Court holds “independent” sources of information save investigation that also relied on statement compelled by probation agent

State v. Christopher T. Seiler, 2013AP1911-CR, District 2, 7/23/14 (not recommended for publication); case activity

Seiler’s compelled statement to his probation agent didn’t taint a subsequent police investigation that led to new charges because, the court of appeals holds, the police investigation was based on sources “independent” of his statements to the agent.

Seiler, on probation for child sexual assault, was arrested after he was found with N.F., a minor female, a violation of his probation rules. (¶3). He was placed on a hold and his agent took a statement from him, which was compelled (and also immunized) because he was required to account for his whereabouts or face revocation. (¶4). Seiler denied doing anything illegal with N.F., but said they were just talking about issues both were having with S.S., a co-worker of Seiler’s, and S.S.’s family. (¶5).

The agent didn’t believe Seiler, so she talked to the N.F.’s mother and S.S. (¶6). These conversations led the agent to believe Seiler may have sexually assaulted N.F., so the agent contacted police “to suggest there were grounds for further investigation of possible sexual contact between Seiler and N.F.” (¶7). The police then interviewed N.F., S.S., and Seiler, all of whom made statements that led to Seiler being charged. (¶7).

The court of appeals rejects Seiler’s claim that his immunized statement to his agent was used against him in violation of his Fifth Amendment privilege under Kastigar v. United States, 406 U. S. 441 (1972), because “the investigation that led to Seiler’s charge was based on sources independent of his statements to the agent.” (¶2).

¶13     … Seiler’s troubles started not because of any statements he was compelled to make but because he was discovered in a car with a minor, in violation of his probation rules, and in particularly suspicious circumstances—after dark, in a secluded place. The circumstances he put himself in gave rise to the suspicions against him.

¶14    There is nothing in the record to suggest that the agent shared anything in particular that Seiler said when she told the police she was suspicious about Seiler’s activities with N.F. In his statement to the agent, Seiler did not admit any sexual conduct or other criminal conduct, beyond violating his probation by being alone with N.F. in the car. The police already knew who N.F. was because she was found in the car with Seiler. Since she was a minor, it was inevitable that when she was taken into custody by police, her parents would then have police contact too. And S.S. contacted the agent himself because he wondered why Seiler missed work. The fact that Seiler mentioned S.S. in his unconvincing account of his whereabouts and activities did not somehow put S.S. off limits for investigators. S.S. was N.F.’s uncle and Seiler’s co-worker, so it was no great investigative leap for the agent or investigators to contact him about Seiler’s contact with N.F.

Two points. First, the legal standard. The court rejects Seiler’s claims “because the investigation that led to Seiler’s charge was based on sources independent of his statements to his agent.” (¶2). That is, even without Seiler’s compelled statement, the police knew about N.F. because she was with Seiler when he was arrested, and the agent knew about S.S. because he called the agent asking why Seiler wasn’t at work. (¶¶2, 3, 6).

But the question isn’t would the police have had that information even if Seiler hadn’t made a statement; instead, the question is did the compelled statements “lead to the discovery of incriminating evidence, even though the compelled statements, themselves, are not incriminating and are not introduced in evidence.” United States v. Hubbell, 530 U.S. 27, 37-38 (2000). That’s because “[t]he privilege afforded not only extends to answers that would in themselves support a conviction … but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute the claimant.” Id. at 38, quoting Hoffman v. United States, 341 U.S. 479, 486 (1951). Cf. Kastigar, 406 U.S. at 453 (“Immunity from the use of compelled testimony, as well as evidence derived directly and indirectly therefrom, … prohibits the prosecutorial authorities from using the compelled testimony in any respect, …”). Under this standard, it doesn’t matter whether incriminating evidence could or would have been obtained independently if it had not been derived from a compelled statement. State v. Harrell, 2008 WI App 37, ¶¶ 28-29, 308 Wis. 2d 166, 747 N.W.2d 770. Thus, Seiler’s compelled statement was “a link in the chain of evidence” if it was part of the information that his agent provided to the police.

Which brings us to the second point. The court really minimizes the alleged contact between the agent and the police. Seiler’s brief-in-chief (at 13) claims the probation agent didn’t just “contact the sheriff’s department to suggest there were grounds for further investigation” (¶7), but actually turned her information over to police. If so, that would be a strong link in the chain of evidence indeed. True, that has not been proven, but that’s because the circuit court denied Seiler an evidentiary hearing (which is what he’s appealing). (¶9). Maybe some higher court will give him his day in court.