forbids.” ’ ” Graham, 136 Ohio St.3d 

125, 2013-Ohio-2114, 991 N.E.2d 1116, at ¶ 20, quoting Murphy, 465 U.S. at 429, 104 

S.Ct. 1136, 79 L.Ed.2d 409, which in turn quotes Lefkowitz v. Cunningham, 431 U.S. 801, 

806, 97 S.Ct. 2132, 53 L.Ed.2d 1 (1977). 
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{¶ 34} Furthermore, the Supreme Court of Ohio stated that “[c]ompulsion within 

the meaning of Garrity is obvious in cases in which, as in Garrity, the state has expressly 

confronted the public employee with the inescapable choice of either making an 

incriminatory statement or being fired.” Id. at ¶ 23. For less obvious situations involving 

lack of an express threat, the court adopted a totality of circumstances approach, and 

said that “for a statement to be suppressed under Garrity, the employee claiming coercion 

must have believed that his or her statement was compelled on threat of job loss and this 

belief must have been objectively reasonable. In examining whether an employee's 

belief was objectively reasonable under the circumstances, evidence of an express threat 

of termination or a statute, rule, or policy demanding termination will almost always be 

sufficient to show coercion.” Id. at ¶ 24, finding persuasive the approach in United States 

v. Friedrick, 842 F.2d 382, 395 (D.C.Cir.1988). (Other citation omitted.) 

{¶ 35} After considering the circumstances, the Supreme Court of Ohio held that 

the trial court had correctly granted the motions to suppress. The court concluded that 

although the labor administrator “could only speculate as to when appellants received the 

ODNR notice, he never wavered in his testimony that appellants had in fact received the 

notice.” Id. at ¶ 26. In addition, the language in the notice implied that it was to be 

provided to employees before investigatory interviews. Id. Thus, the court concluded 

that the threat in the notice sufficiently proved that the employees subjectively believed 

they could be fired for refusing to cooperate and that their belief was objectively 

reasonable. Id. at ¶ 27. 

{¶ 36} Notably, the court reached its decision even though the OIG lacked “the 

ability to arrest or directly discipline employees of other state agencies.” Graham, 136 
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Ohio St.3d 125, 2013-Ohio-2114, 991 N.E.2d 1116, at ¶ 28. The court observed that the 

OIG is statutorily required to report omissions or wrongful acts to a person’s public or 

private employer, for “possible disciplinary action.” Id., quoting R.C. 121.42(C). This, 

the court found, was similar to the state attorney general’s role in Garrity. Id. 

{¶ 37} The court also commented that, other than the threat in the ODNR notice, 

there was scant evidence indicating that the defendants “subjectively believed that they 

were compelled to cooperate with the OIG investigation.” Id. at ¶ 29. In addition, R.C. 

121.45, which imposed a general duty to comply with OIG investigations, did not threaten 

any kind of discipline. Id. Nonetheless, the court found the “express threat in the ODNR 

notice sufficiently coercive so as to trigger the protections of Garrity.” Id. 

{¶ 38} Although Graham does not answer the question of whether Schimmel’s 

situation involved a “penalty” as he suggests, it does indicate that the Supreme Court of 

Ohio has not adopted a narrow view of the privilege. Specifically, the employees in 

Graham were subject to various discipline, up to, but not necessarily requiring, removal. 

And, as the court said, there was no express threat; instead, the court evaluated the 

situation under the approach it adopted, using subjective and objective criteria. In 

contrast, the officers in Garrity were explicitly told that refusal to answer would make them 

“subject to removal from office.” Garrity, 385 U.S. at 494, 87 S.Ct. 616, 617, 17 L.Ed.2d 

562. Similarly, Schimmel was expressly told that if he stopped the polygraph 

examination, he would forfeit all right to future employment – not just with the Sheriff’s 

Department, but also with Clark County. Whether Schimmel occupied the same position 

as the employees in these other cases is a different issue, however. 

{¶ 39} As was noted, Schimmel relies on Frierson, 945 F.2d 650, in which the Third 
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Circuit Court of Appeals commented that Turley had “declared unconstitutional a New 

York statute that required that public contractors either waive immunity and testify 

concerning their contracts or lose their current contracts and future contracting privileges.” 

Id. at 659, citing Turley, 414 U.S. at 77-84, 94 S.Ct. 316, 38 L.Ed.2d 274. After making 

this observation, the court of appeals appeared to disagree with the United States 

Supreme Court’s holding “that both of these sanctions were ‘penalties.’ ” Id. 

{¶ 40} In this regard, the Third Circuit Court of Appeals opined that “loss of current 

contracts would seem to be a ‘penalty’ and loss of future contracting privileges a ‘denied 

benefit’ within the meanings generally ascribed to those terms.” Id. However, the court 

of appeals then went on to note that the Supreme Court’s decision in “Cunningham, 431 

U.S. at 804-08, 97 S.Ct. at 2135-37, also did not distinguish between termination of 

present office and disqualification from holding any office for five years; both were 

penalties that could not be imposed on the exercise of the privilege.” Id. Accordingly, 

the court accepted the concept that both current and future losses can be penalties. 

{¶ 41} In contrast to Garrity and other “penalty” cases, Frierson did not involve 

employment. Instead, it addressed “certain aspects of the interplay between the Fifth 

Amendment privilege against self-incrimination and § 3E1.1 of the [Federal Sentencing] 

Guidelines, which authorizes a two-level sentence reduction for acceptance of 

responsibility.” Frierson at 652. Ultimately, the court of appeals concluded in Frierson

that “an increase in sentence or a denied reduction in sentence is a penalty in the context 

of Fifth Amendment jurisprudence.” Id. at 659-660. The court observed that “a number 

of courts, including the Supreme Court and this court, have recognized that denial of 

leniency is a penalty which cannot be imposed for the defendant's assertion of his or her 
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Fifth Amendment privilege.” Id. at 659. 

{¶ 42} Despite this holding, Frierson also concluded that the situation before it did 

not fall within the exception to assertion of the privilege that “arises when the government 

threatens to penalize the assertion of the privilege, and thereby ‘compels’ incriminating 

testimony.” Id., quoting Murphy, 465 U.S. at 434-439, 104 S.Ct. 1136, 79 L.Ed.2d 409, 

and citing Garrity, 385 U.S. at 496-500, 87 S.Ct. 616, 17 L.Ed.2d 562. The court found 

its own situation more analogous to Murphy, which held a probationer’s statement to his 

probation officer “voluntary and admissible” because “the threatened penalty must be 

specifically addressed to the exercise of the privilege for the defendant to claim ex post 

that he had been compelled to speak; it was not enough that the defendant may have 

reasonably believed his probation would be revoked for failing to answer his probation 

officer's questions.” Id. at 661, citing Murphy at 436-439. 

{¶ 43} Ironically, the situation in Frierson seems similar to what was involved in the 

Supreme Court of Ohio’s decision in Graham – a situation where an express threat does 

not exist, but the party claiming the benefit of an exception to assertion of the privilege 

argues that he or she “reasonably believed” that the penalty would occur if the privilege 

were asserted. In this regard, the court of appeals stated in Frierson that: 

Importantly, the Court [in Murphy] noted that the case would have 

come out the other way if either of the following had occurred. If Murphy 

had asserted his privilege to the probation officer and the state had revoked 

Murphy's probation because of that assertion, that would have been an 

unconstitutional penalty imposed on the exercise of the privilege. Id. at 

438, 104 S.Ct. at 1148. Similarly, if Murphy had been told that he could 
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not refuse to answer on Fifth Amendment grounds - i.e., that his probation 

would be revoked if he claimed the privilege - and Murphy then talked to the 

probation officer, the statements would be considered “compelled” and 

could not be used against Murphy. Id. at 435, 104 S.Ct. at 1146. Because 

neither situation occurred in Murphy's case, however, the statements were 

voluntary and admissible. Minnesota had not taken the “extra, 

impermissible step” of threatening a penalty on the assertion of the 

privilege. Id. at 436, 104 S.Ct. at 1147. 

Justice Marshall in dissent in Murphy argued that the “reasonable 

layman” would understand the requirement that he be truthful “in all matters” 

or lose probation to include a threat that probation would be revoked if he 

refused to answer on Fifth Amendment grounds. Id. at 447, 104 S.Ct. at 

1152 (Marshall, J., dissenting). The majority disagreed. For statements 

to be considered compelled, the Court required that the threat of 

punishment be conditioned on the assertion of the privilege; a general 

requirement of truthfulness or disclosure could not be used after the fact to 

claim that incriminating statements had been compelled. 

Frierson, 945 F.2d at 661, discussing Murphy, 465 U.S.at 435-438 and 447, 104 S.Ct. 

1136, 79 L.Ed.2d 409. 

{¶ 44} Based on Murphy, the court of appeals held in Frierson that “requiring a 

defendant to accept responsibility in order to obtain a sentence reduction is not a threat 

to impose punishment for an assertion of the privilege.” Id. at 662. The court stressed 

that Frierson had made a voluntary statement to the FBI before he was indicted, and did 
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not elect to assert his Fifth Amendment privilege. Instead, he told the FBI that he did not 

have a gun during the bank robbery for which he was convicted. Id. The government 

also made no threats to Frierson. 

{¶ 45} In addition, the court noted that during Frierson’s presentence interview with 

the probation officer, “[t]he government made no threat directed against assertion of the 

privilege.” Id. at 661-662. “Nevertheless, Frierson once again failed to assert his 

privilege.” Id. at 662. Finally, before the presentence interview, the government had 

given Frierson a copy of a case from a Delaware district court. 

{¶ 46} In that case, which was nearly identical to Frierson’s, another court had 

refused to allow a reduction based on the defendant’s contention that responsibility had 

been accepted. Id. The case did not concern a threat of imposing a penalty if the 

privilege were asserted; it simply “stated more explicitly what the Guidelines themselves 

require: that a defendant must accept responsibility for relevant conduct beyond the 

offense of conviction to obtain the reduction.” Id. Thus, the court of appeals concluded 

that “[a]s with the Guidelines themselves, this [providing a copy of the decision] was not 

a threat sufficient under Murphy to hold any subsequent statement ‘compelled.’ ” Id. 

{¶ 47} Despite the fact that the defendant in Frierson failed to prevail, the court, 

nonetheless, adopted the position that denying a reduction in sentence is a “penalty” to 

which the Fifth Amendment applies. However, not all federal circuits agree with Frierson. 

Prior to oral argument, the State filed a notice of additional authorities that it intended to 

assert during argument. Of relevance is a decision of the Sixth Circuit Court of Appeals 

in United States v. Clemons, 999 F.2d 154 (6th Cir.1993). 

{¶ 48} In Clemons, the defendant argued “that the district court violated his Fifth 
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Amendment privilege not to incriminate himself when it refused to award him the two-level 

reduction for acceptance of responsibility because he had not admitted the drug dealing 

he engaged in before the onset date of the indictment as described in the testimony of 

[his drug courier].” Clemons at 158. The guidelines in effect at the time allowed courts 

to reduce a defendant’s base offense level by two levels if a defendant showed 

acceptance of personal responsibility for his conduct. Id. 

{¶ 49} The Sixth Circuit Court of Appeals noted that there was a “deep division” 

among circuit courts about whether conditioning the two-level reduction on acceptance of 

responsibility would violate a defendant’s Fifth Amendment rights. Id. at 159. 

Regarding this matter, the court stated that cases finding possible violations “generally 

follow a line of Supreme Court cases holding that the government ‘may not impose 

substantial penalties because [an individual] elects to exercise his Fifth Amendment right 

not to give incriminating testimony against himself.’ ” Id. at 159, quoting Cunningham, 

431 U.S. at 805, 97 S.Ct. 2132, 53 L.Ed.2d 1. Cunningham involved an attorney’s 

refusal to sign an immunity waiver, and the refusal “automatically divested him of all his 

party offices and activated the five-year ban on holding any public or party office.” 

Cunningham at 804. When discussing the penalty cases, the Sixth Circuit Court of 

Appeals also mentioned Garrity, Murphy, Turley, and Gardner. Clemons at 159. 

{¶ 50} In Clemons, the Sixth Circuit Court of Appeals stressed that several circuits 

had avoided “the impact of the Supreme Court[’]s so-called ‘penalty cases’ by 

distinguishing between a ‘denied benefit’ and a ‘penalty.’ These circuits hold that denial 

of the two-level reduction does not constitute a penalty and thus does not implicate the 

Fifth Amendment.” (Citations omitted.) Clemons, 999 F.2d at 159. 
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{¶ 51} Clemons did not discuss the meaning of the term “denied benefit,” but did 

adopt the reasoning of the Fourth Circuit Court of Appeals in United States v. Frazier, 971 

F.2d 1076 (4th Cir.1992). Clemons at 161. “Denied benefit” appears to refer to the 

statement in Frazier concerning the government’s position that “reduction [of sentence] is 

merely a benefit, or an act of leniency, the denial of which because the defendant refuses 

to provide potentially incriminatory information does not penalize a defendant's exercise 

of his Fifth Amendment rights.” (Footnote omitted.) Id. at 1081. In the omitted 

footnote, the Fourth Circuit Court of Appeals commented that: 

The government implicitly embraces the commonly held position that 

the conditioning of the receipt of a benefit upon the relinquishment of a 

constitutional right can never constitute compulsion within the meaning of 

the Fifth Amendment. In several cases, however, the Supreme Court has 

held that the conditioning of a benefit upon relinquishment of the Fifth 

Amendment right to remain silent constituted an impermissible penalty on 

assertion of that right. See, e.g., Minnesota v. Murphy, 465 U.S. 420, 435, 

104 S.Ct. 1136, 1146, 79 L.Ed.2d 409 (1984) (loss of benefit of probation); 

Cunningham, 431 U.S. at 807, 97 S.Ct. at 2136 (forfeiture of future political 

office); Turley, 414 U.S. at 77-84, 94 S.Ct. at 322 (loss of benefit of future 

contracting privileges). As discussed infra, we believe that under the caseby-case inquiry required by the Court's decisions, * * * the single, and 

determinative question is whether the choice presented to the defendant is 

of such a character that he is effectively forced to surrender his right to 

remain silent. See Garrity v. New Jersey, 385 U.S. 493, 496, 87 S.Ct. 616, 
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618, 17 L.Ed.2d 562 (1967) (the question is “whether the [defendant] was 

deprived of his ‘free choice to admit, to deny, or to refuse to answer’ ”) 

(quoting Lisenba v. California, 314 U.S. 219, 241, 62 S.Ct. 280, 292, 86 

L.Ed. 166 (1941)). 

(Citations omitted.) Frazier, 971 F.2d at 1081, fn. 8. 

{¶ 52} Following these observations, Frazier discussed the “penalty cases,” like 

Cunningham, Turley and Murphy. Id. at 1082-1083. The court then commented on a 

parallel line of Supreme Court cases in the plea bargain context, which did not cite the 

“ ‘penalty’ cases,” and also had “rejected claims that the offer of lower sentences in 

exchange for guilty pleas impermissibly compels a defendant to incriminate himself.” Id. 

at 1083, discussing Corbitt v. New Jersey, 439 U.S. 212, 216, 99 S.Ct. 492, 58 L.Ed.2d 

466 (1978). 

{¶ 53} In Frazier, the court concluded that the choice presented by the two-level 

reduction “acceptance of responsibility” guideline was more analogous to the plea bargain 

cases than “the choice faced by the plaintiffs in the employment penalty cases.” Id. at 

1084. The differences between those cases and employment cases included the 

“ ‘incidental consequence’ of a legitimate governmental practice of encouraging, through 

leniency in sentencing, both cooperation with law enforcement authorities and contrition 

on the part of the defendant.” (Citation omitted.) Id. They also included the fact that 

the choice confronting a defendant in a sentencing case “is not ‘likely to exert such 

pressure upon an individual as to disable him from making a free and rational choice.’ ” 

(Citations omitted.) Id. at 1085. 

{¶ 54} Although the case before us involves an employment situation, we need not 
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base our decision on whether it involves a “denied benefit” or a “penalty.” While 

Schimmel’s argument is persuasive in some respects, the circumstances before us are 

fundamentally different than the employment cases finding Fifth Amendment violations. 

Specifically, even though we reviewed cases in both state and federal jurisdictions, we 

could not find any situation in which Fifth Amendment rights have been extended to 

statements elicited during a pre-employment interview. 

{¶ 55} In Murphy, the Supreme Court stressed that “[i]n each of the so-called 

‘penalty’ cases, the state not only compelled an individual to appear and testify, but also 

sought to induce him to forgo the Fifth Amendment privilege by threatening to impose 

economic or other sanctions ‘capable of forcing the self-incrimination which the 

Amendment forbids.’ ” Murphy, 465 U.S. at 434, 104 S.Ct. 1136, 79 L.Ed.2d 409, 

quoting Cunningham, 431 U.S. at 806, 97 S.Ct. 2132, 53 L.Ed.2d 1. 

{¶ 56} For example, in Garrity, the New Jersey Supreme Court had ordered the 

state’s attorney general to investigate alleged irregularities in the municipal court. See 

State v. Naglee, 44 N.J. 209, 219, 207 A.2d 689 (1965), reversed by Garrity, 385 U.S. 

493, 87 S.Ct. 616, 17 L.Ed.2d 562. After a “long preliminary investigation,” a deputy 

attorney general scheduled the taking of statements from the police officer defendants, 

and a court stenographer recorded the statements. Id. By statute, these officers were 

required to testify on matters concerning their employment, and were subject to removal 

from their positions if they refused to testify. Id. at 220, citing former N.J.S. 2-A:81-17.1. 

As was noted, the United States Supreme Court held on appeal that the officers’ 

statements were coerced in violation of the Fifth Amendment, and could not be used in 

subsequent criminal proceedings. Garrity at 500. 
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{¶ 57} Likewise, in Turley, the architects were summoned to testify before a grand 

jury, and had no choice other than to testify and waive their Fifth Amendment rights, or to 

assert their rights and be penalized. Turley, 414 U.S. at 75-76, 94 S.Ct. 316, 38 L.Ed.2d 

274. The statutory penalty for asserting their rights was potential cancellation of existing 

contracts and disqualification from future contracting opportunity for five years. Id. at 71, 

fn.1. In Cunningham, the attorney was subpoenaed to appear before a grand jury and 

refused to waive immunity. By statute, his refusal terminated his current political party 

office and prevented him holding any other public or party office for five years. 

Cunningham, 431 U.S. at 802-803, 97 S.Ct. 2132, 53 L.Ed.2d 1. 

{¶ 58} The court stressed in Garrity that “[w]here the choice is ‘between the rock 

and the whirlpool,’ duress is inherent in deciding to ‘waive’ one or the other.” Garrity at 

498. However, no such rock and whirlpool existed in the case before us. In contrast to 

the above cases, Schimmel was not compelled to appear before any kind of inquiry or 

judicial body, nor was he required to do anything. Instead, he voluntarily applied for a 

job with the Sheriff’s Department, and chose to give statements and take a polygraph. 

Notably, this was not a criminal investigation; it was simply part of a routine process of 

applying for a law-enforcement position. 

{¶ 59} In O'Hartigan v. Dept. of Personnel, 118 Wash.2d 111, 821 P.2d 44 (1991), 

an applicant for a position with the Washington State Patrol was told that as part of the 

screening process, she would have to take a polygraph examination. Id. at 114. After 

refusing to take an examination, she was told that she could not be considered for a wordprocessing job for which she had applied. Id. at 116. The applicant then brought suit 

against the Washington State Department of Personnel, claiming that the polygraph 
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examination violated her state and federal rights to privacy. Id. However, the Supreme 

Court of Washington disagreed. 

{¶ 60} The court noted that under an applicable Washington State statute, 

polygraph testing was generally prohibited for employment screening purposes, but was 

allowed for initial applications with law enforcement agencies. Id. at 119. According to 

the court, this distinction was supported by the State’s legitimate governmental interest 

“in providing its citizens with law enforcement agencies free of corruption and secure in 

their employees' access to sensitive information.” Id. In this vein, the court emphasized 

that other screening methods asserted by the applicant, “such as probationary periods 

and background checks, are, as the State argues, vulnerable to dishonest responses by 

either an applicant or the applicant's background references and were not deemed 

adequate by the Legislature. Moreover, a probationary period allows persons access to 

law enforcement premises, documents, and perhaps investigative information during the 

evaluation period, before a satisfactory assessment can be made.” Id.

1 

{¶ 61} Ohio does not have a similar statute, but polygraph examinations have been 

used for many years in connection with public service positions. See, e.g., Vincent v. 

Civ. Serv. Comm., City of Zanesville, 54 Ohio St.3d 30, 560 N.E.2d 226 (1990) (applicants 

were improperly removed from civil service eligibly list for firefighter positions after they 

disclosed prior drug use during polygraph examinations); State v. Karnhem, 2d Dist. 

Miami No. 78-CA-17, 1979 WL 208592, *1-2 (Apr. 6, 1979) (testimony about routine preemployment polygraphs as well as polygraphs administered to undercover agent after the 

 

1 The court did indicate that the State was required to adopt guidelines for follow-up 

questions, to prevent “ ‘unbounded, standardless inquiry.’ ” O'Hartigan, 118 Wash.2d at 

121, 821 P.2d 44, quoting Thorne v. City of El Segundo, 726 F.2d 459, 470 (9th Cir.1983). 
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defendant’s alleged crimes was improperly admitted to buttress agent’s credibility. 

However, the defendant waived any error by failing to object at an appropriate time or to 

request curative instructions).2 

{¶ 62} In addition, Ohio courts have held that results of polygraph tests 

administered by a police agency for employment purposes are public records and are 

subject to disclosure. See, e.g., State ex rel. Lorain Journal Co. v. Lorain, 87 Ohio 

App.3d 112, 115, 621 N.E.2d 894, (9th Dist.1993) (polygraph records not exempt from 

disclosure); State ex rel. Multimedia, Inc. v. Snowden, 72 Ohio St.3d 141, 143, 647 N.E.2d 

1374 (1995). (“[i]nvestigatory reports compiled by law enforcement agencies to assist 

employment decisions do not constitute confidential law enforcement investigatory 

records excepted from disclosure under R.C. 149.43, since they do not directly involve 

law enforcement.”) 

{¶ 63} In short, there was no compelled testimony before an investigatory body or 

proceeding in this case that would warrant application of a suppression remedy. 

Schimmel also lacked any property interest in employment with the Sheriff’s Department 

or with Clark County. “Property interests * * * are not created by the Constitution. 

Rather they are created and their dimensions are defined by existing rules or 

understandings that stem from an independent source such as state law – rules or 

understandings that secure certain benefits and that support claims of entitlement to 

those benefits.” Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 577, 578, 92 

 

2 Federal law does ban the use of polygraphs in various situations, including the preemployment process, but exempts the United States government, as well as state and 

local governments and their political subdivisions, from the prohibition. See 29 U.S.C. 

2002 and 29 U.S.C. 2006(a), which are part of the Employee Polygraph Protection Act of 

1988. 
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S.Ct. 2701, 33 L.Ed.2d 548 (1972). 

{¶ 64} In this vein, the Supreme Court of Ohio has held that “it is virtually axiomatic 

that there is no constitutionally protected right to public employment.” (Citations 

omitted.) Walton v. Montgomery Cty. Welfare Dept., 69 Ohio St.2d 58, 64, 430 N.E.2d 

930 (1982). Even probationary civil service employees do not have a property interest 

in continued employment. State ex rel. Rose v. Ohio Dept. of Rehab. & Corr., 91 Ohio 

St.3d 453, 457, 746 N.E.2d 1103 (2001). Accord Fletcher v. Ohio Dept. of Transp., 10th 

Dist. Franklin No. 12AP-46, 2012-Ohio-3920, ¶ 11. 

{¶ 65} Schimmel was free to apply for employment, and he was also free to 

disengage himself from the employment process at any time. He did not do so, and we 

find no evidence of coerced testimony within the meaning of the Fifth Amendment. 

Accordingly, the State’s sole assignment of error is sustained, and the judgment of the 

trial court will be reversed. 

III. Conclusion 

{¶ 66} The State’s sole assignment of error having been sustained, the judgment 

of the trial court is reversed, and this cause is remanded for further proceedings. 

. . . . . . . . . . . . . 

TUCKER, J., concurs. 

FROELICH, J., concurring in judgment only. 
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Copies mailed to: 

Andrew R. Picek 

Andrew P. Pickering 

Eric E. Willison 

Bradley P. Koffel 

Hon. Richard J. O’Neill