Statements and evidence against a former Nebraska State Patrol investigator accused of stealing six cases of ammunition from the patrol cannot be used against him at trial because of how police got the information, a judge has ruled.
Sarpy County Attorney Lee Polikov said his office is appealing recent back-to-back rulings in Christopher Kober's case.
At issue was whether statements Kober made as part of a State Patrol internal investigation, under the threat he could lose his job if he didn't cooperate, could be used against him in the criminal investigation despite being told they would not be.
Kober, 45, of Bellevue, had been a trooper for more than 20 years before he was arrested in May 2017 and charged with theft by receiving stolen property valued at over $5,000, a felony that carries a possible sentence of up to 20 years in prison.
Kober was dismissed from the patrol for internal discipline reasons June 14, 2017, according to a personnel change-in-status form.
Three months earlier, Kober's wife told Bellevue police she had seen an ammunition can at their home. A State Patrol internal investigation followed, in which she provided further allegations that he had boxes of ammunition, addressed to the State Patrol, and had moved them to Iowa.
Kober was asked to return them and did, according to court records.
But, by April 2017, a criminal investigation had started in addition to the internal affairs investigation, and Kober ended up charged.
At the time, his attorney, Clarence Mock, said Kober did take ammunition from the patrol's facility in Omaha, but that it was the regular practice of troopers to take ammunition "for personal use" and for "improving their skills."
As Kober's theft case slowly neared trial, the issue of so-called "Garrity warnings," most often seen in the realm of law enforcement internal investigations, emerged.
In an order Dec. 6, Sarpy County District Judge Nathan Cox said it is imperative that law enforcement agencies be able to conduct internal investigations quickly to determine if officers' actions were lawful or not, while at the same time protecting their constitutional Fifth Amendment rights.
"If potential officers were required to shed their constitutional rights upon entering law enforcement service, none would dare apply," he wrote. "On the other hand, if law enforcement agencies could take no action to internally investigate their own officers and terminate employment for unlawful acts until after a criminal trial had been held, the safety of the public would be put at risk."
For that reason, employers are allowed to ask narrowly tailored questions under a 1967 U.S. Supreme Court decision in Garrity v. New Jersey.
But, at hearings last month on whether to suppress the evidence, Kober's attorney argued that statements Kober made and the ammunition turned over as part of the internal affairs investigation should be suppressed because Kober had been told three times neither would be used against him in any criminal proceeding.
Cox agreed in a separate decision Friday, finding that the State Patrol internal investigator provided "virtually everything" in the internal affairs investigation case file to Bellevue police.
He said they had been "obtained under use immunity granted by NSP in its internal affairs investigation."
Cox said the internal investigation had become so intertwined with the criminal investigation that he was "unable to identify what, if any, evidence is not 'tainted' by the infusion of immune statements with other evidence."
The case likely couldn't go forward without the evidence.
Now, the Nebraska Court of Appeals will review Cox's rulings.
Kober is free on bond.