Michigan’s Enhanced Garrity Statute Results In Suppression Of Statement

Craig Ziecina, a trooper with the Michigan State Police (MSP), was a member of the Home Security Team. On December 23 and 24, 2014, the Team executed two search warrants in Leoni Township, Michigan. Shortly afterwards, the MSP began investigating whether the theft of personal property had occurred during the exercise of the warrants.

During the investigation related to the theft, Ziecina received the following notice: “This correspondence is to inform you that you will be interviewed, as a principal, concerning allegations of criminal misconduct. This investigation could result in criminal and/or disciplinary action against you. Any self-incriminating statements you may make pertaining to these allegations may be used against you in both criminal and/or administrative proceedings.”

Ziecina provided a written statement in lieu of attending an in-person interview with the investigating officer. Ziecina later asked to meet with the investigating officer. In this interview, he made statements that contradicted his previous written statement. As a result, Ziecina was criminally charged with lying to a peace officer during a criminal investigation and willful neglect of duty.

Ziecina moved to suppress any written or oral statements he made to the investigating officer, arguing that those statements were involuntary under Michigan’s Disclosures by Law Enforcement Officers Act. When a trial court granted Ziecina’s motion, the matter wound up in the Michigan Court of Appeals. The Court upheld the order suppressing Ziecina’s statements.

The Court’s decision turned on a provision in the Act that “an involuntary statement made by a law enforcement officer, and any information derived from that involuntary statement, shall not be used against the law enforcement officer in a criminal proceeding.” The Act defines an “involuntary statement” as “information provided by a law enforcement officer, if compelled under threat of dismissal from employment or any other employment sanction, by the law enforcement agency that employs the law enforcement officer.”

The Court noted that the Michigan Supreme Court had held that the Act “protected both true and false statements, and that to hold otherwise would defeat the Legislature’s stated intent to preclude the use of ‘any information.’” The Court observed that “Ziecina was not asked to participate in an interview; he was told, ‘you will be interviewed.’ Even viewed objectively – looking past Ziecina’s subjective perception of a threat to his employment – this notice, from one’s employer, would cause a reasonable person to believe that he or she must actively participate in an interview in order to avoid adverse employment consequences.

“This is bolstered by the email from Ziecina’s labor attorney, who stated that he was recommending that Ziecina make a written statement. While a threat was not explicitly spelled out, it is implied from the language of the notice, and nothing in the Act requires that the ‘threat of an employment sanction’ be explicit.

“The plain language of the Act protects all statements given by officers under compulsion. This choice may seem odd, or reflective of questionable or even bad public policy, but it was the Legislature’s choice to make. We are not empowered to displace what the law actually provides with a judicial preference for what we believe it should provide.

“The circumstances indicate that Ziecina’s January 7, 2015, written statement was given by Ziecina under compulsion. That Ziecina later attended an interview in which he was told that he did not have to answer questions is irrelevant, because the later, oral statement was a modification of the January 7 compelled statement; the trial court correctly held that it, too, must be suppressed.”

People v. Ziecina, 2017 WL 4798692 (Mich. App. 2017).

Note: The Michigan statute provides protections stronger than those under the Garrity Rule. A number of courts have held that under Garrity, an employee can be prosecuted for perjury occurring during the course of a compelled statement, and that Garrity does not bar the introduction into evidence in the perjury trial of the false statement.