In Re Investigative Subpoena Re Homicide of Morton , 258 Mich. App. 507 ( 2003 )

671 N.W.2d 570 (2003) 258 Mich. App. 507

In the Matter of Investigative Subpoena Re Homicide of Lance C. MORTON.
People of the State of Michigan, Petitioner-Appellee,
v.
City of Garden City, Respondent-Appellant, and
Michigan State Police Troopers Association, Inc., Amicus Curiae.

Docket No. 247929.

Court of Appeals of Michigan.

Submitted September 3, 2003, at Detroit. Decided September 18, 2003, at 9:00 a.m. Released for Publication November 10, 2003.

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, Michael E. Duggan, Prosecuting Attorney, and Timothy A. Baughman, Chief of Research, Training, and Appeals, for the petitioner.

Cummings, McClorey, Davis & Acho, P.L.C. (by Owen J. Cummings and Gail P. Massad), Livonia, for the respondent.

Mark A. Porter, East Lansing, for the Michigan State Police Troopers Association, amicus curiae.

Before: O'CONNELL, P.J., and JANSEN and FORT HOOD, JJ.

O'CONNELL, P.J.

Respondent Garden City appeals as of right the trial court's order requiring it to produce Garrity^[1] statements three of its police officers made regarding the shooting death of Lance C. Morton. We affirm.^[2]

This case arose when the Wayne County Prosecuting Attorney requested authorization to issue an investigative subpoena that would require Garden City's police chief to turn over police reports and statements he possessed regarding Morton's homicide. The trial court authorized the subpoena, but Garden City's police chief objected to it under M.C.L. § 767A.6, arguing that producing the statements would violate the police officers' right to be free from self-incrimination under the Fifth Amendment and the Fourteenth Amendment. The trial court upheld the subpoena, ruling that the statements fell within the subpoena's ambit and that Garden City failed to demonstrate that the subpoena was not "appropriate." M.C.L. § 767A.6(4).

On appeal, Garden City again argues that the Fifth Amendment and the Fourteenth Amendment preclude it from producing the police officers' statements and reports. We disagree. We review de novo issues of constitutional law. People v. Mackle, 241 Mich.App. 583, 602, 617 N.W.2d 339 (2000).

Garden City lacks standing to invoke its officers' Fifth Amendment rights, because those rights are personal to the declaring officers. People v. Safiedine, 152 Mich.App. 208, 212, 394 N.W.2d 22 (1986). Because the officers did not intervene in the action and the police chief does not assert the right on his own behalf, Garden City and its police chief hold an unprivileged position as mere possessors of the documents. Couch v. United States, 409 U.S. 322, 335-336, 93 S. Ct. 611, 34 L. Ed. 2d 548 (1973).

Furthermore, each officer who made a statement under threat of discipline automatically received immunity from the use of the statement in any subsequent criminal prosecution against the officer, so Garden City fails to show how the statements could incriminate the officers in violation of the Fifth Amendment. Garrity, supra at 500, 87 S. Ct. 616; In re Leon Jenkins, 437 Mich. 15, 26, 465 N.W.2d 317 (1991). While Garden City correctly argues that the police officers could have refused to answer incriminating questions in an investigative proceeding, Garden City mistakes this right for one that would allow the officers to determine which investigative arm of the state could view statements they already delivered to governmental authorities. Because this case deals only with the production of the statements and not their improper use in a criminal proceeding against the officers, the Fifth Amendment has no application here. See Gardner v. Broderick, 392 U.S. 273, 278, 88 S. Ct. 1913, 20 L. Ed. 2d 1082 (1968). It follows that Garden City misplaces its reliance on the privilege exception to civil discovery found in MCR 2.302(B)(1).

Garden City also argues, however, that the public policy behind the Freedom of Information Act, M.C.L. § 15.231 et seq., should prevent the enforcement of the subpoena, because the act expressly excludes public disclosure of "personnel records of law enforcement agencies." M.C.L. § 15.243(1)(s)(ix); Sutton v. Oak Park, 251 Mich.App. 345, 349, 650 N.W.2d 404 (2002). We disagree. We would not advance the act's public policy by misapplying it to a situation where one governmental entity charged with enforcing the law withholds information from another governmental entity with the same role.

Affirmed.

NOTES

[1] Garrity v. New Jersey, 385 U.S. 493, 87 S. Ct. 616, 17 L. Ed. 2d 562 (1967).

[2] Petitioner, the people of the state of Michigan, argues that we lack jurisdiction in this case because the trial court's order to comply with the subpoena was not a final order. See In re Grand Jury Matter Impounded, 703 F.2d 56, 58 (C.A.3, 1983). Rather than address the merits of this issue, we treat respondent's claim of appeal as an application for leave to appeal and grant it. MCR 7.205(D)(2); Oakland County Prosecutor v. Forty-Sixth Dist. Judge, 72 Mich.App. 564, 567, 250 N.W.2d 127 (1976).