*1 Wisconsin, Plaintiff-Respondent, State
v. Boggess, Defendant-Appellant. Calvin † Appeals
Court of No. 82-798-CR. Submitted on November 1, 1982. briefs Decided December 1982. (Also reported 878.) in 328 N.W.2d granted. Petition review † *2 appellant
For the the cause was on the submitted Hintze, public briefs of Donna L. assistant state defend- *3 er. by respondent
For the there was a Bronson La brief C. Follette, attorney general, O’Brien, and Daniel J. assis- attorney general, Maier, tant Michael law assisted clerk, department justice. Foley, Cane, P.J.,
Before Dean and JJ. CANE, Boggess appeals J. Calvin from three child abuse convictions. He to asserts that the evidence used entry convict him was obtained an unconstitutional Bog- into his home. Because the warrantless into gess’ investigate report jus- home a to child abuse rule, tified under the doctrine affirm. we Greg Benesh, County a for social worker the Oconto Department Services, anonymous of Social received an informing telephone call him that had L.S. and K.S. been battered and needed attention. caller medical stated that he with bruises on observed L.S. limping, body, and in also need of medical attention. He residing Boggess, stated that the who children were Boggesses he knew the temper, and that a bad had given immediately to information was fairly well. This duty. Ham- Because Hammel,1 worker on the social Joan temper, Boggess’ she had bad about mel was concerned Boggess accompany to the home. her McMahon officer Boggesses and stated herself to the Hammel identified safety and welfare ascertain that she wanted to department had received a tele- her the children because Boggess concerning their condition. asked phone call responded warrant, that under a and Hammell see al- not one.2 then did need children’s code she they observed the five- the house where lowed them into girl, boy, L.S., ten-year-old Hammel year-old K.S. missing. part lip pronounced of L.S.’s With- observed directing parent, either Hammel out get asked, happened? did he hurt?” How “[w]hat him. responded that he had fallen on transcript, In the Joan Hammel sometimes referred to under is Heroux. married name of Joni her Stats., provides 48.981, part: in Section (3) Procedures .... agencies. (b) Any person law Duties loeal 1. enforcement reporting suspected may neglect request or child abuse of a department investigation by police immediate or if the sheriff person safety has reason to believe that the child’s health or is danger. Upon receiving request, in immediate the sheriff such police immediately investigate department or shall to determine safety is if there reason to believe that the child’s health or danger any necessary protect immediate and take action child. *4 (c) county agencies. county agency Duties 1. The act shall of receipt in accordance s. 48.57. with Within 24 hours of of an the report suspected neglect, county agency initial of child abuse or appropriate thorough investigation shall commence an and to de- report termine whether the “indicated” or “unfounded.” complete investigation shall, possible, if include a to the visit place abode, child’s home or usual observation of the child and parents
an interview with the child’s or custodians. with in a bedroom examine L.S. Hammel continued living remaining Boggess in the present and mother revealing purple on undressed, bruises both room. L.S. thighs. His arms legs from the ankles to sides of his el- purple from the similarly bruises covered with were halfway up also had bruises the wrists and he bows to purple as all L.S. almost Hammel described his back. inflamed, lip dirty, His wound was from recent bruises. starting grow lip cleaning, and the and in need of limp” with “waddled improperly. walked He also missing also top his head. K.S. was hair from the had covering buttocks. purple her entire bruises observed bedroom, Boggess, taking with- into the Prior to L.S. rough got any I a little prompting, said “I will admit out And spanking I fell on him. I him and with him. was Hammel examined hurt himself.” When that’s how he living in the bedroom, McMahon remained in the L.S. any being Boggess, stated, asked without room with who give spankings, because questions, “I did him a few taking into pants.” Hammel K.S. Prior to he wets his any again prompting bedroom, Boggess without said just didn’t listen.” spanked “because she that he K.S. hospital immediately the children to a took Hammel parents photographs. The for medical examinations nor made, arrests were followed in their car. No interrogated. parents entry into the The trial court held emergency exception to the warrant home fell within suppress Ham- requirement the motions to and denied concerning testimony their obser- and McMahon’s mel’s photo- Boggess’ vations, statements, and the children’s subsequently en- hospital. graphs taken at agreement state, which reduced with the tered into charges complaint one count in the from the initial counts of mayhem to three and two counts of child abuse charges. pled guilty amended child abuse. He *5 314 facts appeal these on is whether under
The issue entry home at the warrantless and observations Kraimer, emergency exception. v. In State fall within the 306, (1980), 314, 568, 2d 298 N.W.2d 572 99 Wis. emergency follows: was defined as doctrine may private premises “Law enforcement officers enter preserve an a warrant to without either arrest or search assistance, property, first aid or to life or conduct a vided is to render and general crime, pro- inquiry an into unsolved grounds they that have to believe there reasonable urgent protective for such assistance and need investigation action, volving life, health, do not rest or search.” promptly in- or to launch criminal danger to either a threat of imminent substantial further, property, provided, or accompanying enter with intent to either ar- ultimate amendment standard under fourth entry light in the facts the reasonableness of the reasonableness circumstances of the case. The element of regard emergency supplied rule is compelling to the need to render immediate assistance safety occupants crime, of the victim of a or to insure reasonably them police when to be of a house believe 315, protection. Id. at 298 and in distress need at 572. N.W.2d 365, 1, Prober,
In State 2d 297 N.W.2d v. Wis. two-step (1980), supreme our a court established determining analysis applied be whether war when justified under the rantless is claimed to be therefore valid. doctrine is reasonable and actually per First, the officer be motivated must Second, a rea aid ceived need render or assistance. person would have under the circumstances sonable *6 analysis, the thought emergency Under this an existed. subjectively and exigency is tested both of the situation independent objectively. an examina- must We then make two-step the to ascertain if the of this case tion facts analysis is satisfied. emergency excep- the of whether determination
The requires the resolution applies therefore in this case tion McMahon ac- questions: (lj Hammel and Were of two or perceived render aid tually need to motivated confronting assistance, (2) the circumstances and and residence time entered the them at the a rea- of the children such that their made observations emergency person exist- have believed sonable would emergency ex- the to be valid under ed? For the questions af- ception, must be answered both of these firmatively. question question subjective of fact. The first is a
The ac Hammel and McMahon were trial court found that tually to render aid or assistance motivated an intent finding ap on be sustained to the children. That must great weight against and pellate it is review unless Kraimer, See 99 preponderance of the evidence. clear 319, A of the 2d at N.W.2d at 574. review Wis. finding. testified supports Hammel record the court’s going purpose home was related to that her safety, Her health, and the children. welfare of her at this actions the home also demonstrated that was only immediately the children purpose. examined She arrests, hospital. no to a The officer made and took them engaged no collected evidence interrogation, in no and of the children. than observations other Hammel’s a factual issue The second also involves analysis objective upon an of the circumstances whether including McMahon, na confronting Hammel information, reliability their it can be said ture supported by investigative rea was their conduct that emergency at existed. Id. that an sonable belief that The trial court found at N.W.2d 576-77. person lead a reasonable information received would Boggess argues emergency existed. to believe an reliable, anonymous and the informa call was not support a reason tion was not sufficient received disagree. emergency existed. that an We able belief knowledge that had test whether officer prob to believe it lead a reasonable officer would probable existed. This cause able *7 by requirement applied cir be reference to the must officer, including confronting the then the cumstances ambiguous prompt need for assessment of sometimes concerning potentially consequences. serious information required justification less factual than that neces This 324, sary support an arrest Id. at or formal search. at re 298 N.W.2d 577. When faced information informant, that from a citizen Wisconsin holds ceived reliability personal test for from a the shifts of reliability reliability. in A citizen to “observational” reliability formant’s must evaluated from nature be report, opportunity of his his hear and the matter see the extent to which it can verified reported, and be independent Doyle, police investigation. 96 an State v. 287, (1980). 272, 545, 2d 552 Wis. N.W.2d gave Here, specific his caller information based on children, observations an identifi- of which included location, description of cation the children their injuries, parents their an identification of the with whom personally acquainted, he was and a conclusion based upon injuries the nature of the observed that children readily needed attention. medical This information could investigation. independent be verified finding The trial court’s that these circumstances merited a reasonable belief that existed is supported by the evidence. It is reasonable for authori- ties with such information to render immediate assis- they tance to children who had reason to in believe were need of medical attention. We therefore conclude findings against great trial weight court’s are not preponderance clear of the evidence. We also con- that, independent clude based on our of the cir- review requirement cumstances, the constitutional of reason- ableness was satisfied.
STATEMENTS objects also to the admission of his statements made in presence. Hammel’s and argues McMahon’s He product illegal the statements were the of an search rights against and in violation self-incrimination and to assistance of counsel. The trial court held that volunteered these statements and that any interrogation. not the result agree. custodial We general questions When on-the-scene are asked that investigatory are accusatory, nature rather than Miranda rule apply. See Kraimer, 99 Wis. 2d not does Upon observing at lip N.W.2d at 579. L.S.’s *8 general injury, question hap Hammel asked a of what pened. parents The was directed to both accusatory. was not attempting Hammel was to deter injuries. Boggess’ mine the extent of L.S.’s other state response any ments were ques volunteered and not in to tioning. interrogated neither arrested nor his at Consequently,
home. circumstances, under the neither required Hammel nor McMahon were to advise of and Miranda did not rights, apply his constitutional they performing investigation because aof re- suppress emergency. failure trial court’s to ported The was not error. the statements Judgment By affirmed. the Court. — telephone from {dissenting). A call FOLEY, P.J. justify the war- anonymous sufficient to is not informant by government occupied of an home rantless too agent. could purpose the fourth amendment alleged anonymous I easily there- calls. be subverted regardless majority holding, agree fore with the cannot sym- my my disgust and his wife or for the defendant against society’s pathy balanced for the victims. When protection provided the fourth preserve the need to possi- even amendment, subordinate the court must responsibility for bility harm children. The of further anonymous law, any with the harm not with the but lies get informant who refused to involved. right be in McMahon had no Hammel and
Because statements, his heard the defendant’s home where not, suppressed. does should be This statements testifying. I also preclude the children from however, necessarily suppress the observations would not who, physical unlike other were made of children evidence, of the could move out home on their own every legally place they could be observed. As where pri- expectation parent knows, there no reasonable vacy young children.