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State of Nebraska, appellee, v.

Michael S. Weichman, appell

___ 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 question 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 effectively 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 reasonable 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 subjecting an employee to termination for the failure to provide a statement is 
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highly relevant, though not usually dispositive, in determining whether a 

subjective belief is objectively reasonable. Under this subjective/objective 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, MillerLerman, Cassel, a

Heavican, C

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 statements 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 polygraph examination.
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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 admitted 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 occasions 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 investigation, 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 polygraph 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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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 examination. 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’ imprisonment. 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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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 generally not self-executing. “[I]n the ordinary case, if a witness 

under compulsion to testify makes disclosures instead of claiming 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 exceptions 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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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 administration 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 proceedings 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 interviewee 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 determining 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, noting 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 statutorily mandated firing is involved.22

Thus, under Indorato and subsequent cases following its reasoning, 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 mandating such discharge.

[4-7] In contrast to the Indorato line of cases, other courts 

have concluded that an implicit threat of termination of employment 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 objectively 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 determining whether a subjective belief is objectively reasonable.25

Under this test, a court examines the totality of the circumstances 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 employment would be terminated for failing to submit to the polygraph 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 subjective/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 conversation 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 examination. 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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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, regulation, 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 admissible, 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.

Affirme