State v. Schimmel
| Decision Date | 22 September 2017 |
| Docket Number | No. 2017–CA–23,2017–CA–23 |
| Citation | 2017 Ohio 7747,85 N.E.3d 774 |
| Parties | STATE of Ohio, Plaintiff–Appellant v. Curtis E. SCHIMMEL, Defendant–Appellee |
| Court | Ohio Court of Appeals |
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
{¶ 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.
{¶ 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 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:
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, 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, 414 U.S. 70, 94 S.Ct. 316, 38 L.Ed.2d 274 (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. Id. at 75–76, 94 S.Ct. 316. 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. Id. at 76, 94 S.Ct. 316. The Supreme Court agreed, and held that the statutes were unconstitutional.
{¶ 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.
{¶ 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, 424 U.S. 648, 96 S.Ct. 1178, 47 L.Ed.2d 370 (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." Id. at 649, 96 S.Ct. 1178.
{¶ 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. Id. at 654–655, 96 S.Ct. 1178. 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. Id. at 657–662, 96 S.Ct. 1178. 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 T...
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