THIRD DIVISION October 13, 2010
1-09-3353 ) APPEAL FROM THE ) CIRCUIT COURT OF THE PEOPLE OF THE STATE OF ILLINOIS, ) COOK COUNTY Plaintiff-Appellant, ) ) v. ) No. 08 CR 7115 ) ) HONORABLE JOHN HALEAS, ) JAMES M. OBBISH, Defendant-Appellee. ) JUDGE PRESIDING.
JUSTICE STEELE delivered the opinion of the court:
Plaintiff, the State of Illinois, appeals two orders of the circuit court of Cook County
suppressing a statement defendant, Chicago police officer John Haleas, gave the Chicago Police
Department's Internal Affairs Division (IAD) and dismissing an indictment against Officer Haleas
for official misconduct, obstructing justice and perjury. For the following reasons, we affirm in
part, vacate in part and remand the case for further proceedings.
BACKGROUND
The record on appeal discloses the following facts. On April 9, 2005, Officer Haleas was
called to investigate a possible case of driving under the influence (DUI) at 1534 North Laramie in
Chicago. Two prosecutors accompanied Officer Haleas on a "ride-along" as part of their
assignment to traffic court. Officer Haleas became involved in the investigation and arrest of
Edward Beck on the charge of DUI.
On May 17, 2005, IAD launched an investigation into the circumstances of Beck's arrest.
The prosecutors from the ride-along accused Officer Haleas of failing to: (1) give Beck the proper
warning; (2) observe Beck for 20 minutes before administering the breath test; and (3) administer 1-09-3353
the standard field sobriety test as shown in the reports of Beck's arrest. IAD assigned the
investigation to Sergeant James P. Cradick, who interviewed the prosecutors and the police
officers who had Beck in custody when Officer Haleas arrived at the scene.
On November 7, 2005, Officer Haleas was served with a notification of administrative
rights in the IAD investigation, advising him of the following:
"1. Any admission or statement made by you in the course of this hearing,
interrogation or examination may be used as the basis of your suspension or as the basis
for charges seeking your removal or discharge or suspension in excess of 30 days.
2. You have the right to counsel of your choosing to be present with you to advise
you at this hearing, interrogation or examination and you may consult with him as you
desire.
3. You have a right to be given a reasonable time to obtain counsel of your
choosing.
4. You have no right to remain silent. You have an obligation to truthfully answer
questions put to you. You are advised that your statements or responses constitute an
official police report.
5. If you refuse to answer questions put to you, you will be ordered by a superior
officer to answer the questions.
6. If you persist in your refusal after the order has been given to you, you are
advised that such refusal constitutes a violation of the Rules and Regulations of the
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Chicago Police Department and will serve as a basis for which your discharge will be
sought.
7. You are further advised that by law any admission or statement made by you
during the course of this hearing, interrogation or examination and the fruits hereof cannot
be used against you in a subsequent criminal proceeding."
Officer Haleas was also advised of the complainants and allegations against him. The same day,
Officer Haleas, represented by counsel, gave a statement about the case to Sergeant Cradick.
Officer Haleas prefaced his statement with the comment that he was not making the statement
voluntarily, but only because he knew he could lose his job if he refused.
On March, 22, 2006, Sergeant Cradick concluded his investigation, recommending a five
day suspension. Sergeant Cradick's superiors did not concur in the recommendation, based in
part on purported inconsistencies in the prosecutors' statements and in part on Officer Haleas's
experience and record in DUI arrests. Debra Kirby, the assistant deputy superintendent of IAD,
recommended a one-day suspension, agreeing with Sergeant Cradick's sustained finding that
Officer Haleas did not perform the standardized field sobriety test on Edward Beck. Ultimately,
Officer Haleas was suspended for one day on July 30, 2007.
On April 4, 2008, the State obtained an indictment against Officer Haleas for official
misconduct, obstructing justice, and perjury in the arrest of Edward Beck. On July 10, 2008, the
State tendered discovery to defense counsel, including Officer Haleas's IAD statement. On
October 30, 2008, Officer Haleas moved to suppress his statement and dismiss the indictment,
arguing that his statement was involuntary under Garrity v. New Jersey, 385 U.S. 493, 500, 17 L.
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Ed. 2d 562, 567, 87 S. Ct. 616, 620 (1967), and that the State improperly used the statement to
obtain the indictment under Kastigar v. United States, 406 U.S. 441, 461-62, 32 L. Ed. 2d 212,
227, 92 S. Ct. 1653, 1665 (1972).
On April 28, 2009, following briefing and a hearing on the matter, the trial court granted
the motion to suppress Officer Haleas's IAD statement, ruling that there was a violation of
Garrity. The trial court also indicated the matter would be set for a hearing on the issue of
whether the indictment would be dismissed under Kastigar. On May 5, 2009, the State moved for
reconsideration. On June 25, 2009, the trial court denied the State's motion to reconsider.
On August 27, 2009, the trial court held a hearing on whether the indictment would be
dismissed under Kastigar. The State adduced testimony from Sergeant Cradick and Assistant
State's Attorney (ASA) David Navarro. Sergeant Cradick testified regarding the IAD
investigation. According to Sergeant Cradick, his report on the case was returned with notes to
reinterview the prosecutors who were on the ride-along to ascertain their location when Officer
Haleas administered the Breathalyzer test and to determine whether they were able to see the test.
Sergeant Cradick interviewed the prosecutors again on January 24 and 27, 2006. Sergeant
Cradick stated that he did not mention Officer Haleas's statement to either of the prosecutors.
Sergeant Cradick also testified that in late 2007, he was contacted by ASA Navarro
regarding the criminal investigation of Officer Haleas. Sergeant Cradick testified that he gave
ASA Navarro a summary of the IAD investigation, including a summary of what Officer Haleas
said in the IAD statement, i.e., that he denied the allegations against him.
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ASA Navarro testified that Sergeant Cradick did not tell him about the IAD statement.
Indeed, ASA Navarro testified that he advised Sergeant Cradick not to tell him about the IAD
statement. ASA Navarro also testified it is the policy of the Cook County State's Attorney's
office that Garrity does not apply to Chicago Police Department officer statements, but that his
comments to Sergeant Cradick were made out of an "abundance of caution."
ASA Navarro further testified that in December 2007, he received a redacted version of
the IAD complaint register file (CR file), which did not contain Officer Haleas's IAD statement or
any information about that statement. ASA Navarro stated that he interviewed Edward Beck, as
well as the people Beck said he was with at the time of the traffic stop. ASA Navarro testified
that he spoke to the prosecutors who went on the ride-along, but only to let them know an
investigation was ongoing; he did not discuss Officer Haleas's statement with them. ASA Navarro
also testified that he spoke with Officers Erin Hall and Kevin Carlquist before presenting their
testimony to the grand jury, but he did not speak with them about Officer Haleas's statement.
According to ASA Navarro, he did not review the complete CR file, including Officer
Haleas's statement, until after Officer Haleas moved to suppress it. ASA Navarro further stated
that he was asked approximately 10 days before the Kastigar hearing to produce the redacted CR
file, but was unable to do so. ASA Navarro stated that the public corruption unit moved after his
departure in March 2009 and that a search of both offices failed to reveal the redacted file.
Following argument from counsel, the trial court granted the motion to dismiss the
indictment. The trial court reasoned that the State had failed to carry its burden of showing that it
made no meaningful use of the IAD statement. The trial court concluded that the State's
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witnesses had been exposed to Officer Haleas's version of events. The trial court also noted the
conflicting testimony regarding ASA Navarro's exposure to the IAD statement and the State's
inability to produce a redacted version of the CR file. The State filed a timely notice of appeal to
this court.
DISCUSSION
I
On appeal, the State first argues that the trial court erred in granting Officer Haleas's
motion to suppress. When we review a trial court's ruling on a motion to suppress a confession,
findings of fact and credibility determinations are accorded great deference and will not be
reversed unless they are against the manifest weight of the evidence. People v. Braggs, 209 Ill. 2d
492, 505, 810 N.E.2d 472, 481 (2003). However, the ultimate question of whether the trial court
erred in ruling that the confession was voluntary is a legal question, which we review de novo.
Braggs, 209 Ill. 2d at 505, 810 N.E.2d at 481.
The fifth amendment states that "[n]o person *** shall be compelled in any criminal case
to be a witness against himself." U.S. Const., amend. V. "To qualify for the Fifth Amendment
privilege, a communication must be testimonial, incriminating, and compelled." Hiibel v. Sixth
Judicial District Court of Nevada, Humboldt County, 542 U.S. 177, 189, 159 L. Ed. 2d 292, 305,
124 S. Ct. 2451, 2460 (2004). In this case, neither party disputes the testimonial nature of Officer
Haleas's IAD statement, focusing instead on whether the IAD statement is compelled and
incriminating. We address these issues in turn.
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The protections of the fifth and fourteenth amendments against coerced statements
prohibit use in subsequent criminal proceedings of statements obtained from police officers under
threat of removal from office. Garrity v. New Jersey, 385 U.S. 493, 500, 17 L. Ed. 2d 562, 567,
87 S. Ct. 616, 620 (1967). However, in Garrity, state law mandated discharge of police officers
who invoked their privilege against self-incrimination. Garrity, 385 U.S. at 494 n.1, 17 L. Ed. 2d
at 564 n.1, 87 S. Ct. at 617 n.1. Since the United States Supreme Court's decision in Garrity,
federal and state courts have reached different conclusions about its application to cases where
the threat of removal from office is less certain.
For example in People v. Bynum, 159 Ill. App. 3d 713, 512 N.E.2d 826 (1987), the
Fourth District of this court, persuaded by United States v. Indorato, 628 F.2d 711 (1st Cir.
1980), held that Garrity immunity will be applied only in situations where the record reveals an
explicit or overt threat of mandatory termination for a failure to answer questions, not in cases
where the officer may be disciplined, but removal from office is not certain. Bynum, 159 Ill. App.
3d at 715, 512 N.E.2d at 827; see also State v. Litvin, 147 N.H. 606, 794 A.2d 806 (2002);
People v. Coutu, 235 Mich. App. 695, 599 N.W.2d 556 (1999); Commonwealth v. Harvey, 397
Mass. 351, 491 N.E.2d 607 (1986); People v. Sigman, 42 Ill. App. 3d 624, 356 N.E.2d 400
(1976).
A second line of authority, evolving from United States v. Friedrick, 842 F.2d 382 (D.C.
Cir. 1988), holds that Garrity immunity will be applied in situations where the officer has a
subjective belief that he will be fired for refusing to answer questions and that belief is objectively
reasonable under the circumstances. See McKinley v. City of Mansfield, 404 F.3d 418 (6th Cir.
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2005); United States v. Vangates, 287 F.3d 1315 (11th Cir. 2002); State v. Chavarria,
2001-NMCA-095, 131 N.M. 172, 33 P.3d 922; People v. Sapp, 934 P.2d 1367 (Colo. 1997).
These decisions have determined that Garrity immunity may apply even where the threat of
termination is implied rather than explicit or overt.
In People v. Smith, 399 Ill. App. 3d 534, 926 N.E.2d 452 (2010), the Third District
reviewed this case law, noting that Bynum was decided a year before Friedrick. Smith, 399 Ill.
App. 3d at 540, 926 N.E.2d at 457. Although the Third District was urged to adopt Friedrick,
the court found it unnecessary to adopt that approach or the narrower approach of Indorato and
its progeny. Smith, 399 Ill. App. 3d at 540, 926 N.E.2d at 457. Instead, the Smith court
reasoned that the overall intent of the Garrity warnings given to the police, standing alone and
when read as a whole, revealed that defendants were faced with the option of either incriminating
themselves or losing their means of livelihood. Smith, 399 Ill. App. 3d at 540-41, 926 N.E.2d at
457-58. The Smith court reasoned:
"These defendants did not give their statements in an unfettered exercise of free will, but
rather to avoid a clearly expressed penalty for choosing to remain silent. Statements given
under such coercion cannot be sustained as voluntary. Garrity, 385 U.S. at 497, 17 L. Ed.
2d at 565, 87 S. Ct. at 618. Moreover, we note that defendants expressly reserved, in all
circumstances other than the internal investigation and any resulting disciplinary
proceedings, their constitutional right to remain silent and any protections afforded under
Garrity. Consequently, we find that the 'Garrity Warnings' standing alone are sufficient to
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support the application of Garrity immunity. Smith, 399 Ill. App. 3d at 541, 926 N.E.2d
at 458.
Notably, the court reached this conclusion despite the fact that the warning form in question
referred to " 'possible job forfeiture.' " (Emphasis omitted.) Smith, 399 Ill. App. 3d at 541, 926
N.E.2d at 457.
We are persuaded by the reasoning of the Smith court. In assessing voluntariness of a
defendant's statement, courts routinely consider whether the defendant was subject to threats,
deceit or promises by the government. E.g., People v. Clarke, 391 Ill. App. 3d 596, 615, 915
N.E.2d 1, 18 (2009). In many cases, these issues are contested. Here, however, the threat that
discharge will be sought for noncooperation is in writing, as is the promise that any statement
(and the fruits thereof) cannot be used in any subsequent criminal proceeding. Indeed, to all
appearances, the entire point of issuing the Garrity warnings is to compel a statement from the
subject of the investigation. Accordingly, the trial court did not err in ruling that Officer Haleas's
statement was compelled.
In its motion for reconsideration of the Garrity issue, the State raised the argument that
the IAD statement was not incriminating. On appeal, the State argues not only that the statement
is not incriminating, but also that Officer Haleas does not have a right to lie in the statement he
gave to the IAD.
The latter suggestion requires little discussion. The United States Supreme Court has long
held that the question of coercion under the self-incrimination clause "[is] to be answered with
complete disregard of whether or not [the accused] in fact spoke the truth." Rogers v. Richmond,
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365 U.S. 534, 544, 5 L. Ed. 2d 760, 768, 81 S. Ct. 735, 741 (1961).
As for the exculpatory nature of the IAD statement, the United States Supreme Court has
defined "incrimination" broadly to encompass not only "answers that would in themselves support
a conviction *** but likewise *** those which would furnish a link in the chain of evidence
needed to prosecute the [defendant]." Hoffman v. United States, 341 U.S. 479, 486, 95 L. Ed.
1118, 1124, 71 S. Ct. 814, 818 (1951). "Compelled testimony that communicates information
that may 'lead to incriminating evidence' is privileged even if the information itself is not
inculpatory." United States v. Hubbell, 530 U.S. 27, 38, 147 L. Ed. 2d 24, 37, 120 S. Ct. 2037,
2044 (2000), quoting Doe v. United States, 487 U.S. 201, 208 n.6, 101 L. Ed. 2d 184, 195 n.6,
108 S. Ct. 2341, 2346 n.6 (1988); see also Kastigar, 406 U.S. at 445, 32 L. Ed. 2d at 217, 92 S.
Ct. at 1656 (fifth amendment privilege against self-incrimination "protects against any disclosures
that the witness reasonably believes could be used in a criminal prosecution or could lead to other
evidence that might be so used" (emphasis added)).
In denying the State's motion for reconsideration, the trial court rejected the State's
argument that the IAD statement was not incriminating. The trial court found the IAD statement,
which gives Officer Haleas's version of the events at issue, could be used by the State in
questioning its own witnesses to develop evidence against Officer Haleas. Indeed, the record in
this case shows that the IAD appears to have made use of the statement in its own investigation.
Given the IAD statement could lead to evidence of the sort that could be used in a criminal
prosecution of Officer Haleas, we conclude that the trial court did not err in rejecting the State's
argument on reconsideration.
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In sum, we conclude the trial court did not err in suppressing Officer Haleas's IAD
statement.
II
Next, the State argues on appeal that the trial court erred in dismissing the indictment
under Kastigar and its progeny. In Kastigar, the United States Supreme Court upheld the
constitutionality of a federal immunity statute because it concluded that the statute provided
immunity that was coextensive with fifth amendment protections. Kastigar, 406 U.S. at 462, 32
L. Ed. 2d at 227, 92 S. Ct. at 1666. The Kastigar Court further ruled that, once a defendant
demonstrates that he or she has testified under a grant of immunity to matters related to the
prosecution, the prosecutor has the burden of showing that its evidence is not tainted by showing
it had a legitimate source for the disputed evidence wholly independent of the compelled
testimony. Kastigar, 406 U.S. at 460, 32 L. Ed. 2d at 226, 92 S. Ct. at 1665.
This case does not involve a statutory immunity, but a statement ruled involuntary
pursuant to Garrity. As the court observed in United States v. Slough, 677 F. Supp. 2d 112, 132-
33 (D.D.C. 2009):
"[A]lthough Garrity does not expressly invoke the protections of Kastigar, every
circuit to have addressed the issue has held that 'a government employee who has been
threatened with an adverse employment action by her employer for failure to answer
questions put to her by her employer receives immunity from the use of her statements or
their fruits in subsequent criminal proceedings,' Sher v. Dep't of Veterans Affairs, 488
F.3d 489, 501-02 & n. 12 (1st Cir. 2007); In re Grand Jury Proceedings (Kinamon), 45
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F.3d 343, 348 (9th Cir. 1995) (holding that statements obtained from an employee who
was required to answer questions under a threat of dismissal were subject to use and
derivative use immunity); In re Grand Jury Subpoenas (Stover), 40 F.3d 1096, 1102-03
(10th Cir. 1994) (observing that 'Garrity's protection ... acts to immunize ... compelled
statements, as it prohibits their subsequent use against the officer so as not offend the Fifth
Amendment Privilege' and that this prohibition 'provides a comprehensive safeguard,
barring the use of compelled testimony as an "investigatory lead," and also barring the use
of any evidence obtained by focusing investigation on a witness as a result of his
compelled disclosures') (quoting Kastigar, 406 U.S. at 460, [32 L. Ed. 2d at 226,] 92 S.
Ct. [at 1664-65]); In re Grand Jury Proceedings (Cohen), 975 F.2d 1488, 1490 (11th Cir.
1992) (observing that '[i]mmunity under Garrity prevents any statements made in the
course of the internal investigation from being used against the officers in subsequent
criminal proceedings'); Uniformed Sanitation Men Ass'n v. Comm'r of Sanitation of the
City of N.Y., 426 F.2d 619, 626 (2d Cir.1970) (stating that in Garrity, 'the very act of the
attorney general in telling the witness that he would be subject to removal if he refused to
answer was held to have conferred ... immunity').
Furthermore, courts have uniformly held that 'if a criminal defendant ...
demonstrates that she was compelled to testify by her government employer, "the
government must show that any evidence used or derived has a legitimate source wholly
independent of the compelled testimony." ' United States v. Moten, 551 F.3d 763, 766
(8th Cir. 2008) (quoting Kastigar, 406 U.S. at 460, [32 L. Ed. 2d at 226,] 92 S. Ct. [at
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1665]); In re Grand Jury, Doe, 478 F.3d 581, 583-84 (4th Cir. 2007) (noting that if a
police officer believed statements compelled under Garrity 'were used to indict him, he
would be entitled to a Kastigar hearing, at which the government would bear the burden
of "prov[ing] that the evidence it proposes to use is derived from a legitimate source
wholly independent of the compelled testimony" ') (quoting Kastigar, 406 U.S. at 441, [32
L. Ed. 2d at 226,] 92 S. Ct. [at 1665]); Kinamon, 45 F.3d at 348 (ordering the district
court to conduct a Kastigar hearing to determine whether statements obtained by threat of
job loss were improperly used in a grand jury proceeding); Stover, 40 F.3d at 1103
(holding that '[i]f an officer, whose compelled statement [under Garrity] has been
considered by the grand jury, ultimately is indicted, that officer will be able to challenge
the indictment and the government will be required to prove that its evidence derives
entirely from legitimate sources or that the grand jury's exposure to the officer's statement
was harmless'). Thus, the court concluded that statements compelled under Garrity are
entitled to the full panoply of protections that Kastigar provides to other immunized
statements."
Because the use of compelled testimony in the Garrity context also directly implicates the
individual's fifth amendment right against self-incrimination, we agree that the protections
afforded by Kastigar are available to defendants whose statements have been suppressed under
Garrity.
Both parties acknowledge that Illinois courts have not yet addressed the proper standard
of review on a motion to dismiss an indictment or suppress evidence under Kastigar. Both sides
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also note that courts that have considered the issue generally have applied the clear error
standard. E.g., United States v. Orlando, 281 F.3d 586, 593 (6th Cir. 2002). We agree that when
the court uses correct legal principles, its taint determination is a factual finding subject to review
under the clearly erroneous standard. United States v. Harris, 973 F.2d 333, 337 (4th Cir. 1992);
United States v. Jones, 542 F.2d 186, 199 (4th Cir. 1976), cert. denied, 426 U.S. 922, 49 L. Ed.
2d 375, 96 S. Ct. 2629 (1976). However, the determination of the correct legal principles, like
any question of law, is reviewed de novo. See, e.g., People v. King, 366 Ill. App. 3d 552, 852
N.E.2d 559 (2006).
The parties disagree over the scope of the burden imposed by Kastigar. Officer Haleas
relies heavily on the standard articulated by the District of Columbia Circuit in United States v.
North (North I), 910 F.2d 843 (D.C. Cir. 1990) (per curiam), modified, United States v. North
(North II), 920 F.2d 940 (D.C. Cir. 1990) (per curiam), cert. denied, 500 U.S. 941, 114 L. Ed. 2d
477, 111 S. Ct. 2235 (1991), and United States v. Poindexter, 951 F.2d 369 (D.C. Cir. 1991),
cert. denied, 506 U.S. 1021, 121 L. Ed. 2d 583, 113 S. Ct. 656 (1992). These cases, representing
"the most expansive reading of the Fifth Amendment to date regarding the evidentiary use of
immunized testimony" (United States v. Helmsley, 941 F.2d 71, 82 (2d Cir. 1991), cert. denied,
502 U.S. 1091, 117 L. Ed. 2d 409, 112 S. Ct. 1162 (1992)), require the prosecution to make a
two-part showing to meet its Kastigar burden. First, the prosecution must prove that there is an
independent source for all matters on which the witness testifies. Poindexter, 951 F.2d at 373.
Second, the prosecution must prove that any witness exposed to compelled statements has not
shaped or altered his or her testimony in any way, either directly or indirectly, as a result of that
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exposure. Poindexter, 951 F.2d at 373; North II, 920 F.2d at 942; North I, 910 F.2d at 860-63,
872-73.
Indeed, Officer Haleas argues that these protections extend beyond evidentiary use of his
IAD statement (including the direct presentation of the statement to the grand or petit jury, as
well as any derivative use of the statement) to nonevidentiary use of the statement. Again, the
Slough court summarizes the approach of the District of Columbia Circuit :
"Nonevidentiary use *** is that which does not culminate directly or indirectly in
the presentation of evidence against the immunized person. North I, 910 F.2d at 857.
Such use includes 'assistance in focusing the investigation, deciding to initiate prosecution,
refusing to plea bargain, interpreting evidence, planning cross-examination and otherwise
generally planning trial strategy.' Id. Although Kastigar clearly prohibits the government
from making any direct or indirect evidentiary use of immunized testimony, see Kastigar,
406 U.S. at 460, [32 L. Ed. 2d at 226,] 92 S. Ct. [at 1664], it 'does not expressly discuss
the propriety of nonevidentiary use,' North I, 910 F.2d at 858. The Circuit declined to
resolve the issue in North I, see id. at 860 (assuming without deciding that Kastigar bars
nonevidentiary use of immunized testimony), and has yet to squarely address the issue, see
United States v. Kilroy, 27 F.3d 679, 687 n. 7 (D.C. Cir. 1994).
Nonetheless, the court derives significant guidance regarding the permissible
bounds of nonevidentiary use in the Circuit's discussion of the issue in North I. The
Circuit began its analysis by rejecting the rule articulated in United States v. McDaniel,
482 F.2d 305 (8th Cir. 1973), which held that any nonevidentiary use necessarily violates
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the Fifth Amendment. See North I, 910 F.2d at 858-59 (citing McDaniel, 482 F.2d at
311). The Circuit noted its agreement with the holdings of other circuits that 'a
prosecution is not foreclosed merely because the "immunized testimony might have
tangentially influenced the prosecutor's thought processes in preparing for the indictment
and preparing for trial." ' Id. at 859 (quoting United States v. Mariani, 851 F.2d 595, 600
(2d Cir. 1988)); see also United States v. Serrano, 870 F.2d 1, 16 (1st Cir. 1989)
(concluding that the McDaniel approach 'would in effect grant a defendant transactional
immunity once it is shown that government attorneys or investigators involved in the
prosecution were exposed to the immunized testimony'). At the same time, the Circuit
stated that insofar as the authorities criticizing McDaniel 'may be read as establishing a
rule that Kastigar allows nonevidentiary use of compelled testimony under all
circumstances, we find those cases troubling.' North I, 910 F.2d at 859-60; cf. Kastigar,
406 U.S. at 458-59, [32 L. Ed. 2d at 225,] 92 S. Ct. [at 1664] (observing that in order
not to violate the Fifth Amendment privilege against self-incrimination, 'immunity from use
and derivative use [must] "leave[ ] the witness and the Federal Government in
substantially the same position as if the witness had claimed his privilege" in the absence of
a grant of immunity') (quoting [Murphy v. Waterfront Comm'n of New York Harbor, 378
U.S. 52, 79, 12 L. Ed. 2d 678, 695, 84 S. Ct. 1594, 1609 (1964)]). Ultimately, the Circuit
concluded in North I that given the absence of significant prosecutorial exposure to the
immunized testimony in that case, the Circuit was not required to resolve the issue
because the prosecution 'could not have made significant nonevidentiary use' of the
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testimony. North I, 910 F.2d at 860.
The Circuit's analysis in North I suggests that although no Kastigar violation
occurs when a prosecutor's fleeting exposure to immunized testimony has a merely
tangential influence on his or her thoughts about a case, a Kastigar violation may result
when a prosecutor has had significant exposure to immunized testimony and makes
significant nonevidentiary use of that testimony." (Emphasis omitted.) Slough, 677 F.
Supp. 2d at 131.
Officer Haleas argues that the United States Supreme Court resolved this issue in his favor in
Hubbell. However, the portion of Hubbell Officer Haleas cites rejects the argument that the
production of documents at issue was nontestimonial; it does not address the nonevidentiary use
issue. Hubbell, 530 U.S. at 45-46, 147 L. Ed. 2d at 41-42, 120 S. Ct. at 2048. We also note that
other courts have ruled that Kastigar does not extend to nonevidentiary uses of an immunized
statement. E.g., United States v. Mariani, 851 F.2d 595 (2d Cir. 1988); United States v. Byrd,
765 F.2d 1524 (11th Cir. 1985). Moreover, where the immunized statement is essentially a denial
of alleged wrongdoing, the influence on the prosecution's strategy may be deemed tangential,
rather than substantial. E.g., United States v. Bolton, 977 F.2d 1196, 1199 (7th Cir. 1992).
Officer Haleas further argues that the North approach demands much from a procedural
perspective:
"[I]f the prosecution is to continue, the District Court must hold a full Kastigar hearing
that will inquire into the content as well as the sources of the grand jury and trial
witnesses' testimony. That inquiry must proceed witness-by-witness; if necessary, it will
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proceed line-by-line and item-by-item. For each grand jury and trial witness, the
prosecution must show by a preponderance of the evidence that no use whatsoever was
made of any of the immunized testimony either by the witness or by the Office of
Independent Counsel in questioning the witness. This burden may be met by establishing
that the witness was never exposed to North's immunized testimony, or that the allegedly
tainted testimony contains no evidence not 'canned' by the prosecution before such
exposure occurred...Unless the District Court can make express findings that the
government has carried this heavy burden as to the content of all of the testimony of each
witness, that testimony cannot survive the Kastigar test. We remind the prosecution that
the Kastigar burden is 'heavy' not because of the evidentiary standard, but because of the
constitutional standard: the government has to meet its proof only by a preponderance of
the evidence, but any failure to meet that standard must result in exclusion of the
testimony." (Emphasis omitted.) North I, 910 F.2d at 872-73.
Officer Haleas argues that the State failed to carry this burden in every respect. The record on
appeal shows that the trial court essentially adopted Officer Haleas's position. The transcript of
proceedings shows that the trial court was concerned not only about the possible derivative use of
the IAD statement, but also the statement's nonevidentiary value to the prosecution.
In contrast, the State relies on cases like United States v. Koon, 34 F.3d 1416 (9th Cir.
1994), which relied on its prior case law to reject the North approach. The Koon court noted that
in United States v. Lipkis, 770 F.2d 1447, 1449-51 (9th Cir. 1985), where the defendant first
made voluntary statements on three occasions to an FBI agent and subsequently made identical
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statements to the same agent under a grant of immunity, the government had met its burden of
proving that all the evidence introduced at trial was derived from a legitimate source that was
wholly independent of the immunized statements. Koon, 34 F.3d at 1431-32. The Koon court
also discussed United States v. Rogers, 722 F.2d 557, 560 (9th Cir. 1983), cert. denied, 469 U.S.
835, 83 L. Ed. 2d 70, 105 S. Ct. 129 (1984), where a government witness had attended a
proceeding in which the defendant testified under a grant of immunity, but it was clear that it was
based on information the witness learned on his own rather than on the immunized testimony.
Koon, 34 F.3d at 1432. The Koon court ultimately held:
"[T]he prosecutor's Kastigar burden is met if the substance of the exposed
witness's testimony is based on a legitimate source that is independent of the immunized
testimony. Ensuring that the content of a witness's testimony is based on personal
knowledge provides the required Fifth Amendment protections and meets the Kastigar
requirement that the defendant's compelled statements shall not be used against him in
subsequent criminal proceedings." Koon, 34 F.3d at 1432-33.
The State argues that here, as in Koon, we are concerned primarily with occurrence witnesses
testifying on the basis of their personal knowledge. Accordingly, for example, any evidence
obtained from the IAD reinterview of the prosecutors who went on the ride-along was simply
testimony that would emerge in any criminal investigation or trial.
We are persuaded that the Ninth Circuit's view of the scope of Kastigar is the correct one.
This conclusion is rooted in the balance struck by the United States Supreme Court in Kastigar
and its progeny:
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"The independent source doctrine teaches us that the interest of society in deterring
unlawful police conduct and the public interest in having juries receive all probative
evidence of a crime are properly balanced by putting the police in the same, not a worse,
position tha[n] they would have been in if no police error or misconduct had occurred."
(Emphasis omitted.) Nix v. Williams, 467 U.S. 431, 443, 81 L. Ed. 2d 377, 387, 104 S.
Ct. 2501, 2509 (1984), citing Murphy, 378 U.S. at 79, 12 L. Ed. 2d at 695, 84 S. Ct. at
1609; Kastigar, 406 U.S. at 458-59, 32 L. Ed. 2d at 225, 92 S. Ct. at 1664.
Extending the scope of Kastigar to require dismissing an indictment where, as here, the testimony
of occurrence witnesses is based on their personal knowledge would place the State in a worse
position, rather than the same position they would have been in if no error or misconduct had
occurred. It would require dismissal even in cases where the exact same testimony would be
elicited from the witnesses in the course of an investigation or trial without any exposure to a
statement procured pursuant to Garrity warnings. Extending the scope of Kastigar to all
nonevidentiary uses of the IAD statement, without considering whether the use was tangential,
rather than substantial, would have the same effect.
In short, we conclude that the trial court did not apply the correct legal standards of proof
in conducting the Kastigar hearing. Accordingly, we vacate the order of the circuit court
dismissing the indictment. Given the facts and circumstances of the case and the nature of the
errors, we conclude that it would be improper for this court to conduct its own review of the
evidence; thus, we remand this cause to the circuit court for a new hearing, which will allow the
parties to have a full and fair opportunity to adduce evidence pertinent to the applicable standards
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announced in this opinion. See, e.g., In re D.T., 212 Ill. 2d 347, 366-67, 818 N.E.2d 1214, 1228-
29 (2004); People v. Masterson, 207 Ill. 2d 305, 330, 798 N.E.2d 735, 749 (2003); Jensen v. East
Dundee Fire Protection District Firefighters' Pension Fund Board of Trustees, 362 Ill. App. 3d
197, 198-99, 839 N.E.2d 670, 672 (2005).
CONCLUSION
In sum, we conclude that the circuit court did not err in granting the motion to suppress
Officer Haleas's IAD statement. However, the circuit court erred in granting the motion to
dismiss the indictment against Officer Haleas. The order dismissing the indictment is vacated and
the cause is remanded for a new hearing in accordance with the standards stated in this opinion.
Affirmed in part and vacated in part; cause remanded.
NEVILLE and MURPHY, JJ., concur.
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Plea se Use REPORTER OF DECISIONS – ILLINOIS APPELLATE COURT Following (Front Sheet to be Attached to Each Case) Form:
THE PEOPLE OF THE STATE OF ILLINOIS, Complete TITLE of Case Plaintiff-Appellant, v.
JOHN HALEAS,
Defendant-Appellee.
Docket No. No. 1-09-3353 Appellate Court of Illinois COURT First District, THIRD Division
October 13, 2010 Opinion (Give month, day and year) Filed
JUSTICE STEELE delivered the opinion of the court: JUSTICES Neville and Murphy, JJ., concur
dissent[s]
Lower Court and Trial Judge(s) in form indicated in the margin: Circuit Ct. of Cook County, Criminal Div. APPEAL from The Honorable James M. Obbish , Judge Presiding. the Circuit Ct. of Cook County, Chancery Div. Indicate if attorney represents APPELLANTS or APPELLEES and include attorneys of counsel. Indicate the word NONE if not represented. Attorney for Plaintiff-Appellant: Anita Alvarez, Cook County State’s Attorney (Chicago, IL) (Alan J. Spellberg, Ashley A. Romito, and Jessica R. Ball, Assistant State’s Attorneys, of Counsel) For APPELLANTS, John Doe, of Chicago.
For Attorneys for Defendant-Appellee: Law Offices of Thomas P. Needham (Chicago, IL) APPELLEES, Smith and Smith (Thomas P. Needham, of Counsel) of Chicago, Joseph Brown, Law Offices of William N. Fahy (Chicago, IL) (of Counsel) (William Fahy, of Counsel) Also add attorneys for Daly & Russell, LLC (Chicago, IL) third-party (Colleen R. Daly and Jennifer W. Russell, of Counsel) appellants or appellees.
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