State v. Connor , 124 Idaho 547 ( 1993 )

JOHNSON, Justice.

This is a criminal case. The first issue presented is whether the trial court had sufficient evidence upon which to base a finding that the accused had an objectively reasonable belief that he would be terminated from his employment as a state police officer if he asserted his right to remain silent under the Fifth Amendment. We conclude that the trial court did not have sufficient evidence upon which to base this finding. We also conclude that the trial court failed to determine whether the officer was in custody at the time he made the statements without having received advice of his Miranda rights. Therefore, we vacate the trial court’s suppression of the officer’s statements and remand the case for further proceedings.

I.

THE BACKGROUND AND PRIOR PROCEEDINGS.

The state charged Robert Connor, an Idaho state police officer, with the offense of sexual abuse of a minor. Connor filed a motion to suppress statements he made during an interrogation by an investigator.

During the hearing on the motion to suppress, Connor testified that he agreed to meet with the investigator because the district commander of the state police told him that he was required to do so. He testified that his understanding was that if he did not submit to the investigation, he would be terminated from his employment.

The trial court ordered the statements suppressed, stating that Connor had a “subjective but objectively reasonable belief that his use of the Fifth Amendment in response to questions would result in his losing his job.” The state admits that Con-nor was not advised of his Miranda rights prior to the interrogation. The trial court did not determine whether Connor was in custody at the time he made the statements. Instead, the trial court stated that as a state police officer, Connor was familiar with his Miranda rights. The state appealed.

II.

THE TRIAL COURT DID NOT HAVE SUFFICIENT EVIDENCE TO FIND THAT CONNOR HAD AN OBJECTIVELY REASONABLE BELIEF THAT HE WOULD LOSE HIS JOB IF HE DID NOT COOPERATE WITH THE INVESTIGATION.

The state asserts that the trial court did not have sufficient evidence to support a finding that Connor had an objectively reasonable belief that he would be fired if he failed to speak with the investigator. We agree.

In reviewing the trial court’s order suppressing Connor’s statements, we will not disturb findings of fact supported by substantial evidence. We exercise free review as to whether the statements should have been suppressed in light of the findings of fact. Cf. State v. Carey, 122 Idaho 382, 384, 834 P.2d 899, 901 (Ct.App.1992).

Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967) is the primary authority cited by the trial court in ordering the suppression. In Garrity, the Supreme Court held that the constitutional protection of an individual against coerced statements prohibits use in subsequent criminal proceedings of statements of a police officer obtained under threat of removal from office. Id. at 500, 87 S.Ct. at 620, 17 L.Ed.2d at 567. In Garrity, a New Jersey statute provided that if a public employee refused to testify upon matters relating to the employment in any criminal proceeding on the ground that the employee’s answer might tend to incriminate the employee, the employee would forfeit the employment.

In this case, there is no statute similar to the New Jersey statute in Garrity. Also, there is no evidence of any policy, rule, or regulation concerning the effect on the employment of a state police officer who refuses to cooperate in an investigation concerning alleged criminal activity. The trial court found that “under common police understanding, the exercise by a suspect of [the suspect’s] right to remain silent is not considered ‘cooperation.’ ” The trial court had no evidence to support this finding.

The only evidence to support the trial court’s finding that Connor had an objectively reasonable belief that his use of the Fifth Amendment in response to questions would result in his losing his job is Con-nor’s own testimony. Connor’s testimony that the district commander said he was required to meet with the investigator and that it was Connor’s understanding that if he did not submit to the investigation he would be terminated from his employment do not support a finding that Connor had an objectively reasonable belief that he would be fired. This testimony supported only the trial court’s finding that Connor had a subjective belief.

In the absence of an objectively reasonable belief by Connor that he would be fired if he did not answer the questions posed in the investigation, we conclude that Connor’s statements were not coerced. The trial court should not have suppressed the statements on this ground.

III.

ON REMAND, THE TRIAL COURT SHOULD ADDRESS THE MIRANDA ISSUE.

Connor requests that if we overturn the trial court’s suppression of his statements because of lack of coercion, we should remand the case for further findings as to whether Connor was in custody and whether he was entitled to be read his Miranda rights prior to interrogation. We agree.

The original basis for Connor’s motion to suppress was that he had been interrogated while in custody without a Miranda warning. In its decision on the motion, the trial court did not state whether or not Connor was in custody at the time of the interrogation. Instead, the trial court stated:

Even though [Connor] was not Miran-dized, it is clear that [Connor], a state trooper, was familiar with his Miranda rights.

In Miranda, the Supreme Court negated this basis for disposing of Connor’s challenge to the admissibility of his statements:

The Fifth Amendment privilege is so fundamental to our system of constitutional rule and the expedient of giving an adequate warning as to the availability of the privilege so simple, we will not pause to inquire in individual cases whether the defendant was aware of his rights without a warning being given. Assessments of the knowledge the defendant possessed, based on information as to his age, education, intelligence, or pri- or contact with authorities, can never be more than speculation; a warning is a clearcut fact. More important, whatever the background of the person interrogated, a warning at the time of the interrogation is indispensable to overcome its pressures and to insure that the individual knows he is free to exercise the privilege at that point in time.

Miranda v. Arizona, 384 U.S. 436, 468-469, 86 S.Ct. 1602, 1625, 16 L.Ed.2d 694, 720 (1966) (footnote omitted).

On remand, the trial court must address whether Connor was in custody at the time he made the statements he has moved to suppress. If Connor was in custody, the trial eourt must suppress the statements, because Connor was not advised of his Miranda rights.

IV.

CONCLUSION.

We vacate the trial court’s suppression order and remand the case to the trial court for further proceedings. We award no costs on appeal.

McDEVITT, C.J. and TROUT, J„ concur.