ORDER DENYING WITHOUT PREJUDICE KATHERINE KEALOHA AND LOUIS KEALOHA'S MOTION TO SUPPRESS STATEMENTS AND EVIDENCE, ECF NO. 309

J. MICHAEL SEABRIGHT, Chief District Judge.

I. INTRODUCTION

On January 11, 2019, Defendants Katherine Kealoha and Louis Kealoha (collectively, "Kealohas") filed a Motion to Suppress Evidence and Statements, ECF No. 309 ("Motion to Suppress"), claiming that they made involuntary statements to the Honolulu Ethics Commission ("Commission") in violation of their Fifth Amendment privilege against self-incrimination. The Motion to Suppress is premised on Garrity v. New Jersey, 385 U.S. 493 (1967), holding that compelled statements made by a public employee secured through the threat of job loss cannot be used in a subsequent criminal proceeding. The United States filed its Response in Opposition on January 25, 2019. ECF No. 348. A hearing was held on February 11, 2019.

Because neither Katherine nor Louis Kealoha were compelled to make statements or forced to waive immunity in relation to those statements, the Motion to Suppress is DENIED.

II. DISCUSSION

"In a series of cases involving the Fifth Amendment rights of public employees, the Supreme Court has made clear that public employees cannot be compelled to choose between providing unprotected incriminating testimony or losing their jobs." Aguilera v. Baca, 510 F.3d 1161, 1171 (9th Cir. 2007).

Applying this general rule, Garrity found statements to be coercive when made by police officers given "[t]he choice . . . between self-incrimination or job forfeiture." 385 U.S. at 496. Before questioning began, the police officers in Garrity were each told "(1) that anything he said might be used against him in any state criminal proceeding; (2) that he had the privilege to refuse to answer if the disclosure would tend to incriminate him; but (3) that if he refused to answer he would be subject to removal from office." Id. at 494. No immunity was granted nor was an immunity statute applicable, and the police officers' statements (over their objections) were later used against them in a conspiracy prosecution. Id. at 495.

The Court suppressed the statements,1 reasoning that

Id. at 497-98 (citations, footnote, and editorial marks omitted); cf. Minnesota v. Murphy, 465 U.S. 420, 437 (1984) ("Unlike the police officers in [Garrity], [the defendant] was not expressly informed during the crucial meeting with his probation officer that an assertion of the privilege would result in the imposition of a penalty."). Accordingly, Garrity held 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. . . ." Id. at 500.

Although Garrity protects Fifth Amendment rights of public employees, "[t]he Court was careful, however, to preserve the right of a public employer to appropriately question an employee about matters relating to the employee's possible misconduct while on duty." Aguilera, 510 F.3d at 1171. For example, Gardner v. Broderick, 392 U.S. 273 (1968), stated that if the police officer in that case

Id. at 278 (citation and footnote omitted).

Applying this framework, Aguilera held that the Fifth Amendment privilege against self-incrimination was not violated when supervisors questioned sheriff deputies "about possible misconduct, given that the deputies were not compelled to answer the investigator's questions or to waive their immunity from self-incrimination. Indeed, it appears that the deputies were never even asked to waive their immunity." 510 F.3d at 1172.

Aguilera continued:

Id.

The Kealohas fail on two basic fronts. First, there is simply no evidence that Katherine or Louis Kealoha was compelled to make any statement to the Commission. In fact, they appear to have answered some questions, but not others. Second, there is a similar lack of evidence that either Kealoha was compelled (or even asked) to waive their immunity.

Apparently recognizing these weaknesses, the Kealohas argue that their statements to the Commission were not voluntary because they were subject to Hawaii Revised Statutes ("HRS") § 78-92 and the Revised Charter of the City & County of Honolulu ("RCH") § 11-106.3 They also essentially argue that Hawaii Rule of Professional Conduct 8.4(g)4 applies to Katherine Kealoha as an attorney. Id. at 3. But the only bearing such statutes, regulations, and rules have is whether "the fear of being discharged under [them] for refusal to answer on the one hand and the fear of self-incrimination on the other was a choice between the rock and the whirlpool which made the statements products of coercion in violation of the Fourteenth Amendment." Garrity, 385 U.S. at 496 (footnote and quotation marks omitted). The mere existence of these statutes, regulations, and rules without more is not enough to convert voluntary statements into coerced ones.

Further, the assertion by the Kealohas — that the Executive Director of the Commission at the time the statements were made was aware that HRS § 78-9 required employees of the State of Hawaii and the City and County of Honolulu to answer questions — is beside the point.5 See ECF No. 309-1 at 4 (citing Kealohas' Ex. A, ECF No. 337). This voluntariness inquiry must focus on what information was imparted to the Kealohas, and, in particular, whether they were required to waive their privilege against self-incrimination.

Finally, there is simply no evidence that the statements made by Katherine or Louis Kealoha to the Commission were involuntary. As the United States points out, the Kealohas' civil attorney sent a letter to the Commission on behalf of his clients that refused to answer some of the Commission's questions. See ECF No. 348 at 1-2; see, e.g., Def.'s Ex. D, ECF No. 337-3. Likewise, the Kealohas have presented no evidence that they either: (1) were threatened with losing their jobs if they refused to make a statement; or (2) thought that they would lose their jobs if they refused to make a statement.

III. CONCLUSION

For the foregoing reasons, Katherine Kealoha and Louis Kealoha's Motion to Suppress Statements and Evidence is DENIED without prejudice.6

IT IS SO ORDERED.