Dear Members,                                          October 14, 1998

In the past year we have represented several members who have been investigated by Internal Affairs. In at least one of these investigations, Internal Affairs demanded to see cellular telephone bills, in order to obtain telephone numbers for incoming and outgoing calls. Each of you needs to be aware that, under current case law, it appears that Internal Affairs can make such a demand, and that if you refuse to comply with such a demand, you can be terminated.

In essence, demanding a copy of cellular telephone bills or telephone bills implicates the 4th Amendment in the same way that demanding an officer to answer incriminating questions implicates the 5th Amendment. As I am sure you are aware, the United States Supreme Court in Garrity v. New Jersey, 385 U.S. 493 (1967), and in subsequent cases, concluded that any statements made by a police officer under threat of termination could not be used in any subsequent criminal proceedings against the police officer. The police officer could, however, be fired for refusing to answer potentially incriminating questions concerning their official duties. In other words, a police officer cannot be required to surrender his 5th Amendment right to silence; however, having refused to answer questions, the police officer can be terminated. Furthermore, once a police officer is threatened with dismissal for failure to answer questions, any and all responses he makes to any question automatically becomes excludable from any criminal proceedings against him or her.

The North Carolina Supreme Court has also concluded that a police officer does no have to be told of his or her Garrity rights. In other words, you can be threatened with termination if you do not answer questions, but the Internal Affairs officer does not have to warn you that the statements cannot be used against you in any subsequent criminal proceeding. There is, stated differently, no Miranda-type warning required under these circumstances.

With all this background, it appears that the same analysis would be used in the 4th Amendment setting. If you are threatened with dismissal for not providing cellular telephone bills, telephone bills, or other documentary evidence, none of this information could be used against you in any subsequent criminal proceeding. You could, however, be terminated if you refuse to provide such information. Finally, the police department would not have to inform you of these rights prior to making a demand for the documents.

Although I have found no case precisely on the point with regard to this 4th Amendment issue, I do believe courts would analyze this issue in the same fashion it has analyzed the 5th Amendment issue with regard to forced statements. I therefore believe it would be very risky for an officer to refuse to provide such documents.