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In re Misc. 4281

Court of Special Appeals of Maryland

December 2, 2016

In re: Misc. 4281

          Wright, Arthur, Leahy, JJ.

          OPINION

          Leahy, J.

         We are presented with an issue that sits at the juncture of the broad inquisitorial authority of the grand jury and the Fifth Amendment privilege of government employees against self-incrimination as expressed in Garrity v. New Jersey, 385 U.S. 493, 500 (1967).[1] A grand jury sitting in Prince George's County (the "County") subpoenaed the County government to produce records, including employee interviews, that the County's Fire/Emergency Medical Services Department (the "Department") collected during an investigation into certain, potentially criminal, acts of its employees. The County moved to quash the subpoena on the ground that producing those records would violate the employees' Fifth Amendment rights because employees implicated in the investigation made statements to investigators that were coerced under a Department policy that requires employees to cooperate with internal investigations under threat of losing their jobs.

         After a hearing, the Circuit Court for Prince George's County issued an order denying the County's motion to protect the videos, dispatch calls, and witness statements, and granting the County's motion to protect the firefighters' coerced statements and the Department's investigation report. The State appealed and presents the single question: "Did the circuit court erroneously quash that part of the grand jury subpoena seeking the involved firefighters' statements and the County Fire Department's investigatory report?"

         On October 21, 2016, the State filed a motion for expedited decision, alerting this Court that the statute of limitations on any possible indictment for assault would run December 8, 2016. After hearing the appeal on November 7, 2016, this Court issued a per curiam order on November 23, 2016, reversing that part of the circuit court's April 12, 2016 order that granted the County's motion for protective order. This opinion explains that order.

         We hold that the Fifth Amendment privilege against self-incrimination does not prohibit a grand jury from compelling the production of a public agency's internal investigative reports containing coerced self-incriminating statements of its employees. The employees may, however, move to suppress the evidence and its fruits if the government seeks to use them against the employees in a criminal proceeding.

         BACKGROUND

         At the outset, we caution that by virtue of the secrecy historically afforded to grand jury investigations, the facts that form the crux of this grand jury's inquiry are largely unknown to this Court and are under seal. Our factual recitation is based exclusively on the publicly available transcript of the suppression hearing.[2]

         On behalf of the State of Maryland, the grand jury in Prince George's County served a subpoena duces tecum on the Office of the County Attorney, as counsel for the Department. The subpoena requested the Department produce "any and all documents related to an investigation into an assault that took place on December 8, 2015 at 5409 75th Avenue, Hyattsville, Prince George's County, Maryland, during a fire at said location to include but not limited to videos, dispatch calls, witness and respondent statements and police reports." The County filed for a protective order in the Circuit Court for Prince George's County asking the court to quash the subpoena: (1) because it contained employee personnel records; and (2) because the County claimed that the report contained a number of "Garrity-related statements."

         At the hearing on April 11, 2016, the County explained that two career firefighters filed with the Department a statement of charges against two volunteers involved in the alleged assault at 75th Avenue. In response, Department Battalion Chief Ava C. Hagood conducted an investigation and issued a report based on emails, photographs, a video clip, and a number of witness interviews. The County Attorney proffered that about a dozen of the witness statements-including a written statement from each of the firefighters involved in the altercation-were compelled under a Department policy that requires an employee to cooperate with internal investigations or lose his or her job. The County offered the investigation report for in camera review, but the court declined.

         After taking the parties' arguments under advisement, the circuit court issued a protective order with respect to "the compelled statements of the respondent firefighters and the report proposed by the Fire Department's investigation[, ]" but denied the protective order "as to videos, dispatch calls, and witness statements." The State noted its timely appeal to this Court.[3]

         DISCUSSION

         We distill from the State's contentions of error three distinct challenges to the court's order. First, the State presents the unpreserved argument that, because the Fifth Amendment is a personal right, the Department lacked standing to assert the privilege on behalf of individual firefighters. Second, the State's central argument is that the Fifth Amendment is not implicated when a grand jury subpoenas and reviews documentary evidence containing potentially incriminating statements, even when the government has "coerced" the statements from its employees.[4] And third, the State argues that, should we find for the County on the first two points, the proper disposition is to remand the case for an evidentiary hearing in the circuit court to determine whether the Department actually compelled the firefighters' statements-an issue the circuit court accepted based only on the County Attorney's proffer.

         I.

         We first address the State's contention that the County does not have standing to assert a violation of the Fifth Amendment privilege against self-incrimination on behalf of its employees. The State admits that it did not raise the standing issue below, but asks this Court to consider it regardless of the fact that it was not preserved.

         In response, the County attempts to pivot away from the idea that it is protecting the employees' individual Fifth Amendment rights, by asserting that it has standing based on the "right of a public employer to insist that its employees answer job-related questions." Dep't of Pub. Safety & Corr. Servs. v. Shockley, 142 Md.App. 312, 324 (2002). The County claims that the subpoena in question interferes with the County's-and more generally, the public's-legitimate interest in public employees complying with job-related questions. The County's diversion to its own right to require employees to answer job-related questions does not, however, remove the Fifth Amendment underpinning of its challenge to the subpoena and the requirements for standing to assert a Fifth Amendment claim on behalf of another. Nevertheless, we decline to address the standing issue because it was not preserved[5] and because it implicates a constitutional question that is not necessary to decide today.[6] Curran v. Price, 334 Md. 149, 171 (1994) ("We have long adhered to the policy of not deciding constitutional issues unnecessarily.").

         II.

         The State asserts that the grand jury is entitled to subpoena the Department's report and witness statements because the Fifth Amendment only prohibits the grand jury from directly and actively violating the constitutional rights of the target(s) of its investigation- leaving the grand jury free to consider evidence that is already tainted at the time of production. According to the State, this is because the grand jury's historical role as an investigator, rather than an adjudicator, requires that courts afford the grand jury broad power to consider all available evidence regardless of that evidence's competency or admissibility at trial. The State adduces this argument from two progenies of Supreme Court decisional law: one holding that the Fourth Amendment's exclusionary rule is inapplicable to grand jury proceedings; and one holding that a court should not dismiss an indictment because the grand jury based its decision on tainted evidence, the admission of which at trial would violate the Fifth Amendment.

         The County responds that the cases on which the State relies are inapposite. First, the County distinguishes those cases upholding an indictment based on tainted evidence on the ground that in each case, the court's decision was ex post rather than ex ante actively permitting a grand jury to bypass an individual's constitutionally protected rights. Second, the County argues that the State's reliance on the Fourth Amendment exclusionary rule- which weighs the harm of allowing in the evidence against the benefits of deterring similar future police misconduct-is inapplicable because there is no state misconduct involved in compelling work-related incident statements from public employees. The County urges that rule articulated in Garrity v. New Jersey-that public employees' compelled statements may not be used in any criminal proceedings-applies to the grand jury proceedings in this case. 385 U.S. 493. The County also directs us to a case from the United States Court of Appeals for the Fourth Circuit, In re Grand Jury, John Doe No. G.J. 2005-2, 478 F.3d 581, 588 (4th Cir. 2007) ("John Doe"), in which that court affirmed a district court's decision to quash a subpoena after considering, in similar circumstances, the subpoena's Fifth Amendment implications.

         Because the court's order involves the interpretation and application of constitutional and decisional law, we undertake a de novo review in determining whether the trial court's conclusions were legally correct. In re Nick H., 224 Md.App. 668, 681 (2015).

         A. The Fifth Amendment Privilege

         The Fifth Amendment to the United States Constitution, incorporated against the states by the Fourteenth Amendment, [7] provides that "[n]o person shall . . . be compelled in any criminal case to be a witness against himself." Similarly, Article 22 of the Maryland Declaration of Rights provides that "no man ought to be compelled to give evidence against himself in a criminal case."[8]

         "It is important, in applying constitutional principles, to interpret them in light of the fundamental interests of personal liberty they were meant to serve." Couch, supra, 409 U.S. at 336. The Fifth Amendment protects a claimant from "'the cruel trilemma of self-accusation, perjury or contempt[, ]'" based, in part, on "'our fear that self-incriminating statements will be elicited by inhumane treatment and abuses.'" Id. at 328 (quoting Murphy v. Waterfront Comm'n of N.Y. Harbor, 378 U.S. 52, 55 (1964)). The privilege against self-incrimination does not, however, grant speakers a liberty interest in being free from inquiry. Smith v. State, 394 Md. 184, 212 (citations omitted). "For the history of the privilege establishes not only that it is not to be interpreted literally, but also that its sole concern is, as its name indicates, with the danger to a witness forced to give testimony leading to the infliction of penalties affixed to the criminal acts[.]" Ullmann v. United States, 350 U.S. 422, 438-39 (1956) (footnote, citation, and internal quotations marks omitted); see also Kastigar v. United States, 406 U.S. 441, 453 (1972) (explaining that the purpose of offering derivative use immunity to witnesses testifying before a grand jury is to ensure "that the testimony cannot lead to the infliction of criminal penalties on the witness"). Further, the Supreme Court has directed that "[t]he central standard for the privilege's application has been whether the claimant is confronted by substantial and 'real, ' and not merely trifling or imaginary, hazards of incrimination." Marchetti v. United States, 390 U.S. 39, 53 (1968).

         In determining whether the State has violated an individual's privilege against self-incrimination, we are mindful of the scope of the constitutional right as well as the rules courts have created to help safeguard the right. Although the privilege against self-incrimination is fundamentally a "trial right of criminal defendants[, ]" United States v. Verdugo-Urquidez, 494 U.S. 259, 264 (1990) (emphasis added), the Supreme Court has found it "necessary to allow assertion of the privilege prior to the commencement of a 'criminal case' to safeguard the core Fifth Amendment trial right." Chavez v. Martinez, 538 U.S. 760, 771 (2003); Kastigar v. United States, 406 U.S. 441, 444-45 (1972) (reasoning that an individual may assert the privilege "in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory; and it protects against any disclosures which the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used"). Prophylactic rules and grants of immunity in non-criminal cases help further "preserve[] the core ...


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