No. 3-09-0524 consolidated with Nos. 3-09-0525 and 3-09-0526

______________________________________________________________________________ Filed April 1, 2010 IN THE AP PE LLATE COU RT OF ILLIN OIS THIR D DI STRICT A.D., 2010

______________________________________________________________________________ THE PEOPLE OF THE S TATE OF ) Appeal from the Circuit Court ILLINOIS ) for the 1 0th Judicial Circuit, ) Peoria Co

unty , Illi nois, Plaintiff -Appella nt, )

) v. ) 09-CF-292; 09-CF-293; 09-CF-364 ) ANDREW SMITH, ) ) The Honorable Defendant-Appellee, ) Michael E. Brandt ) Judge , Pres idin g. AND ) ) THE PEOPLE OF THE S TATE OF ) IL LI NOIS, ) ) Appellee, ) ) v. ) ) ANDREW R. SMITH, ) ) Appellan t, ) ) AND ) ) THE PEOPLE OF THE S TATE OF ) IL LI NOIS, ) ) Appellee, ) ) v. ) )2

GERAL D SUEL TER, ) ) Appellan t, )

) AND ) ) THE PEOPLE OF THE S TATE OF ) IL LI NOIS, ) ) Appellee, ) ) v. ) ) JEREMY LAYMAN, ) ) Appellant. )

______________________________________________________________________________ JUSTICE McDADE d

elivere d the opini on of the c ourt:

______________________________________________________________________________ This is an appeal from the trial court’s order to partially quash a subpoena duces tecum served u pon the Pe oria polic e depar tment (PPD) . We affir

m. FACTS Defendants Andrew Smith, Gerald Suelter and Jerry Lay man (collectively de fendants) are officers in the PPD. Smith and Suelter were charge d by an indictment with four counts of official misconduct, aggrava ted battery, mob ac

tion, and battery. The

indictment alleged that Smith and Suelter shocked Bry ce Scott with a taser and struck him with their feet. L ayman wa s charged by

an indictment with four counts of obstructing justice and one count of offic ial misconduct. The PPD conducted its own internal investigation of the Scott incident. Prior to giving their sta tements, S mith, Suelte

r and L ay men each signed

an individ

ual form e

ntitled “G arrity3

Warnings.” The form had been prepa red by the PPD’s Off

ice of Professional Standards and was presented to them by of

ficers in that office. Each form stated: “On February

5, 2009, *** at Peoria Police Department, I was orde red to submit this rep ort by Sgt. Michael Bola

nd. I submit this report (give statement) at his order as a c ondition of employment. I

n view of possible job forfeiture, I have no alternative but to abide by this order. It is my belief and understanding that the department requires this report (statement) solely and exclusively for interna l purposes and that this report (statement) will not and cannot be used a gainst me by thi s depa rtmen t in an y subsequ ent pr oceedi ngs other than disciplinary pr oceedings within the confines of the department itself. For any and all other purposes, I her eby rese rve my constitutional right to remain silent under the FI FTH and FOURTEENTH AMENDMENTS to the UNITED STATES CONSTITUTION and other rights prescribed by law. Further, I r

ely specific ally upon the protection afforded me under the doctrines se t forth in Garrity v. New Jersey , 385 U.S. 493 (1967), and Spevac k v. Klein , 385 U.S. 511 (1967), should this report (statement) be used for any other purpose whatsoever.” On April 3, 2009, the State served a subpoena duces tecum upon the PPD. The subpoena1 Although the city of Peoria moved for reconsideration of this finding, it has not been appeale d and the r

uling wit h rega rd to othe r police office rs’ state ments is not

before us. 4 sought any a

nd all statements made by PPD office rs in the course of the PPD’s internal investig ation of the Scott inc ident. The State spe cifical ly s ought a ny p olice re

ports or s tatement s made by def

endants. The State also requested any police reports or statements made by Officers James Krid

er, Conor Wowra and Tim Wrig

ht. The city of Peoria

(the city) filed a

motion to quash the subpoena duces tecum . The motion asserted that the documents requested in the State’s subpoena duces tecum were protected against disclosure under Garrity v. New Jersey , 385 U.S. 493, 17 L. Ed. 2d 562, 87 S. Ct. 616 (1967). Suelter also filed his own individual motion to quash relying on Garrity . Lay

man filed a motion to adopt the city’s motion. Smith submitted a written memorandum of law in support of his argument that the city ’s motion should be granted. On April 23, 2009, a hearing was held on the motions to quash. The hea ring consisted only of arg

uments and colloquy among counsel; no witnesses testified. Ultimately, the trial c ourt ordered that the statements be turned over to the court f or examination of the statements before ruling on the motions to quash. On May 15, 2009, the trial c ourt issued a written order granting the city’s motion and Suelter’s motion to quash the subpoena with regard to any statements by defe

ndants. The court further held that any

statements by other PPD office rs not charged with a crime wer e not subject to this order quashing the subpoena. 1 Specific ally , the orde r stated, in pertine

nt part: “The [defendants’] statements tendered are cle arly subject to *** Garrity . ‘Garrity warnings’ were give n to each prior to the5 statemen t. Thus, the

defenda nts have a 5th Amendment right that neither statement, nor the fruit of the statement, may be used against the officer in any

criminal proceeding.” ANA LYSIS The sole question before us is whether the trial court err ed in quashing the State’s subpoena duces tecum on the basis that defendants’ statements were protecte d against disclosure under Garrity v. New Jersey , 385 U.S. 4 93, 17 L . Ed. 2d 562 , 87 S. Ct. 616 (1967). I n coming to this conclusion, the court relied upon the “Garrity Warnings” that each defendant sig ned. On appeal, however, the State argue s that the “ Garrity

Warning s” standi

ng alone are in sufficie

nt to support the court’ s finding that Garrity

immunity applies. The State requests that the cour t’s judgment be reversed and the matter r emanded for a United States v. Friedrick , 842 F.2d 382 (D.C. Cir. 1988) hearing on the voluntariness of the statements. At the outset, we clarify

the basis of our jurisdiction. Smith contends that this court does not have jurisdiction to review the trial court’s judgment because the defendants’ statements were not discoverable and were not evidence tha t could be presented to the trier of fact. We disag ree. Supreme Court Rule 604(a)(1) allows the State to obtain review of an “or der or judgment the substantive effect of which results in *** suppressing evide nce.” 210 Ill. 2d R. 604(a)(1)

. “For the purposes of this aspect of Rule 604(a)( 1), there is no substantive distinction between evidence that is ‘excluded’ and evidence that is ‘suppresse d.’ ” People v. Drum , 194 Ill. 2d 485, 491, 743 N.E.2d 44, 47 (2000). Thus, the pertinent question in determining whether jurisdiction exists under Rule 604(a)(1) is whether the order, in fact, is one that suppre sses or excludes evidence. Drum , 194 I ll. 2d at 49 1, 743 N.E .2d at 47. In ma king this determination, we

look to6

the substantive effect of the order rathe r than its form. Drum , 194 Ill. 2d at 489, 743 N.E.2d at 46. The trial court in Drum rejected the State’s request to admit the prior testimony of two witnesses who indicated they would not testify at the defe ndant’s trial. In reversing the trial court’s judgment, the supreme court held that evidenc e is “suppressed” within the meaning of Rule 604( a)(1) w

hen the tr ial cour t’s orde r “prev ents [the] in formation from be ing pre sented to the fact finder.” Drum , 194 Ill. 2d at 492, 743 N.E.2d at 48. The trial court’s order here has the sa me effect that the trial court’s order in Drum had. Specific ally , it preve

nts defe ndants’ s tatement s from be ing pre sented to the fact finder. While Smith calls our attention to the supreme court’s holding in People v . Truitt , 175 Ill. 2d 148, 676 N.E.2d 665 (1997), we find it distinguishable for the reasons ar ticulated in Drum . The Drum court stated: “This court in Truitt concluded that the State could not appeal from a pretrial order rega

rding how it would be required to prove that certain material was an illegal contr olled substance. The Truitt court reasoned that the pretrial order did not pre vent any informat ion from b eing pr

esented to the jury . Rather, the sole impact of the order was on the means by which that information was presented.” Drum , 194 Ill. 2d at 492, 743 N.E.2d at 48. Because the State is permitted to take an interlocutory appeal from all trial court orders that substantially impair its prosecution of a ca se by preve nting the information from being presented to the fact finder, we find the trial c ourt’s order quashing the State’s subpoena duces7

tecum to be an appealable order under Rule 604(a )(1). We now turn to the merits of the State’s appeal and begin with a care ful review of the relevant caselaw In Garrity , several police officers were the target of an investigation conce rning the fixing of traff ic ticket s. Before being

questione d, each

office r was wa rned (1) that any thing he said might be used ag ainst him in

any state cr iminal pro ceeding ; (2) that he had the

privileg e to ref

use to answer if the disclosure would tend to incriminate him; but (3) that if he refused to answer he would be subject to removal from office. The office rs answered the questions; however, some of their answers were subsequently used in criminal proceedings aga inst them. The officers were convicted and appealed on the grounds tha t their statements were coerced, by reason of the fact th at, if t hey r efu sed to ans wer , t hey c oul d l ose th eir pos it io ns w it h t he p ol ice dep art men t. In agreeing with the office

rs, the United States Supreme Court stated: “The choice gi

ven [the of

ficers] was eithe

r to forf eit their jobs or to incriminate themselves. The option to lose their means of livelihood or to pay the pena lty of self-incrimination is the antithesis of free choice to speak out or to remain silent. That practice, like interrogation practices we reviewed in Miranda v. Arizona, 384 U.S. 436, 464-465, is ‘likely to exert such pressure upon an individual as to disable him from making a free and rational choice.’ We think the statements were infected by the coercion inherent in this scheme of questioning and ca nnot be sustained as voluntary unde r our prior decisions.” Garrity , 385 U.S. at 497-98, 17 L. Ed. at 565-66, 87 S. Ct. at 618-19.8

The Supreme Court ultimately conc luded that “the protection of the individual under the Fourteenth Amendment against coerc ed statements prohibits use in subsequent criminal procee dings of

statemen ts obtaine d under th

reat of removal from off ice, and that it exte

nds to all, whether they

are policemen or other members of our body politic.” Garrity , 385 U.S. at 500, 17 L. Ed. at 567, 87 S. Ct. at 620. Since the Supreme Court’s decision in Garrity , feder al and sta te court s asked to

apply its holding to the facts before them have deve loped two distinct lines of authority. The first line of authority stems from United Sta tes v. In dorato , 628 F.2d 711 (1st Cir. 1980), and holds that Garrity immunity will be applied only in situations where the record reveals an explicit or overt threat of mandatory

termination for a failure to answer questions. See State v. Li tvin , 147 N.H. 606, 794 A .2d 806 (2 002); People v . Coutu , 235 Mich. App. 695, 599 N.W.2d 556 (1999); People v. Bynum , 159 I ll. App. 3d 713, 512 N .E.2d 826 ( 1987); Commonwealth v. Harvey , 397 Mass. 351, 491 N.E.2d 607 (1986). The police officer in Indorato was questioned by both a supe rior officer and the Feder al Bureau of I

nvestigation (FBI

). The officer was subsequently convicted of several criminal offenses including perjury . On appeal, the officer, rely ing upon Garrity , claimed that his statements were coerced and inadmissable. I n rejecting the officer’s c laim of Garrity im mu ni ty, the court stated:

“In this case, there

was no explicit ‘or else’ choice and no statutorily mandated firing is involved. We do not think that the subjective fears of defendant as to what mig ht happen if he refused

to answe r his supe rior off icers a re suff icient to bring him

within9 Garrity ’s cloak of protection. *** * * * Here, [the officer] did not claim the privilege. He wa s not told that he would be dismissed if he failed to answer the questions asked. He was not asked to sign a waiver of immunity. There was no statute mandating dismissal for refusal to answer hang ing over his head. [The officer], here, was not, as in Garrity , put ‘between the rock and the whirlpool,’ [citation]; he was standing safely on the bank of the stream.” Indorato , 628 F.2d at 716-17. The sec ond line of

authority evolved f rom United States v. Friedrick , 842 F.2d 382 (D.C. Cir. 1988) , and hold s that Garrity immunity

will be ap

plied in sit

uations where the

office r has a subjective belief

that he wi ll be fire d for re fusing t o answer questions

and that b elief is objectively rea sonable under the circumstances. See McKinley v. City of M

ansfield , 404 F.3d 418 (6th Cir . 2005); United States v. Vangates , 287 F.3d 1315 (11th

Cir. 2002) ; State v. Chavarria , 2001-NM Ct-095, 13 1 N.M. 172, 33 P.3d 922; People v. Sapp , 934 P.2d 1367, (Colo. 1997). Thus, courts applying the Friedrick

line of a uthority have determined

that Garrity immunity may apply even whe

re the th reat of terminat ion is implie d rather

than explic it or over

t. The issue in Friedrick

was whet her the i mmunity , which a

n FBI agent was previ ously grante d in prior

intervie ws, contin

ued into the interview wher e he made

incrimina

ting sta tements. On appea l, the cou rt found t hat Garrity

immunity

would app ly if

the age nt believ ed that hi s statemen ts were b eing co

mpelled by th

reat of losing hi s job and that this bel ief was o bjective ly reasonable under the circumstances. Friedrick, 842 F.2d at 395. Thus, Friedrick held that2 We are aware of the First District’s holding in People v. Carey , 386 Ill. App. 3d 254, 898 N.E.2d 1127 (2008). Carey , however, is distinguishable on the grounds that it did not involve testimonial or communicative evidence. Inste ad, the Careycourt declined to apply the logic u nderl ying Garrity

to determine whether the defendant voluntarilyconsented to a breathalcohol test. Carey , 386 Ill. App. 3d at 268, 898 N.E.2d at 1141. 10 Garrity immunity

may apply even whe

re the th reat of terminat ion is implie d rather

than explic it

or overt. Friedrick, 842 F.2d at 395. The Bynum court ap

pears to be the onl

y I llinois cou

rt that ha s had the o

pportunit y to analyze Garrity

in light o f these precise

facts. 2 At the outs et, we no te that Bynum was decided one yea r before Friedrick . The police officer in Bynum was driving an unmarked squad car w hen it hit a bicyclist. The office r was later interviewed by a sergeant, a captain, a

nd an accident reconstructionist. During the interviews the officer made several admissions regarding the incident. The officer was subsequently convicted for failure to reduce spee d to avoid and accident and failure to exercise due ca re to avoid colliding with a bicy clist. The officer appealed, arguing that the State’s use at trial of his pre vious admissions violated his fifth amendment rights, because he was require d to make the statements and reports by police regulations. The Fourth District relied on Indoratoin finding that Garrity

had “not been given a broad interpretation.” Bynum , 159 Ill. App. 3d at 715, 512 N.E.2d at 827. Specifically , the court stated: “[The officer] maintains that here, unlike in Indorato , there was

significant evidence that an office r who disobeys an or

der to give information would be discharged. We disagre e. All such evidence3 At no point in this case’s odyssey has the State challenged the propriety of any of the specific claims contained within the “Garrity Warnings.” Instead, the

State merely conte

nds that the “Ga rrity Warning s,” stand

ing alone, are i

nsuffic ient to sup

port a fin ding tha t Garrity immunity exists. 11

called to our atte ntion indic ated tha

t dismissal would be po ssible but would not necessarily f ollow.” Bynum , 159 Ill. App. 3d at 715, 512 N.E.2d at 827. Here on appeal, the State

request s that we “ adopt the two-pron g test a rticulat ed in Friedrick .” Havin

g examine d the for

egoing authority , howeve r, we conclude that it is unnecessary

for the purpose of deciding this case to adopt either the two-pronged Friedrick test or the more narrow interpretation announce d in Indorato . Ins tead, we believe the holdin

g in Garrity is itself dispositive of the question before us. The “Garrity

Warnings,” which were signed by each defendant, clearly

assert that defendants were given the c hoice to “either forfeit their jobs or to incriminate themselves.” Garrity , 385 U.S. at 497, 17 L. Ed. at 565, 87 S. Ct. at 618. In c oming to this conclusion, we emphasize the following language : (1) “I was orde red to submit this report by Sgt. Michae l Boland,” (2) “I

submit this report (give statement) at his order as a condition of employ ment,” and (3) “I have

no alternative but to abide by this order.” 3 While we acknowledge the refe rence to “ possible job forfeiture” (emphasis added), we do not be lieve that these three words alone act to defea t the over all intent of the “G arrity

Warning s.” I

nstead, we find tha

t the “Ga rrity Warnings,” when read as a whole, r eveal that defendants were fa ced with the option of either incriminating themselves or losing their means of livelihood. Garrity , 385 U.S. at 497, 17 L. Ed.12

at 565, 87 S. Ct. at 618 . These d efenda nts did not g

ive their statemen ts in an unf

ettered exercise of free will, but rather to avoid a clearly expressed penalty for

choosing to remain silent. Statements given under such coercion ca nnot be sustained as voluntary. Garrity , 385 U.S. at 497, 17 L. Ed. at 565, 87 S. Ct. at 618. Moreover, we note that defe ndants expr

essly reserv ed, in all circ umstance s other than the int ernal in vestiga tion and a ny r esulting disciplina

ry procee dings, their constitutional right to remain silent and any protections afforded under Garrity

. Consequently, we find that the “ Garrity Warning s” standing alone are sufficient to support the application of Garrity

immunity. For the foregoing r

easons, we affirm the trial court’s judgment qua shing the State’s subpoena duces tecum with reg ard to an y st atements by d efenda nts. Affirmed. HOLDRI DGE, P.J., and LYTTON, J., concur.