Trooper’s Garrity Rights Violated

Trooper’s Garrity Rights Violated

Written on 09/20/2019
Will Aitchison

Christopher Kober was a trooper with the Nebraska State Patrol. Kober was criminally charged on June 1, 2017, with theft by receiving stolen property valued at more than $5,000, a Class IIA felony under Nebraska law.

The criminal investigation began when the Bellevue Police Department informed the Patrol that, acting on a tip from Kober’s wife, it had discovered a large amount of prescription drugs in an ammunition can in the basement of Kober’s home. Kober was relieved of his badge and firearm as well as of his regular duties and was given a memorandum detailing the charges against him.

Kober was also given a document entitled “Garrity Warning,” which stated that Kober was ordered to answer questions in an internal investigation and that “neither your statements nor any information or evidence which is gained by reason of such statements can be used against you in any subsequent criminal proceeding.”

The Patrol next contacted Kober to inquire about six boxes of ammunition with Patrol labels that the Patrol believed may be in Kober’s home, again based on information from the Bellevue Police. An investigator stated that Kober had thought it was possible that, as a range instructor, he had brought home some ammunition and placed it on a workbench in his basement. However, once Kober was made aware of the internal affairs investigation, Kober and his brother removed all ammunition and firearms from Kober’s home, transferring it to the brother’s home in Iowa so as to forestall any further allegations against him by his wife. The Patrol directed Kober to return the ammunition and Kober largely but not completely complied.

Eventually Kober was again questioned in a more formal setting at the Patrol’s headquarters in Lincoln. The investigator again gave Kober Garrity warnings.

When the Sarpy County Attorney filed theft charges against Kober, he sought to suppress his statements and the fruits of his statements. A trial court granted the motion to suppress and the State appealed.

The Nebraska Court of Appeals upheld the order suppressing Kober’s statements. The Court found that “a two-prong approach applies in determining whether a defendant is entitled to the protections of Garrity: (1) that the defendant have a subjective belief that he or she was compelled to give a statement on threat of the loss of his or her job; and (2) that the defendant’s belief be objectively reasonable.

“Here the State has conceded that Kober had a subjective belief that he was compelled to give a statement on threat of the loss of his job. Thus, the question before me is whether Kober’s subjective belief was objectively reasonable.

“A subjective belief that Garrity applies will not be considered objectively reasonable if the State has played no role in creating the impression that the refusal to give the statement will be met with termination of employment. The existence of a statute, rule, regulation, or policy subjecting an employee to termination for the failure to provide a statement is highly relevant, though not usually dispositive, in determining whether a subjective belief is objectively reasonable.

“Here, it is clear that the Patrol’s policies, rules, and regulations subjected Kober to possible termination from his job. But the totality of the circumstances coming soon after the origination of the initial investigation into the drugs found at Kober’s home combine to make his subjective belief objectively reasonable. Kober had been recently relieved of his duties, along with his badge and gun, and served with a Garrity warning. He certainly understood that his job was in serious jeopardy after the drugs were found in ammunition canisters in his basement. Days later, he was questioned as to the ammunition that was similarly found in his basement. Under these circumstances, the district court did not err in finding that Kober’s belief was objectively reasonable and its order suppressing his statements is affirmed.”

State of Nebraska v. Kober, 2019 WL 3215942 (Neb. Ct. App. 2019).