[Cite as State v. Schimmel,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY

STATE OF OHIO : : Plaintiff-Appellant : Appellate Case No. 2017-CA-23 : v. : Trial Court Case No. 2016-CR-557 : CURTIS E. SCHIMMEL : (Criminal Appeal from : Common Pleas Court) Defendant-Appellee : :

...........

OPINION

Rendered on the 22nd day of September, 2017.

...........

ANDREW R. PICEK, Atty. Reg. No. 0082121, ANDREW P. PICKERING, Atty. Reg. No. 0068770, Assistant Prosecuting Attorneys, Clark County Prosecutor’s Office, 50 East Columbia Street, Fourth Floor, Springfield, Ohio 45502 Attorneys for Plaintiff-Appellant

ERIC E. WILLISON, Atty. Reg. No. 0066795, BRADLEY P. KOFFEL, Atty. Reg. No. 0062184, 1801 Watermark Drive, Suite 350, Columbus, Ohio 43215 Attorneys for Defendant-Appellee

.............

WELBAUM, J. -2-

{¶ 1} In this case, Plaintiff-Appellant, the State of Ohio, appeals from a trial court

decision granting a motion to suppress filed by Defendant-Appellee, Curtis Schimmel. In

support of its appeal, the State contends that the trial court erred in granting Schimmel’s

motion to suppress, because Schimmel’s loss of possible government employment was

not a penalty that constituted compulsion under the Fifth Amendment to the United States

Constitution, but was a denied possible benefit. As a result, statements that Schimmel

made during a pre-employment polygraph examination and interview were not compelled

within the meaning of the Fifth Amendment, and the statements and fruits of the

investigation that resulted should not have been suppressed.

{¶ 2} We conclude that the trial court erred in granting the suppression motion.

Schimmel failed to assert his Fifth Amendment privilege against incrimination, and he did

not fall within any established exceptions to assertion of the privilege. The interview and

examination were part of a routine and accepted law enforcement application process,

and Schimmel was not under any compulsion to continue. To the contrary, Schimmel

could have ended the process at any time. Accordingly, the judgment of the trial court

will be reversed, and this cause will be remanded for further proceedings.

I. Facts and Course of Proceedings

{¶ 3} The facts in this case are undisputed. On November 14, 2016, an

indictment was filed against Curtis Schimmel, based on three counts of illegal use of a

minor in nudity-oriented material or performance, in violation of R.C. 2907.323(A)(3).

These were fifth-degree felonies, and the indictment alleged that Schimmel had viewed -3-

material that showed a child in a state of nudity on or about August 18, 2016.

{¶ 4} In January 2017, Schimmel filed a motion to suppress, based on the failure

of the Clark County Sheriff to immunize him concerning answers he gave to questions

during a polygraph examination that was administered as part of the employment process

with the Sheriff’s Department. At a pre-trial hearing held in February 2017, the parties

submitted two exhibits that have not been included in the record. No other factual

evidence was submitted; however, the absence of the exhibits does not affect the appeal,

because the parties agree that the facts are undisputed.

{¶ 5} As was noted, Schimmel sought employment with the Clark County Sheriff’s

Department, and as part of the employment process, was required to undergo a

polygraph examination. Before the examination was administered, and as a condition of

continuing his application for employment, Schimmel was required to sign a consent form

for the examination. The form provided, in pertinent part, as follows:

I, Curtis Schimmel voluntarily agree to take a polygraph examination

for the mutual benefit of myself and the Clark County Sheriff’s Office.

I understand that I am being requested to undergo the polygraph

examination regarding information I have provided on my polygraph

questionnaire, application for employment, and interviews relating to my

suitability for employment. I understand the results of the examination, or

my failure to cooperate during the test will be considered along with other

factors indicating my suitability for employment.

I fully realize that I do not have to take this examination, and that

even in the proceedings, I can stop the examination at any time, simply by -4-

telling the polygraph examiner to stop. I also understand that if I choose to

stop the examination, I forfeit further consideration of employment with the

County of Clark. I also give my consent to the use [sic] audio and/or video

electronic recording equipment during this examination.

***

I hereby give the Clark County Sheriff’s Office full and complete

permission to disclose the findings and results of this comprehensive

background investigation to those persons or parties having an interest in

this examination, to include my current employer, or an appropriate law

enforcement agency for the purpose of a criminal investigation, if any

criminal, immoral or other concerning or disqualifying issues are

discovered. I understand that this disclosure may result in adverse

consequences for me in my current job, including but not limited to

termination from employment, negative reference for future employment,

and possible criminal prosecution. . . .

***

I fully understand this waiver, and have been offered the opportunity

to withdraw my application for employment to the Clark County Sheriff’s

Office. I know [sic] request that Ohio Polygraph Services, LLC Examiner

proceed with the actual interview and polygraph examination. [signatures]

Joint Ex. 1, as referenced in the State’s Brief, p. 2.

{¶ 6} After the form was signed, the polygraph examination was administered.

During the pre-test interview, sexual conduct was an area that was covered. At that time, -5-

Schimmel disclosed that he had looked up pornography involving girls as young as 16

years of age as recently as one month before the examination. Joint Ex. 2, as referenced

in the State’s Brief, at p. 3. During the test, a “significant response” occurred when

Schimmel was asked if he were withholding information about his sexual history. Id. at

p. 4. After being further questioned, Schimmel stated that he liked “young girls,” and said

he had viewed pornography involving girls as young as ten years of age as recently as

the past week; he also said he had done so previously on numerous occasions. Id.

After further testing, Schimmel admitted that he had viewed images of girls as young as

eight years old, and had maintained archives.

{¶ 7} Based on this information, the police obtained a search warrant and found

28 images of nude minors on Schimmel’s electronic devices. Schimmel was then

charged for the three counts of illegal use of a minor in nudity-oriented material or

performance.

{¶ 8} After considering the evidence and arguments of the parties, the trial court

granted the motion to suppress on February 28, 2017. In doing so, the court relied on

Lefkowitz v. Turley,

,

,

(1973).

{¶ 9} Turley involved architects who had refused to sign waivers of immunity when

summoned to testify before a grand jury about charges of conspiracy, bribery, and

larceny.

. After the district attorney notified various contracting authorities

of their conduct and potential disqualification under statutes, the architects sued,

asserting that their existing and future contracts had been threatened, and that the

statutory provisions violated the right against self-incrimination.

. The

Supreme Court agreed, and held that the statutes were unconstitutional. -6-

{¶ 10} In the case before us, the trial court concluded that the threat of forfeiting

the possibility of future employment with Clark County was no less a substantial economic

sanction than what was involved in Turley, and that Schimmel’s Fifth Amendment right

against self-incrimination had been violated. The court, therefore, suppressed the

statements Schimmel had made, as well as evidence obtained from the search of his

residence. The State now appeals the court’s decision as of right, pursuant to R.C.

2945.67.

II. Did the Court Err in Granting the Motion to Suppress?

{¶ 11} On appeal, the State presents the following sole assignment of error:

The Trial Court Erred in Granting the Defendant-Appellee’s Motion

to Suppress Statements Made During a Pre-Employment Polygraph

Examination and the Fruits Thereof.

{¶ 12} Under this assignment of error, the State acknowledges that for current

government employees, eliciting statements though threat of loss of livelihood imposes

an unconstitutional burden. The State argues, however, that Schimmel’s position is

more akin to that of the defendant in Garner v. United States,

,

,

(1976). Garner involved the State’s use of information that the

defendant had reported on IRS forms. The information was used as evidence in the

defendant’s subsequent criminal prosecution for “conspiracy involving the use of

interstate transportation and communication facilities to ‘fix’ sporting contests, to transmit

bets and information assisting in the placing of bets, and to distribute the resultant illegal

proceeds.”

. -7-

{¶ 13} The court held in Garner that if witnesses wish to obtain Fifth Amendment

protection, they must assert it; otherwise, they are not “compelled” within the meaning of

the amendment.

. Garner noted some exceptions, including custodial

interrogations, failure to file tax returns specifically required of gamblers, and questioning

of government employees under threat of termination.

. According to the

State, Schimmel’s situation is more like that of the defendant in Garner because if

Schimmel refused to answer the examiner’s questions or had refused to submit to the

examination, he would not have been subject to criminal prosecution. Instead, his only

negative consequence would have been loss of being considered for a “possible” position

with Clark County.

{¶ 14} In response, Schimmel argues that the State has incorrectly chosen among

the facts in Turley. Schimmel argues that the district court decision in Turley indicates

that the only harm Turley suffered was to be removed from a list of authorized bidders for

public work, and that no mention was made of lost or withdrawn contracts. Schimmel

also relies on a decision from the Third Circuit Court of Appeals, which indicates that

items such as loss of future contracting privileges with a state are “penalties” that cannot

be imposed on exercise of the Fifth Amendment right. Appellee’s Brief, pp. 8-9, citing

United States v. Frierson,

(3d Cir. 1991).

{¶ 15} “Appellate review of a suppression ruling involves a mixed question of law

and fact.” (Citation omitted.) State v. Graham,

,

,

. “If competent, credible evidence supports the trial court's

findings of fact, then the appellate court must accept those findings as true.”

“ ‘[T]he

appellate court must then independently determine, without deference to the conclusion -8-

of the trial court, whether the facts satisfy the applicable legal standard.’ ” (Citations

omitted.)

Since the facts here are undisputed, our task is to independently decide if

the facts satisfy the appropriate legal standards for suppression.

{¶ 16} “The Fifth Amendment provides that no person ‘shall be compelled in any

criminal case to be a witness against himself.’ The Amendment not only protects the

individual against being involuntarily called as a witness against himself in a criminal

prosecution but also privileges him not to answer official questions put to him in any other

proceeding, civil or criminal, formal or informal, where the answers might incriminate him

in future criminal proceedings.” Turley,

,

,

,

citing McCarthy v. Arndstein,

,

,

(1924). Thus,

“a witness protected by the privilege may rightfully refuse to answer unless and until he

is protected at least against the use of his compelled answers and evidence derived

therefrom in any subsequent criminal case in which he is a defendant. * * * Absent such

protection, if he is nevertheless compelled to answer, his answers are inadmissible

against him in a later criminal prosecution.” (Citations omitted.)

.

{¶ 17} However, “the Fifth Amendment privilege generally is not self-executing * *

*.” Minnesota v. Murphy,

,

,

(1984).

Instead, if a witness “chooses to answer, his choice is considered to be voluntary since

he was free to claim the privilege and would suffer no penalty as the result of his decision

to do so.”

. There are well-known exceptions to the requirement of asserting

the privilege: (1) “custodial interrogation”; (2) situations where the assertion is penalized

to an extent that a “ ‘free choice to remain silent’ ” is foreclosed; and (3) situations where

parties fail to file tax returns rather than identifying themselves as gamblers and asserting -9-

the Fifth Amendment privilege. (Citations omitted.)

, and 439. The

case before us involves Schimmel’s claim to the “penalty” exception.

{¶ 18} In Turley, the court extended Fifth Amendment protections to independent

contractors, noting its recent holding that State employees “may be compelled to respond

to questions about the performance of their duties but only if their answers cannot be

used against them in subsequent criminal prosecutions.”

, citing Garrity v.

New Jersey,

,

,

(1967), Gardner v. Broderick,

,

,

(1968), and Uniformed Sanitation Men

Assn. v. Commr. of Sanitation of City of New York,

,

,

(1968).

{¶ 19} Garrity involved police officers who were asked questions in an inquiry

about the fixing of traffic tickets. They answered after being given “warnings that if they

did not answer they would be removed from office and that anything they said might be

used against them in any criminal proceeding. No immunity of any kind was offered or

available under state law.”

. Subsequently, their answers were used in

their prosecutions for conspiracy.

The court held in Garrity that “ ‘the protection of

the individual under the Fourteenth Amendment against coerced statements prohibits use

in subsequent criminal proceedings of statements obtained under threat of removal from

office, and that it extends to all, whether they are policemen or other members of our body

politic.’ ”

quoting

. In addition, Garrity held that “in the context of

threats of removal from office the act of responding to interrogation was not voluntary and

was not an effective waiver of the privilege against self-incrimination * * *.”

{¶ 20} Similar results occurred in Gardner and Sanitation Men, which involved, -10-

respectively, a police officer who was discharged after he refused to waive his right

against self-incrimination when summoned to testify before a grand jury, and public

employees who were officially interrogated and told their refusal to answer and sign

immunity waivers would lead to dismissal. Turley,

,

,

.

{¶ 21} In analyzing the issues, the United States Supreme Court stressed the

necessity of reconciling established policies behind the self-incrimination privilege and

the governmental need “to obtain information ‘to assure the effective functioning of

government’ * * *.” (Citations omitted.)

The court then concluded that Garrity,

Gardner, and Sanitation Men controlled.

. In this regard, the court stressed

that:

The State sought to interrogate appellees about their transactions with the

State and to require them to furnish possibly incriminating testimony by

demanding that they waive their immunity and by disqualifying them as

public contractors when they refused. It seems to us that the State

intended to accomplish what Garrity specifically prohibited – to compel

testimony that had not been immunized. The waiver sought by the State,

under threat of loss of contracts, would have been no less compelled than

a direct request for the testimony without resort to the waiver device. A

waiver secured under threat of substantial economic sanction cannot be

termed voluntary.

.

{¶ 22} The court also rejected the State’s argument that different rules should -11-

apply to public contractors because they might not entirely rely on State transactions for

their livelihood.

. In response, the court agreed with “the District Court that ‘the

plaintiffs' disqualification from public contracting for five years as a penalty for asserting

a constitutional privilege is violative of their Fifth Amendment rights.’ ”

quoting Turley

v. Lefkowitz,

(W.D.N.Y. 1972).

{¶ 23} Schimmel is partly correct when he asserts that the architects involved in

Turley were not specifically challenging their dismissal from current contracts. The focus

of the case appears to have been primarily on disqualification from future contracts.

Specifically, the district court’s opinion states that “[t]he plaintiffs in this action are licensed

architects who have in the past been employed by various municipalities and state and

county agencies in New York.” (Emphasis added.) Turley,

.

{¶ 24} The architects were called to testify before a grand jury, and upon their

refusal to sign a waiver of immunity against subsequent prosecution, the district attorney

sent a letter to various governmental parties and the architects’ firms, notifying them that

such a refusal required disqualification for five years of the architects and any firm of

which they were a member “from contracting with any municipality or public authority, and

any existing contracts may be cancelled by the municipality or public authority without

incurring penalty.”

.

{¶ 25} After citing various authority, including Gardner and Garrity, the district court

held that “[q]uite clearly, then, the plaintiffs' disqualification from public contracting for five

years as a penalty for asserting a constitutional privilege is violative of their Fifth

Amendment rights.”

. Thus, the case indicates that the major concern was

over the five-year disqualification from future contracting, not dismissal or just dismissal -12-

from a current job. However, the court did also state that the plaintiffs had asked for a

judgment declaring the statutes in question unconstitutional, based on their claim that “the

defendants now threaten to nullify the plaintiffs’ employment opportunities and contractual

rights.”

. There can be no “contractual” right absent an existing contract.

{¶ 26} Furthermore, on appeal, the United States Supreme Court stated that

“[a]ppellees thereupon brought this action alleging that their existing contracts and future

contracting privileges were threatened and asserted that the pertinent statutory provisions

were violative of the constitutional privilege against compelled self-incrimination.”

(Emphasis added.). Turley,

,

,

. In view

of the statements to this effect in both the trial court and the United States Supreme Court,

we cannot entirely agree with Schimmel’s position.

{¶ 27} In Spevack v. Klein,

,

,

(1967), the

Supreme Court also applied the Fifth Amendment privilege to an attorney who refused to

produce financial records during a judicial inquiry into professional conduct; the attorney

was then disbarred based on his refusal to produce the records.

. The

court noted that in the context of the privilege against self-incrimination, “ ‘penalty’ is not

restricted to fine or imprisonment. It means, as we said in Griffin v. State of California,

,

,

[1965], the imposition of any sanction which

makes assertion of the Fifth Amendment privilege ‘costly.’ ” Id. at 628, quoting Griffin at

614.

{¶ 28} Stressing that “constitutional provisions for the security of person and

property should be liberally construed,” the court noted that “ ‘[t]he threat of disbarment

and the loss of professional standing, professional reputation, and of livelihood are -13-

powerful forms of compulsion to make a lawyer relinquish the privilege. That threat is

indeed as powerful an instrument of compulsion as ‘the use of legal process to force from

the lips of the accused individual the evidence necessary to convict him * * *.’ ” Id.,

quoting United States v. White,

,

,

(1944).

{¶ 29} Ohio has applied the Garrity principles to various situations, including

statements elicited during police internal affairs investigations and during investigations

involving other public employees. See, e.g., Jones v. Franklin Cty. Sheriff,

,

(1990) (internal affairs); State v. Jackson,

, 2010-

Ohio-621,

(internal affairs); and Graham,

, 2013-Ohio-

2114,

(employees of division of state agency of natural resources).

{¶ 30} The Supreme Court of Ohio has not ruled on the specific type of situation

involved in the case before us. Recently, in Graham, the court considered whether the

trial court had erred in granting motions to suppress filed by five upper-level employees

of the Ohio Department of Natural Resources (“ODNR”), Division of Wildlife (“DOW”).

After an investigation that the Ohio Inspector General (“OIG”) had conducted, criminal

charges were brought against these employees for obstruction of justice and complicity

to commit obstruction of justice, based on statements the employees made during the

OIG investigation.

. The employees signed an oath prior to questioning,

indicating they were subject to criminal sanctions for providing false information. They

were not advised of any right to counsel. Id. at ¶ 4.

{¶ 31} Essentially, the OIG was investigating an allegation that the DOW failed to

properly scrutinize misconduct of a Brown County DOW employee who had used his

home address to obtain a cheaper hunting license for a non-resident South Carolina -14-

wildlife officer. Id. at ¶ 3. The trial court suppressed the employees’ statements, finding

that they had been compelled and were inadmissible under Garrity. Id. at ¶ 14, citing

Garrity,

,

,

. The court of appeals then

reversed the trial court, based on its conclusion that the employees had not been

expressly threatened with discipline. Id. at ¶ 15. In this regard, an OIG deputy inspector

testified that he had not threatened the employees with termination or any type of job-

related discipline when contacting them for interviews. Id. at ¶ 11.

{¶ 32} An ODNR labor relations administrator testified that the employees had

known they could be disciplined for refusing to cooperate, with sanctions ranging from

oral reprimand to termination. Id. at ¶ 12. He also testified that the employees had each

received an ODNR “ ‘Notice of Investigatory Review,’ ” which had informed them that

refusing to answer questions “ ‘may lead to disciplinary action up to and including

termination.’ ” Id. at ¶ 13. The court of appeals refused to consider this latter testimony

and evidence, because the notice was undated, and the administrator’s testimony about

when the defendants received the notice had been stricken. Id. at ¶ 15.

{¶ 33} On subsequent appeal, the Supreme Court of Ohio reversed the court of

appeals and affirmed the grant of the suppression motions. The court commented that

“a person need not assert the privilege in cases in which the state compels the person to

give up the ‘privilege by threatening to impose economic or other sanctions “capable of

forcing the self-incrimination which the Amendment forbids.” ’ ” Graham,

,

,

, quoting Murphy,

,

,

, which in turn quotes Lefkowitz v. Cunningham,

,

,

(1977). -15-

{¶ 34} Furthermore, the Supreme Court of Ohio stated that “[c]ompulsion within

the meaning of Garrity is obvious in cases in which, as in Garrity, the state has expressly

confronted the public employee with the inescapable choice of either making an

incriminatory statement or being fired.” Id. at ¶ 23. For less obvious situations involving

lack of an express threat, the court adopted a totality of circumstances approach, and

said that “for a statement to be suppressed under Garrity, the employee claiming coercion

must have believed that his or her statement was compelled on threat of job loss and this

belief must have been objectively reasonable. In examining whether an employee's

belief was objectively reasonable under the circumstances, evidence of an express threat

of termination or a statute, rule, or policy demanding termination will almost always be

sufficient to show coercion.” Id. at ¶ 24, finding persuasive the approach in United States

v. Friedrick,

(D.C.Cir. 1988). (Other citation omitted.)

{¶ 35} After considering the circumstances, the Supreme Court of Ohio held that

the trial court had correctly granted the motions to suppress. The court concluded that

although the labor administrator “could only speculate as to when appellants received the

ODNR notice, he never wavered in his testimony that appellants had in fact received the

notice.” Id. at ¶ 26. In addition, the language in the notice implied that it was to be

provided to employees before investigatory interviews. Id. Thus, the court concluded

that the threat in the notice sufficiently proved that the employees subjectively believed

they could be fired for refusing to cooperate and that their belief was objectively

reasonable. Id. at ¶ 27.

{¶ 36} Notably, the court reached its decision even though the OIG lacked “the

ability to arrest or directly discipline employees of other state agencies.” Graham, 136 -16-

Ohio St.3d 125,

,

. The court observed that the

OIG is statutorily required to report omissions or wrongful acts to a person’s public or

private employer, for “possible disciplinary action.”

quoting R.C. 121.42(C). This,

the court found, was similar to the state attorney general’s role in Garrity.

{¶ 37} The court also commented that, other than the threat in the ODNR notice,

there was scant evidence indicating that the defendants “subjectively believed that they

were compelled to cooperate with the OIG investigation.” Id. at ¶ 29. In addition, R.C.

121.45, which imposed a general duty to comply with OIG investigations, did not threaten

any kind of discipline. Id. Nonetheless, the court found the “express threat in the ODNR

notice sufficiently coercive so as to trigger the protections of Garrity.” Id.

{¶ 38} Although Graham does not answer the question of whether Schimmel’s

situation involved a “penalty” as he suggests, it does indicate that the Supreme Court of

Ohio has not adopted a narrow view of the privilege. Specifically, the employees in

Graham were subject to various discipline, up to, but not necessarily requiring, removal.

And, as the court said, there was no express threat; instead, the court evaluated the

situation under the approach it adopted, using subjective and objective criteria. In

contrast, the officers in Garrity were explicitly told that refusal to answer would make them

“subject to removal from office.” Garrity,

,

,

. Similarly, Schimmel was expressly told that if he stopped the polygraph

examination, he would forfeit all right to future employment – not just with the Sheriff’s

Department, but also with Clark County. Whether Schimmel occupied the same position

as the employees in these other cases is a different issue, however.

{¶ 39} As was noted, Schimmel relies on Frierson,

, in which the Third -17-

Circuit Court of Appeals commented that Turley had “declared unconstitutional a New

York statute that required that public contractors either waive immunity and testify

concerning their contracts or lose their current contracts and future contracting privileges.”

, citing Turley,

,

,

. After making

this observation, the court of appeals appeared to disagree with the United States

Supreme Court’s holding “that both of these sanctions were ‘penalties.’ ”

{¶ 40} In this regard, the Third Circuit Court of Appeals opined that “loss of current

contracts would seem to be a ‘penalty’ and loss of future contracting privileges a ‘denied

benefit’ within the meanings generally ascribed to those terms.”

However, the court

of appeals then went on to note that the Supreme Court’s decision in “Cunningham,

,

, also did not distinguish between termination of

present office and disqualification from holding any office for five years; both were

penalties that could not be imposed on the exercise of the privilege.”

Accordingly,

the court accepted the concept that both current and future losses can be penalties.

{¶ 41} In contrast to Garrity and other “penalty” cases, Frierson did not involve

employment. Instead, it addressed “certain aspects of the interplay between the Fifth

Amendment privilege against self-incrimination and § 3E1.1 of the [Federal Sentencing]

Guidelines, which authorizes a two-level sentence reduction for acceptance of

responsibility.”

. Ultimately, the court of appeals concluded in Frierson

that “an increase in sentence or a denied reduction in sentence is a penalty in the context

of Fifth Amendment jurisprudence.”

. The court observed that “a number

of courts, including the Supreme Court and this court, have recognized that denial of

leniency is a penalty which cannot be imposed for the defendant's assertion of his or her -18-

Fifth Amendment privilege.”

.

{¶ 42} Despite this holding, Frierson also concluded that the situation before it did

not fall within the exception to assertion of the privilege that “arises when the government

threatens to penalize the assertion of the privilege, and thereby ‘compels’ incriminating

testimony.”

quoting Murphy,

,

,

,

and citing Garrity,

,

,

. The court found

its own situation more analogous to Murphy, which held a probationer’s statement to his

probation officer “voluntary and admissible” because “the threatened penalty must be

specifically addressed to the exercise of the privilege for the defendant to claim ex post

that he had been compelled to speak; it was not enough that the defendant may have

reasonably believed his probation would be revoked for failing to answer his probation

officer's questions.” Id. at 661, citing

.

{¶ 43} Ironically, the situation in Frierson seems similar to what was involved in the

Supreme Court of Ohio’s decision in Graham – a situation where an express threat does

not exist, but the party claiming the benefit of an exception to assertion of the privilege

argues that he or she “reasonably believed” that the penalty would occur if the privilege

were asserted. In this regard, the court of appeals stated in Frierson that:

Importantly, the Court [in Murphy] noted that the case would have

come out the other way if either of the following had occurred. If Murphy

had asserted his privilege to the probation officer and the state had revoked

Murphy's probation because of that assertion, that would have been an

unconstitutional penalty imposed on the exercise of the privilege.

,

. Similarly, if Murphy had been told that he could -19-

not refuse to answer on Fifth Amendment grounds - i.e., that his probation

would be revoked if he claimed the privilege - and Murphy then talked to the

probation officer, the statements would be considered “compelled” and

could not be used against Murphy.

,

. Because

neither situation occurred in Murphy's case, however, the statements were

voluntary and admissible. Minnesota had not taken the “extra,

impermissible step” of threatening a penalty on the assertion of the

privilege.

,

.

Justice Marshall in dissent in Murphy argued that the “reasonable

layman” would understand the requirement that he be truthful “in all matters”

or lose probation to include a threat that probation would be revoked if he

refused to answer on Fifth Amendment grounds.

,

(Marshall, J., dissenting). The majority disagreed. For statements

to be considered compelled, the Court required that the threat of

punishment be conditioned on the assertion of the privilege; a general

requirement of truthfulness or disclosure could not be used after the fact to

claim that incriminating statements had been compelled.

Frierson,

, discussing Murphy, 465 U.S.at 435-438 and 447,

,

.

{¶ 44} Based on Murphy, the court of appeals held in Frierson that “requiring a

defendant to accept responsibility in order to obtain a sentence reduction is not a threat

to impose punishment for an assertion of the privilege.” Id. at 662. The court stressed

that Frierson had made a voluntary statement to the FBI before he was indicted, and did -20-

not elect to assert his Fifth Amendment privilege. Instead, he told the FBI that he did not

have a gun during the bank robbery for which he was convicted. Id. The government

also made no threats to Frierson.

{¶ 45} In addition, the court noted that during Frierson’s presentence interview with

the probation officer, “[t]he government made no threat directed against assertion of the

privilege.” Id. at 661-662. “Nevertheless, Frierson once again failed to assert his

privilege.” Id. at 662. Finally, before the presentence interview, the government had

given Frierson a copy of a case from a Delaware district court.

{¶ 46} In that case, which was nearly identical to Frierson’s, another court had

refused to allow a reduction based on the defendant’s contention that responsibility had

been accepted. Id. The case did not concern a threat of imposing a penalty if the

privilege were asserted; it simply “stated more explicitly what the Guidelines themselves

require: that a defendant must accept responsibility for relevant conduct beyond the

offense of conviction to obtain the reduction.” Id. Thus, the court of appeals concluded

that “[a]s with the Guidelines themselves, this [providing a copy of the decision] was not

a threat sufficient under Murphy to hold any subsequent statement ‘compelled.’ ” Id.

{¶ 47} Despite the fact that the defendant in Frierson failed to prevail, the court,

nonetheless, adopted the position that denying a reduction in sentence is a “penalty” to

which the Fifth Amendment applies. However, not all federal circuits agree with Frierson.

Prior to oral argument, the State filed a notice of additional authorities that it intended to

assert during argument. Of relevance is a decision of the Sixth Circuit Court of Appeals

in United States v. Clemons,

(6th Cir. 1993).

{¶ 48} In Clemons, the defendant argued “that the district court violated his Fifth -21-

Amendment privilege not to incriminate himself when it refused to award him the two-level

reduction for acceptance of responsibility because he had not admitted the drug dealing

he engaged in before the onset date of the indictment as described in the testimony of

[his drug courier].”

. The guidelines in effect at the time allowed courts

to reduce a defendant’s base offense level by two levels if a defendant showed

acceptance of personal responsibility for his conduct.

{¶ 49} The Sixth Circuit Court of Appeals noted that there was a “deep division”

among circuit courts about whether conditioning the two-level reduction on acceptance of

responsibility would violate a defendant’s Fifth Amendment rights.

.

Regarding this matter, the court stated that cases finding possible violations “generally

follow a line of Supreme Court cases holding that the government ‘may not impose

substantial penalties because [an individual] elects to exercise his Fifth Amendment right

not to give incriminating testimony against himself.’ ”

, quoting Cunningham,

,

,

. Cunningham involved an attorney’s

refusal to sign an immunity waiver, and the refusal “automatically divested him of all his

party offices and activated the five-year ban on holding any public or party office.”

. When discussing the penalty cases, the Sixth Circuit Court of

Appeals also mentioned Garrity, Murphy, Turley, and Gardner.

.

{¶ 50} In Clemons, the Sixth Circuit Court of Appeals stressed that several circuits

had avoided “the impact of the Supreme Court[’]s so-called ‘penalty cases’ by

distinguishing between a ‘denied benefit’ and a ‘penalty.’ These circuits hold that denial

of the two-level reduction does not constitute a penalty and thus does not implicate the

Fifth Amendment.” (Citations omitted.) Clemons,

. -22-

{¶ 51} Clemons did not discuss the meaning of the term “denied benefit,” but did

adopt the reasoning of the Fourth Circuit Court of Appeals in United States v. Frazier,

(4th Cir. 1992).

. “Denied benefit” appears to refer to the

statement in Frazier concerning the government’s position that “reduction [of sentence] is

merely a benefit, or an act of leniency, the denial of which because the defendant refuses

to provide potentially incriminatory information does not penalize a defendant's exercise

of his Fifth Amendment rights.” (Footnote omitted.) Id. at 1081. In the omitted

footnote, the Fourth Circuit Court of Appeals commented that:

The government implicitly embraces the commonly held position that

the conditioning of the receipt of a benefit upon the relinquishment of a

constitutional right can never constitute compulsion within the meaning of

the Fifth Amendment. In several cases, however, the Supreme Court has

held that the conditioning of a benefit upon relinquishment of the Fifth

Amendment right to remain silent constituted an impermissible penalty on

assertion of that right. See, e.g., Minnesota v. Murphy,

,

,

(1984) (loss of benefit of probation);

Cunningham,

,

(forfeiture of future political

office); Turley,

,

(loss of benefit of future

contracting privileges). As discussed infra, we believe that under the case-

by-case inquiry required by the Court's decisions, * * * the single, and

determinative question is whether the choice presented to the defendant is

of such a character that he is effectively forced to surrender his right to

remain silent. See Garrity v. New Jersey,

,

, -23-

618,

(1967) (the question is “whether the [defendant] was

deprived of his ‘free choice to admit, to deny, or to refuse to answer’ ”)

(quoting Lisenba v. California,

,

,

(1941)).

(Citations omitted.) Frazier,

.

{¶ 52} Following these observations, Frazier discussed the “penalty cases,” like

Cunningham, Turley and Murphy.

. The court then commented on a

parallel line of Supreme Court cases in the plea bargain context, which did not cite the

“ ‘penalty’ cases,” and also had “rejected claims that the offer of lower sentences in

exchange for guilty pleas impermissibly compels a defendant to incriminate himself.”

, discussing Corbitt v. New Jersey,

,

,

(1978).

{¶ 53} In Frazier, the court concluded that the choice presented by the two-level

reduction “acceptance of responsibility” guideline was more analogous to the plea bargain

cases than “the choice faced by the plaintiffs in the employment penalty cases.” Id. at

1084. The differences between those cases and employment cases included the

“ ‘incidental consequence’ of a legitimate governmental practice of encouraging, through

leniency in sentencing, both cooperation with law enforcement authorities and contrition

on the part of the defendant.” (Citation omitted.) Id. They also included the fact that

the choice confronting a defendant in a sentencing case “is not ‘likely to exert such

pressure upon an individual as to disable him from making a free and rational choice.’ ”

(Citations omitted.) Id. at 1085.

{¶ 54} Although the case before us involves an employment situation, we need not -24-

base our decision on whether it involves a “denied benefit” or a “penalty.” While

Schimmel’s argument is persuasive in some respects, the circumstances before us are

fundamentally different than the employment cases finding Fifth Amendment violations.

Specifically, even though we reviewed cases in both state and federal jurisdictions, we

could not find any situation in which Fifth Amendment rights have been extended to

statements elicited during a pre-employment interview.

{¶ 55} In Murphy, the Supreme Court stressed that “[i]n each of the so-called

‘penalty’ cases, the state not only compelled an individual to appear and testify, but also

sought to induce him to forgo the Fifth Amendment privilege by threatening to impose

economic or other sanctions ‘capable of forcing the self-incrimination which the

Amendment forbids.’ ” Murphy,

,

,

,

quoting Cunningham,

,

,

.

{¶ 56} For example, in Garrity, the New Jersey Supreme Court had ordered the

state’s attorney general to investigate alleged irregularities in the municipal court. See

State v. Naglee,

,

(1965), reversed by Garrity,

,

,

. After a “long preliminary investigation,” a deputy

attorney general scheduled the taking of statements from the police officer defendants,

and a court stenographer recorded the statements.

By statute, these officers were

required to testify on matters concerning their employment, and were subject to removal

from their positions if they refused to testify. Id. at 220, citing former N.J.S. 2-A:81-17.1.

As was noted, the United States Supreme Court held on appeal that the officers’

statements were coerced in violation of the Fifth Amendment, and could not be used in

subsequent criminal proceedings.

. -25-

{¶ 57} Likewise, in Turley, the architects were summoned to testify before a grand

jury, and had no choice other than to testify and waive their Fifth Amendment rights, or to

assert their rights and be penalized. Turley,

,

,

. The statutory penalty for asserting their rights was potential cancellation of existing

contracts and disqualification from future contracting opportunity for five years.

. In Cunningham, the attorney was subpoenaed to appear before a grand jury and

refused to waive immunity. By statute, his refusal terminated his current political party

office and prevented him holding any other public or party office for five years.

Cunningham,

,

,

.

{¶ 58} The court stressed in Garrity that “[w]here the choice is ‘between the rock

and the whirlpool,’ duress is inherent in deciding to ‘waive’ one or the other.”

. However, no such rock and whirlpool existed in the case before us. In contrast to

the above cases, Schimmel was not compelled to appear before any kind of inquiry or

judicial body, nor was he required to do anything. Instead, he voluntarily applied for a

job with the Sheriff’s Department, and chose to give statements and take a polygraph.

Notably, this was not a criminal investigation; it was simply part of a routine process of

applying for a law-enforcement position.

{¶ 59} In O'Hartigan v. Dept. of Personnel,

,

(1991),

an applicant for a position with the Washington State Patrol was told that as part of the

screening process, she would have to take a polygraph examination.

. After

refusing to take an examination, she was told that she could not be considered for a word-

processing job for which she had applied.

. The applicant then brought suit

against the Washington State Department of Personnel, claiming that the polygraph -26-

examination violated her state and federal rights to privacy.

However, the Supreme

Court of Washington disagreed.

{¶ 60} The court noted that under an applicable Washington State statute,

polygraph testing was generally prohibited for employment screening purposes, but was

allowed for initial applications with law enforcement agencies.

. According to

the court, this distinction was supported by the State’s legitimate governmental interest

“in providing its citizens with law enforcement agencies free of corruption and secure in

their employees' access to sensitive information.”

In this vein, the court emphasized

that other screening methods asserted by the applicant, “such as probationary periods

and background checks, are, as the State argues, vulnerable to dishonest responses by

either an applicant or the applicant's background references and were not deemed

adequate by the Legislature. Moreover, a probationary period allows persons access to

law enforcement premises, documents, and perhaps investigative information during the

evaluation period, before a satisfactory assessment can be made.” Id.1

{¶ 61} Ohio does not have a similar statute, but polygraph examinations have been

used for many years in connection with public service positions. See, e.g., Vincent v.

Civ. Serv. Comm., City of Zanesville,

,

(1990) (applicants

were improperly removed from civil service eligibly list for firefighter positions after they

disclosed prior drug use during polygraph examinations); State v. Karnhem, 2d Dist.

Miami No. 78-CA-17,

, *1-2 (Apr. 6, 1979) (testimony about routine pre-

employment polygraphs as well as polygraphs administered to undercover agent after the

1 The court did indicate that the State was required to adopt guidelines for follow-up questions, to prevent “ ‘unbounded, standardless inquiry.’ ” O'Hartigan,

,

, quoting Thorne v. City of El Segundo,

(9th Cir. 1983). -27-

defendant’s alleged crimes was improperly admitted to buttress agent’s credibility.

However, the defendant waived any error by failing to object at an appropriate time or to

request curative instructions).2

{¶ 62} In addition, Ohio courts have held that results of polygraph tests

administered by a police agency for employment purposes are public records and are

subject to disclosure. See, e.g., State ex rel. Lorain Journal Co. v. Lorain,

,

, (9th Dist. 1993) (polygraph records not exempt from

disclosure); State ex rel. Multimedia, Inc. v. Snowden,

,

(1995). (“[i]nvestigatory reports compiled by law enforcement agencies to assist

employment decisions do not constitute confidential law enforcement investigatory

records excepted from disclosure under R.C. 149.43, since they do not directly involve

law enforcement.”)

{¶ 63} In short, there was no compelled testimony before an investigatory body or

proceeding in this case that would warrant application of a suppression remedy.

Schimmel also lacked any property interest in employment with the Sheriff’s Department

or with Clark County. “Property interests * * * are not created by the Constitution.

Rather they are created and their dimensions are defined by existing rules or

understandings that stem from an independent source such as state law – rules or

understandings that secure certain benefits and that support claims of entitlement to

those benefits.” Bd. of Regents of State Colleges v. Roth,

, 92

2 Federal law does ban the use of polygraphs in various situations, including the pre- employment process, but exempts the United States government, as well as state and local governments and their political subdivisions, from the prohibition. See 29 U.S.C. 2002 and 29 U.S.C. 2006(a), which are part of the Employee Polygraph Protection Act of 1988. -28-

S.Ct. 2701,

(1972).

{¶ 64} In this vein, the Supreme Court of Ohio has held that “it is virtually axiomatic

that there is no constitutionally protected right to public employment.” (Citations

omitted.) Walton v. Montgomery Cty. Welfare Dept.,

,

(1982). Even probationary civil service employees do not have a property interest

in continued employment. State ex rel. Rose v. Ohio Dept. of Rehab. & Corr.,

,

(2001). Accord Fletcher v. Ohio Dept. of Transp., 10th

Dist. Franklin No. 12AP-46,

, ¶ 11.

{¶ 65} Schimmel was free to apply for employment, and he was also free to

disengage himself from the employment process at any time. He did not do so, and we

find no evidence of coerced testimony within the meaning of the Fifth Amendment.

Accordingly, the State’s sole assignment of error is sustained, and the judgment of the

trial court will be reversed.

III. Conclusion

{¶ 66} The State’s sole assignment of error having been sustained, the judgment

of the trial court is reversed, and this cause is remanded for further proceedings.

.............

TUCKER, J., concurs.

FROELICH, J., concurring in judgment only. -29-

Copies mailed to:

Andrew R. Picek Andrew P. Pickering Eric E. Willison Bradley P. Koffel Hon. Richard J. O’Neill