“No Contact/interference” Order Violates Garrity Rule

Robert Aiken, a probation officer for the State of Georgia, was under investigation by the State for potential sexual misconduct with a probationer. Prior to being interviewed, Aiken was required to sign a document entitled “Notice of Interfering With On-Going Internal Investigation.” The document provided:

“You are directed not to discuss your interview or any matter related to the subject of the interview with anyone other than a member of the Investigative Staff or the Legal Office of the Department of Corrections, unless you have received written permission from the Investigative Staff, until the investigation is completed. If you interfere with an on-going investigation in any manner, you will be subject to disciplinary action, including dismissal from employment. Discussing this investigation, including matters covered in your interview (questions, answers or subject matter), with anyone other than a member of the Investigative Staff or Legal Office of the Department of Corrections is one method of interfering with an on-going investigation.”

Aiken was neither given Miranda nor Garrity warnings prior to the interview. During the interview, Aiken initially denied that he had sexual conduct with a probationer. Later, he admitted he had engaged in sexual misconduct, and reduced his statement to writing.

Aiken was indicted on two counts of sexual assault against a person in custody. Aiken filed a motion to suppress his oral and written statements. When a trial court granted the motion, the State appealed.

The Georgia Court of Appeals began its opinion by describing the rule in Garrity v. New Jersey, 385 U.S. 493 (1967). The Court noted that under Garrity, statements obtained under threat of removal from public employment are compelled and thus may not be used in subsequent criminal proceedings.

The Court also described the now-familiar two-part test used by the courts in deciding whether an employee is “compelled” to give a statement: (1) Whether the employee subjectively believes that he must answer questions or lose his job; and (2) whether the subjective belief is objectively reasonable.

The Court found that there was no question but that Aiken subjectively believed that he would be fired or disciplined in some manner if he did not cooperate with the investigation: “According to Aiken, he did not believe that he had any option other than to talk to the investigator, and to answer her questions.”

The Court also concluded that Aiken’s subjective belief that he was required to answer the questions was objectively reasonable: “We agree that the circumstances surrounding this interview, including requiring Aiken to sign the [no contact] order immediately prior to the interview, constituted sufficient action by the Department to provide an objectively reasonable basis for Aiken’s belief that his failure to cooperate could result in termination from employment.”

The Court upheld the trial court’s decision suppressing Aiken’s written and oral statements, and remanded the matter for trial.

State v. Aiken, 2006 WL 2535046 (Ga.App. 2006).

This article appears in the October 2006 issue