State v. Boggess

Plaintiff-Respondent, Wisconsin, State of Boggess, Defendant-Appellant-Petitioner. Calvin

Supreme Court No. 82-798-CR. Decided November Argued October 1983. ^[198] 3 .

(Also 516.) reported in 340 N.W.2d petitioner For the there argu- were briefs and oral by ment Donna L. Hintze, public assistant state de- fender.

For plaintiff-respondent argued the cause Daniel O’Brien, J. attorney general, assistant with Bron- son C. La Follette, attorney general.

WILLIAM A. BABLITCH, Boggess peti J. Calvin tions for published review of a decision of the court appeals1 affirming of judgment of conviction for three abuse, counts of contrary child 940.201, to sec. Stats.2 Boggess, State (Ct. Wis. 2d App. 328 N.W.2d 878 1982). 940.201, provides: Stats., Section “940.201 Abuse of children. Whoever tortures a child or sub- jects a child to cruel maltreatment, including, limited, but not to bruising, severe lacerations, bones, burns, fractured internal in- police a social worker’s and of contends entry purpose into his home for the warrantless ficer’s safety determining and welfare two children contrary seizure, an unreasonable search constituted Constitut amendment States to the fourth United I, Constitut article sec. 11 of the ion3 and Wisconsin all asserts that obtained as result ion.4 He evidence entry suppressed. be must totality We hold under circumstances case, a reasonable would have believed that an immediate need render there was aid or assistance physical to the children due actual or threatened in- jury, there was immediate need provide into the home to aid or assistance to them. Therefore, justified the warrantless was under the exception require- rule to the warrant ment. We affirm appeals. the decision of the court of juries any injury constituting great bodily or harm under s. 939.22(14), guilty felony. section, of a Class E In this ‘child’ person years age.” means a under 16 3 The Fourth Amendment to the United States Constitution provides: right people persons, “The houses, the to be secure their

papers, effects, against and seizures, unreasonable searches and violated, shall upon issue, prob- be and no Warrants shall but supported cause, able affirmation, particularly Oath or and describing place searched, things to be and the or be to seized.” provisions applicable of the fourth amendment are to the through states the Due Process Clause of the fourteenth amend- Mapp Ohio, ment. 643, 367 U.S. I, 11, Article sec. provides: of the Wisconsin Constitution right people “The of the persons, houses, to be secure their papers, against and effects unreasonable searches and seizures violated; shall not upon prob- be and no warrant shall issue but cause, supported by able affirmation, particularly oath or and describing place persons things to be searched and be seized.” Greg Benesh, a social February Friday, On County Department of Social the Oconto with worker anonymous telephone around call Services, received may have that children indicated The caller suppertime. attention. medical in need of were battered been names by their last children two identified The caller children, by the of the one, not both if (and at least Boggess, they lived with that name), and indicated first in Through information, the caller the defendant. than last names had different the children dicated that children, Boggess. indicated that one also The caller limping, bruises .5, because L.S may have further dam L.S., L.S. on the caller witnessed by a doctor. body checked age be to his should done Boggesses additionally that he knew the stated The caller temper. had a fairly bad well and Mr. ended, telephoned Immediately Benesh the call after employed by Hammel, social worker another Joan County Department of who was Social Services Oconto evening. relayed duty Benesh intake worker on had her information that caller Shortly thereafter, provided. Hammel met with Officer sergeant county. Douglas McMahon, for traffic Oconto going explained Hammel to McMahon that she was the town of Underhill to the residence Calvin health, safety because the and welfare of two children question. accompany were in her asked McMahon to She protection her because of the caller’s statement Boggess temper. had a bad

When Hammel and McMahon at the arrived residence, they went to the door and Hammel knocked. Boggess opened door, When Calvin Hammel identified agent McMahon, herself and and stated she was provided The caller the full first and last names of at least one, both, purposes decision, if not of the children. For of this only the initials of the children’s names will be used. department and that McMahon services the social Depart- County Traffic of the Oconto a member was they Boggess that the reason informed Hammel ment. safety and welfare of ascertain the was to were there agency had received tele- because her two children safety. concerning At children’s phone call warrant, to if had a point, asked Hammel she responded that she did not need one be- Hammell which a warrant is not . . Code “. Children’s cause necessary and McMahon minor children.”6 Hammel home. then entered the home, and Hammel went over to L.S. inside the

Once missing lip pronounced part of his that a saw was inflamed and needed be cleaned. the wound directing anyone particular, question Without get happened ?” asked, ? How did he hurt Hammel “What Boggess responded that had fallen on he L.S. Calvin Boggess stated, prompting, Later, had hurt him. without spanked had both children several times. that he Boggess present, Hammel examined L.S. With Janice thoroughly in a more rear bedroom. She observed legs of his he had bruises on both sides from the ankles thighs, and that his arms black and blue were halfway up from the to the elbows wrists his back. missing top also noticed that hair She L.S. had from the head, limp.” of his and that he walked with a “waddled Hammel then examined and observed bruises on K.S. body. her examining K.S.,

After Hammel finished Hammel and immediately McMahon took both children McMahon’s squad hospital. hospital, car to the nearest At the photographs children received medical examinations and of both children were taken. The Children’s Code is codified in ch. Stats.

448 abuse, charged child with two counts of

Boggess was Stats., may- 940.201, contrary and one count of to sec. Boggess contrary 940.21.7 filed motions hem, to sec. Hammel and Mc- made after suppress statements his residence, Hammel’s and McMahon’s his Mahon entered Boggess inside the K.S. made observations L.S. home, photographs taken at of the two children and the grounds motions, hospital. As these illegal product this was the of an contended that evidence search. then filed trial court denied the motions. The state

The charging against Boggess, him an amended information contrary 940.201, abuse, with three counts of child to sec. guilty charges pled Stats. the amended Boggess subsequently appealed was convicted. to the appeals, court of which affirmed the trial court. Code,

We note at the outset that the ch. Children’s Stats., expressly does not authorize warrantless authority into a home. Even if such could be inferred provisions provisions from the of ch. those cannot supersede provisions and do not in the United States prohibiting and Wisconsin Constitutions unreasonable searches and seizures.

Both the fourth amendment to the United States I, Constitution and article sec. 11 of the Wisconsin Con- proscribe stitution unreasonable searches and seizures.8 purpose prohibition safeguard basic is 7 940.21, Stats., provides: Section “Mayhem. Whoever, another, disfigure with intent to disable or tongue, eye, ear, nose, cuts or lip, mutilates limb or other bodily guilty another, felony.” member of of a B Class I, Because article sec. of the Wisconsin Constitution is substantially similar to the fourth amendment to the United recognized Constitution, States we have the standards principles surrounding generally appli the fourth are amendment cable to the I, Paszek, construction of article sec. 11. See State v. 619, 624, Wis. 2d 184 N.W.2d 836 against arbitrary security privacy of individuals by government Michigan officials. See v. invasions (1978). Tyler, 499, 436 504 The United U.S. States consistently Supreme held that Court has warrantless per searches are se unreasonable under the fourth amendment, subject carefully a to few delineated ex- ceptions. Cady 433, Dombrowski, (1973). v. 413 U.S. 439 exceptions “jealously carefully These have been drawn”, States, v. 493, Jones United 357 499 U.S. (1958), seeking and the burden with rests those ex- emption requirement prove from the warrant to that the exigencies imperative. Coolidge made that course Hampshire, New 403 455 U.S.

In case, entry Hammel’s and McMahon’s into the Boggess meaning residence was a search within the the fourth amendment to the United States Constitution I, and article sec. 11 of the Wisconsin Constitution.9 required A warrant was therefore for this intrusion justified unless it exception was under an to warrant requirement. If presented excep- the circumstances no tion requirement, to the warrant all evidence obtained entry as a result of the suppressed. search must be The asserts, state and the trial court and court of appeals agreed, warrantless this case 9 The fourth amendment to the United States Constitution is applicable involving upon privacy to situations intrusions interests by government upon officials. It is therefore a limitation government only. McDowell, (1921); See Burdeau v. 256 465 U.S. LaFave, Seizure, (1978). Although Search And sec. 1.6 at 110 a social -worker case, initiated the intrusion in this the fourth implicated. amendment previously noted, county agen is still As statutorily investigate cies are reports authorized to of child 48.981(3) abuse. See (c)1., sec. Stats. Hammel therefore was acting government as a official when she went to the residence. We sergeant, govern also note that a traffic who is a official, accompanied ment Hammel to the residence and entered the home with her. justified emergency under lawful it was because requirement. exception the warrant In State v.

rule (1972), ap- Pires, 2d we 55 Wis. N.W.2d exception proved rule an warrant as recognized requirement. that neither the fourth We amendment States nor the United Constitution governmental a bars official Wisconsin Constitution making from intrusion warrantless home when reasonably the official believes that a within is in need of immediate aid or assistance.10 rule de- government mands official’s actions be moti- solely by perceived vated need to render immediate assistance, aid or a need or desire to obtain evi- possible prosecution. dence for a 55 Wis. 2d at 604. exception requirement grounded This to the warrant is preservation on the notion that the of human life is paramount right privacy protected to the by of the fourth 345, amendment. v. Prober, State 98 2dWis. 363-64, 297 1 N.W.2d Prober,

In two-step analysis we a established for de- termining validity the of a warrantless search under the emergency rule: ‘‘First, the search searching is invalid unless the actually

officer by perceived motivated a need to render aid or Second, assistance. . . . until it can be 10 In our emergency discussion of the Prober, rule in State 98 Wis. 2d (1980), following N.W.2d 1 we cited the by statement Appeals People New York Court of v. Mitch ell, (N.Y. 1976) N.E.2d protection : “. . . the of property human life or danger in imminent must be the motiva tion for the search apprehend rather suspect than the desire to gather or proceeding.” evidence for use in a criminal Because this case does not entry involve a warrantless into a home for the protection property, of entry we need not decide whether such an justified could be emergency as within exception rule to the requirement. warrant person under the circumstances a reasonable found would emergency existed, thought an the search have 2d at is invalid.” 98 Wis. 365. test, subjective and the an test is a second is

The first objective test. tests must be satisfied before Both justified emergency warrantless will be under the exception. rule review, Boggess purposes

For of this does not chal- finding lenge the trial court’s that Hammel Mc- by perceived were Mahon motivated need to render subjective aid or assistance. The first test of analysis Prober is therefore satisfied. argues objective instead the second or analysis Prober two-step

test is not satisfied. totality He contends that under the con- circumstances fronting they Hammel and McMahon at the time entered Boggess residence, person a reasonable would emergency disagree. have an believed that existed. We ^[2] objective emergency

The requires test rule point specific that, officer be able facts taken reasonably with the facts, rational inferences from those warranted intrusion area in which a expectation privacy. has a reasonable require- grounds ment of reasonable to believe that an must, however, existed “. applied . . be reference confronting including then officer, circumstances prompt ambigu- the need for a assessment of sometimes ous concerning information potentially serious conse- quences.” State Kraimer, 306, 324, 99 2d 298 Wis. (1980), quoting N.W.2d 568 LaFave, 2 and Search Seizure, 6.6(a) (1970). sec. LaFave, See 2 and Search Seizure, (1978). sec. 6.6 at 468 prior upholding

Our entry cases a warrantless into a emergency home under exception generally rule have involved a set of common circumstances from we which person a could have reasonable believed

concluded Kraimer, emergency example, police existed. For in receiving entry a into a after made warrantless home anonymous telephone stated, three calls. The caller part, that he had shot and that he believed he had killed days earlier, his wife four four children were at his very him, upset. home with and he was We con objective cluded that under the Prober test of analysis, person a reasonable could have that an believed emergency Similarly, police Pires, existed. made a entry receiving police warrantless into a home after go dispatch radio to the defendant’s address because report supposedly of a body that there awas child’s dwelling. a semiconscious woman in the We held that entry dwelling justified their initial into the was under emergency See, also, rule. LaFournier v. State 91 (1979); Wis.2d Davidson, N.W.2d 746 State v. 2dWis. (1969), Hoyt, N.W.2d 755 State v. 284, 128 21 Wis. 2d N.W.2d 645 In both Kraimer Pires, case, as in this the common are circumstances the existence of indicating information an immediate need to render aid or person assistance ato due to actual or injury, threatened and an immediate need to enter an area in which there expectation reasonable privacy in provide order to that aid or assistance. objective

We hold that test of the rule when, is satisfied under totality circumstances, person a reasonable would have (1) believed that: there was an provide immediate need to aid or assistance to person due actual physical injury; threatened (2) that immediate into an person area in which a has a expectation reasonable privacy necessary provide in order to that aid or applying assistance. In analysis to the case, instant we conclude that under totality of circumstances, a reasonable would

453 Boggess within the resi- the children that have believed due need of aid or assistance in immediate were dence injury, there physical and actual or threatened provide the home to need for an immediate aid. asserting con the facts and circumstances In support fronting do not a reason Hammel and McMahon emergency existed, relies an able belief 457, 470, State, 2d in Bies v. 76 Wis. on our decision (1977). Bies, that an In we indicated 461 251 N.W.2d possessed anonymous telephone of even call was reliability”. also cites sev minimal “indicia of Supreme decisions that discuss eral United States Court reliability supplied known of information the use and anonymous parties traditional and third to establish probable an or cause to authorize issuance of arrest justify warrant, search or to a warrantless search See, Aguilar Texas, 114 e.g., arrest. v. 378 U.S. Spinelli (1969); ; States, (1964) v. United 410 393 U.S. Illinois, (1967) ; v. McCray v. Illinois 386 U.S. 300 Gates,-U.S.-, 2317 103 S. Ct. assessing reliability

In the value of information purposes provided by anonymous of es- informant tablishing probable a search traditional cause issue recently warrant, Supreme held the United Court States analyzed tip that an informant’s should be approach, “totality under a of the circumstances” which weights includes balanced assessment the relative reliability attending of all indicia of the information. Gates,-U.S. at-, at 2332. Prior S. Ct. issuing warrant, magistrate must make a com- given whether, decision be- mon-sense all circumstances him, including “veracity” fore “basis of knowl- edge” persons supplying hearsay information,11 there 1 1 Aguilar Spinelli Texas, (1964), v. In 378 U.S. 108 States, Supreme (1969), United U.S. the United States probability a that evidence of a crime will is fair be place. at-, particular found in a -U.S. 103 S. Ct. reliability determining overall an at In of 2332. “totality tip, informer’s of circumstances” deficiency demonstrating approach permits a in indicia veracity by compensated strong a informer’s to be for showing concerning knowledge, the informer’s basis of reliability.12 other a Id. at or some indicia of See 2329. guidelines concerning quantum oí Court evidence established magistrate present probable that an must to a to officer establish upon hearsay a cause to authorize issuance of warrant based Aguilar information. The decision in resulted in what is com- monly equally “two-prong” test, appli- to referred as a which is they probable police cable claim when make a war- had cause to knowledge” rantless or arrest search. Under the first or of “basis prong, permit magistrate facts must be revealed that to deter- allegation mine whether an informant had basis for his been, was, certain had would be in involved criminal conduct or that evidence of a crime would be at a certain found place. “veracity” requires prong pre- The second or facts be magistrate sented to the to enable him to determine either credibility reliability inherent informant’s or the his of informa- particular LaFave, tion on that occasion. See 1 And Search

Seizure, sec. at 3.3 501-02 - Gates, -, In (1983), Illinois v. U.S. Ct. S. guidelines Aguilar court held that while the set forth in Spinelli assessing reliability are still relevant third party cause, they probable information to determine traditional are separate independent to be considered as elements subject rigid application. Rather, they among to a are the rele- vant “totality considerations to be in a assessed of circumstances” analysis, controlling analysis which the court indicated was the determining probable whether there is cause issue a search based, part, upon warrant tip. an informant’s Gates, In Illinois : court noted “. . unquestionably . if an honest citizen comes forward with a report activity subject criminal if fabricated would him —which liability rigorous scrutiny criminal have found of the basis —we knowledge of his unnecessary Conversely, .... if we even enter- analysis in Although “totality of circumstances” involving the traditional applies situations Gates determination, to an it also relevant probable cause be- person would have analysis a reasonable whether circumstances, totality there lieved, under the aid or assistance due need to render an immediate was injury, physical and that im- threatened to actual or totality necessary. The of circum- mediate must, however, within be evaluated in this stances case emergency situation, which, possible the context of a by very nature, potentially conse- involves serious its taken, quences and neces- if immediate action is not sarily prompt of the information demands assessment that is available. Supreme Gates, noted in

As the United States Court anonymous veracity persons supplying the informa- by largely is, hypothesis, tion unknown and unknowable. necessarily however, mean, That Id. at 2332. does not person provided that the information must auto- the matically must as- be discredited. The information be totality circum- sessed under the of circumstances. Such may presence stances include the of detail the in- formation, and corroboration of details of an informant’s tip by independent police id. work. See at 2335-36. provides Detail that an informer is evidence that the manner re- which he obtained his information was liable, recipient and it enables the of the information relying something that he conclude on more than gen- person’s casual rumor or an based on a accusation reputation. Spinelli. addition, eral See In corroboration of details contained in the information reduces explicit motives, tain some doubt as to the informant’s his description alleged along wrongdoing, detailed with a state- tip firsthand, ment that the event was observed entitles his greater weight might than otherwise be the Ct at case.” S 2329-30. prevaricating Gates, tale.” a “reckless See chances of at S. Ct. 2334. Bies, case, caller in In unlike who vague provided only there statement was noise general garage, in the area the defendant’s provided who called detailed information. Benesh The by (and caller children last names at identified two their by one, name), of the children, least if first both gave Boggess’ name, last and indicated this that Boggess. children had different last names than generalized simply caller did not make a statement specifically the children had been but abused indicated limping. L.S. had bruises and was The caller also Boggesses fairly well, indicated knew that he temper. that Calvin had a bad The detail provided speaking indicates the caller was from personal knowledge merely repeating and not an idle rumor. The caller’s statements that he witnessed bruises Boggesses on fairly L.S. and knew that he well also knowledge, reflects his basis of and indicates that he in all likelihood obtained his personal information from observation, gossip not from or rumor.

In addition, prior entering residence, Boggess Hammel they to indicated that were there to investigate safety and welfare of the children. The Boggess fact that it was who answered the door of the residence to which Hammel went, and McMahon and Boggess that deny did not that children lived there but instead asked Hammel warrant, if provided she had a corroboration portions for at least of the information provided the caller had Although to Benesh. corroborated facts were details, “innocent” and not de- concerning tails whether abuse had occurred or was occurring, Supreme United States recog- Court has “[bjecause nized that right an informant is about some

457 right probably about other facts.” things, he is more Spinelli 2335, quoting at-, at 103 S. Ct. Gates,-U.S. concurring). (White, J., States, 393 U.S. at v. United “totality in thus con- circumstances” this case The Friday evening by a provided on information sists of emergency concerning potential caller aid or assistance requiring immediate medical situation injured contained several The information children. indicating had the in- the caller obtained details parti- firsthand, Hammel and McMahon formation and provided informa- ally details in the corroborated certain entry Boggess prior residence. tion to their into the Any deficiency veracity in the the caller due to his anonymity specific compensated by was both provided caller detail contained in the information the portions the corroboration of of that information. Gates, at therefore conclude See Ct. 2329. We S. totality case, that under the circumstances person reasonable that a would have believed situation requiring existed an immediate need for aid or assis- physical injury tance due to actual or threatened children.

We also that a conclude reasonable would have necessary believed that immediate to render aid assistance to the children. The indicated caller may two at have children residence been battered and needed attention. caller medical The limping, also indicated one of the children was temper. that Calvin had a bad applies rule there a need to situations which injury. render aid and assistance and See avoid serious Kraimer, 314; Wayne States, 2d at Wis. v. United 205, (D.C. Burger, J.) F.2d 1963) (opinion Cir. confronting The situation Hammel and McMahon involved home, small children inside who are less able harm protect from further or to inde- themselves

pendently attention than are adults. The seek medical limping information that one of children was indi- potential need for that to receive cates child immediate addition, physical In medical attention. if the even prior already had occurred to the time the caller abuse Benesh, Boggess contacted the information that Calvin temper possibility had a bad created that the children subjected any time, would be further at abuse which injury could have resulted in serious or even death. We only do not believe that a situation must involve life-or- death emergency circumstances order to constitute an emergency within totality rule. Under the of circum- case, stances in a reasonable could have only believed not there was an immediate need to render aid or assistance to the children at the residence, entry but also that the need for into the home objective immediate. Both elements of the test were thereforé met. entry

Because the warrantless into the resi- justified dence was under the exception, rule was reasonable and lawful. The evidence ob- pursuant tained entry, was, therefore, not the product illegal of an search, and the properly trial court denied suppress. the motions to

By the Court. —The decision of appeals the court of is affirmed.

DAY, (concurring). agree J. I majority with the opinion and write I because important believe it is go unchallenged. dissent not

On 26, 1983, nationally November syndicated colum- published nist saying an article1 that child abuse: .“. . crimes, against worst of the most de- fenseless of victims. ... In 885,000 1981 there were Journal, Wisconsin State 3, page November section 4. many abuse, in 1976. child twice as as reported cases of year 5,000 their Every die at the hands of children agencies [H]ospitals, parents. police, . social . . ever-vigilant. Anyone must who groups be volunteer obligation suspects report it. has an When child abuse you way you co-conspirator a in look the other become the crime.” these children killed

Had one or both of been because seeing social worker failed to insist on them after receiving agency the information this had received one imagine outrage disgust can well the waves of through community swept would have the because of the social worker’s failure to act. points wrong up in

Such scenario how the dissent is interpretation application prin- its of the of well settled ciples of law. important

It keep this case to mind that the anonymous caller to the social service staff named the abuser, children and their related that the had children day before,2 been child, abused the related that one on following day, the normally, was still walk unable to attention, the children needed medical and related temper. the abuser had a bad worker social having justified absolutely this information was in in- sisting seeing entering on these children and in the home without a warrant.

The need for children, medical attention the caused by beating by stepfather administered the mentioned by “anonymous” the (the caller, caller turned out to be grandfather) true; children’s turned out to be mention of bruises on the of the bodies children turned true; out to limping boy be the mentioned of the caused by beatings true; he had received turned out to be temper the bad by of their tormentor mentioned caller turned out by to be true. What wasn’t mentioned

2 Affidavit of Joni complaint. Hammel on the criminal boy’s part the little caller was that inflamed, dirty and away lip torn and the wound jerked patch out hair had been inch of his that a three boy by the little The record shows his tormentor. old; Clearly years ten. was five his sister entry into play before the called into doctrine had been by verified worker and was the house the social facts, In face of these the dis- condition. children’s the social worker should sent would have us hold reported plight turned on the children’s have her back their attacker if had a warrant! when asked she family autonomy The further tells us we “value dissent privacy (Dissent, p. and the sanctum of the home.” 462). just home, But the not it was the abuser’s house they a also the home of these two had children right right- protection help this social worker to gave fully being them in Far to this case. from “sanc- tum,” the house had more the characteristics of a torture chamber for these unfortunate children. house was This hardly physical “the source and emotional ... se- curity” (Dissent, p. 462). to which the dissent alludes. credit, house, To her the social worker entered this saw the battered them condition these children and took to hospital they where could the needed medical receive protection. attention and supported position

The dissent brushes aside the well majority clearly of the this is a case where the applies, authorizing entry doctrine thus dwelling without a warrant. worker, But the dissent Hammel, claims Ms. social stepfather’s right” against violated the “constitutional by coming “unreasonable search and seizure” to the rescue of these children. The dissent tells us: “This case involves the delicate balance of cher- two protecting ished protecting values: our children and family by government from agents.” coercive intervention were in the balance “These values when the social County Department worker for Oconto of Social Services responded anonymous report to about children who might protection.” (Dissent, p. 463). need “delicate What is balance” to which the dissent key refers? The word “unreasonable” searches and founding seizures. The fathers left us with the means protect tyranny they from ourselves but defined it in They of human terms reasonableness. did not direct or place authorize us substitute in its some fanciful of what definition is reasonable. The failure to consider the nature of “unreasonable search and seizure” has tip balance,” the dissent led to a decision to the “delicate child-victims, in favor of the but in favor their tormentor! soaring rhetoric that stirs the hearts of lovers of

liberty exalting protections the constitutional which jack-booted fend off the king soldiers of the about break down the pamphlets cotter’s door in search of de- nouncing king’s tyranny somehow a cari- becomes cature, farce, person knocking when the at the door is investigating a social worker a detailed and well-founded complaint against of terrible helpless abuse two children. To so trivialize the mockery constitution tois make a of great protect rights document. The dissent doesn’t rights —it seeks to create where none exist. age

The enlightenment, of of which our constitution truly great is one of the ornaments, exalted the role of human quest reason in man’s “life, liberty for and the pursuit happiness.” of Contemporary iconography greatest showed this of human attributes as a beautiful goddess. To thought rob change reason of rational tois her to a reducing hag, object shriveled her from an of adoration to one of contempt. derision and

We permit Rights should not the Bill of to be twisted into becoming Wrongs” a “Bill of perception in the of our civil protecting shield The of crime. the victims to hide into a cloak refabricated not be should liberties in this case. abuser protect the child and dissent, case this Contrary to the assertion (Dissent, guidelines.” a need not “demonstrate does de- contrary. settled Quite Here the well 474). p. case met. Each were doctrine of the mands of facts necessity fall own set on its stand must of light court has weighed standards and be set. grant motion the defendant’s

The would dissent gathered fol- worker suppress the social the evidence would not and lowing the children’s home her trial. in the defendant’s permit evidence to be used such majority. disagrees. agree majority I with The G. that Justices WILLIAM I am authorized to state concurring join in this and J. CECI CALLOW LOUIS opinion. ABRAHAMSON, (dissenting). J. S.

SHIRLEY urgent gravity protect- need for of child abuse and the ing are our its cannot be overstated. Children victims legacy they hope, themselves valuable to as and our as us centrality are children in our lives vulnerable. The recognition sanctity growing indi- and the their as governments viduals have chil- mandated that shield vulnerability. exploitation dren from of their society recognize At the same time that our law and right protection, a child’s law and need for our society autonomy family privacy value and the sanc- family primary tum of the home. The unit of organization, physi- social the source of the individual’s security. recognize princi- cal and emotional these We ples according the con- individual federal and state protection process protec- stitutional of due of law tion pur- from unreasonable seizures. The searches and not, underlying protections constitutional these is as pose mistakenly protect perceived, to criminals but often it is governmental everyday the intrusion into to minimize ordinary To extent court of this lives citizens. rights of the encroachment of the constitutional allows rights all. accused, encroachment it allows on We strengthen tools, law enforcement but we can- need to justify practices to otherwise fail that would meet not constitutional standards.

This the delicate case involves balance two cher- protecting protecting ished values: our children and family by government from coercive intervention agents.1

These values were in the balance when social worker County for the Department Oconto Social Services responded to an report children about who might protection. years later, need More than two this court, sitting away, 150 miles her reviews course of action in proceeding the context of protect to children rather prose- but in the context of a criminal cution. It was the actions, not defendant’s the social brought worker’s that beyond case before Yet us. significance of this case the defendant, to Calvin significance Boggess, lies its to the workers social upon other officials imposed whom the law has the awe- 1 The state’s concern with family both the abused child and the clearly expressed is as Neglect follows in the Child Abuse Act: purpose “It protect of this act the health and welfare by encouraging reporting of children suspected child abuse neglect and child in a appropriate manner which assures protective provided neglected services will be abused chil- appropriate dren and that services be will offered to families of neglected abused protect children order such children promote from well-being further harm and to of the child setting, his possible.” her home whenever Ch. Laws sec. of 1977. aiding children and and protecting responsibility of

some families. worker the social not whether in case is

The issue investigating report. did the She promptly erred by carrying her she issue is whether erred err. consent, without a investigation home into the without checking into the re- warrant, and without investigate duty to port. This distinction between power to enter a home child reports of abuse and all only is an certain circumstances consent under without important one. government agree majority a official

I with the a may without war- enter home without consent and a “emergency” rule, to examine children under rant totality if, circumstances, of the offi- is, under the cial, home, entry time of into the has reasonable at the grounds “(1) there immediate to believe that was an provide person aid assistance a due to need to injury; (2) physical im- actual or threatened entry mediate an area in which a has a into expectation necessary privacy reasonable of order 453; provide Supra, pp. 452, that aid or assistance.” p supra, Clearly see also must 445. state be em- powered quickly to act there when is a true imperiling safety welfare a child. any report matter,

While of child a critical abuse is government entry purposes the home an emer- gency, majority explains, as the means immediate provide physical need to actual or aid for threatened injury immediately and a need pro- to enter the home vide that aid.

In danger the absence of immediate to the child the government may not enter official the home without either consent or country a In warrant. our a warrant- government less pre- home official Payton, sumed 573, York, unreasonable. v. New 445 U.S. State, (1980) ; 2d 585-86 Laasch Wis.

267 N.W.2d 278 danger, police When child is in immediate no county investigate agency must nevertheless report promptly abuse of the child hours —within report. 48.981(1) (3), 1981-82.2 Sec. Stats. majority part “emergency

1 the it with finds when the applicable doctrine” case. I from conclude the prove record that the state did not it the must —that —as worker, upon entry social home, into the had reasonable grounds to believe that an State existed. Taylor, 506, 519, 2dWis. 210 N.W.2d 873 validity entry of by knowledge The the cannot be colored occurring subsequent entry obtained or events the complaint the The criminal home. and other documents in the record contain information not to the social available hindsight worker when she the home. If entered is test, protected the government’s no one of us is from the entry by into our court is rec- homes. This bound the setting ord forth known to worker the facts the social home, at the of time into the and this record is meager. may deficiency This in the record have been prosecutor, caused the informant or the social police, requested, if The must conduct an “immediate” inves tigation “to determine if there is reason believe that the child’s safety danger”. 48.981(3) (b)l. health or is immediate Sec. required “upon receipt report is social worker of an initial suspected neglect appropriate child abuse or ... to commence an thorough investigation report to determine whether complete investigation shall, ‘indicated’ or ‘unfounded.’ The if ;possible, place abode, include a visit to the child’s home or usual observation of the child and an interview with the child and the parents 48.981(3) (c)l. (Emphasis child’s or custodians.” Sec. added.) finding reports “A ‘indicated’ child abuse shall be supported by preponderance evidence available agency; required . . . Whenever there is less than the standard of indicating neglect, report evidence child be classi abuse shall fied 48.981(3) (c)3. as unfounded.” See. purposes review, of this it But for the makes

workers. no difference. important so is so brief —I shall the record Since —and margin 3)3 (note testimony the entire in the

set forth anonymous telephone testimony describing the entire Benesh’s call was as follows: concerning possible “Q. you abuse a call child Did receive February approximately 6, 1981? around 5:00 o’clock or so on during date, I “A. I do know it was believe that’s supper yes. hour, “Q. you And do remember the substance of that call? person “A. I a call that stated that who received Yes. may belief that children have been called had reasonable some battered, and that were in need of medical attention. “Q. person identify were, Did the who the children and the residence? Yes, “A. he did. “Q. During that call did the indicate that was a there possible dangerous situation there? “A. Yes. “Q. Okay. How he What that? did state that? just “A. The caller felt that because of bruises the caller that person may witnessed on the him indicated to that he [L.S.] damage body have further done to his be and that he should by checked out a doctor. I he time believe also indicated at that limping. that [L.S.] “Q. Okay. any Did the caller about indicate concern the nature Boggess? of Calvin Boggess The caller “A. informed me that Mr. has a bad tem- per, may upset coming be about someone to his in that house regard. “Q. fairly Boggesses Did the caller that indicate he knew the well? Yes, “A. he did. “Q. you Did relate information then Hammel? to Joni Yes, “A. I did. “Q. Benesh, approximately you Mr. Hammel when did call Joni evening ? immediately talking I “A. called her after I with the finished caller who called me. telephone anonymous call and the information about the at the time of the social worker available to why you “Q. go did not out to the Is there reason day? yourself day, or the next home rotating Yes, we have a for social “A. because basis workers paid basis, that nature to be on call. It is a and therefore calls of evening. So, I are to be handled whoever is on intake that related toit the intake worker. “Q. you You testified that the caller informed chil- these may dren inbe need of some medical care. Did the caller advise opinion problem? as to his or her as what to caused the say thought “A. believe he did that he I it was a result of a

heating. “Q. any you just Did the caller have information for as beating may place? when this have taken No, “A. he did not. “Q. Benesh, long you your present Mr. how have worked in position County? in Oconto years. “A. Over four “Q. policy your department any allegations Is it the to check of child abuse within 24 hours of a call? Yes, go immediately “A. it is. And most times we on those calls.” pp. (tr., 40-43) testimony describing Hammel’s entire telephone her conference Benesh, description with telephone her of Benesh’s call McMahon, and her statement to McMahon and the defendant of purpose entering

her residence is as follows: “Q. you And did approximately oh, receive a call at around 5:00, p.m. February 6, 5:30 on 1981? Yes, “A. I did. “Q. And what was the substance of that call ? “A. The call was from depart- another social worker from our phone ment. And he received a call from a who wished remain likely two minor children were most care, need of get medical and that the intake worker should out there and look at those children. “Q. you explain And did purpose to Officer McMahon the your meeting him there ? including testimony home, Benesh, worker social Hammel, call; worker of social to whom received the

who phone explained him that I had received call I “A. possibly, safety, and or welfare two children was in the health going. question, were that is where we you Boggess “Q. go to the residence ? Then did Yes, “A. we did. “Q. Okay. you happened And when arrived at the home what ? “A. we arrived at the home we went to the To me When door. myself. it like the door. It was both the officer and seemed back front, I in the and I knocked on the door. Mr. an- my name, worked, I stated swered the door. where I for, safety children, reason I was there to see the possibly the welfare of their in condition condition was [sic]. phoned That someone had us. And he asked for warrant at that time. “Q. Mr. did ? Yes, “A. he did. “Q. Okay. And— explained “A. And I to him that the Children’s Code a necessary warrant is not for minor children. “Q. you got home, you' Once into the did who observe residence? Boggess, Boggess, “A. Mr. Mrs. and two minor children. “Q. you quite frequently evening? Do work every “A. I work once sixth week as an intake worker. “Q. you So, duty evening? were on Yes, “A. I was. “Q. you duty day Were on the next ? Saturday, yes, “A. I was. “Q. any special why you Was there reason went to the house night opposed waiting day? as until the next job requires go “A. Our us to when we are called. “Q. you required go many, Are out to a home within so hours getting involving alleged after any a call child abuse? Is there policy on that? Yes, “A. “Q. there is. In the Children’s Code. policy And what is the ? “A. I believe it is 24 phone hours. Within hours of the call. sure, I though.” am not (tr. pp. 20-36) call; and of traffic officer Mc-

Benesh described accompanied Boggess Mahon, Hammel to the home. who testimony telephone Benesh’s reveals that caller convey did of immediate need aid or sense related, according entry. Benesh, caller may caller “had belief that some reasonable children testimony describing meeting Officer McMahon’s entire his with Ms. Hammel and their into the home is follows: as Yancy’s “A. I met ... Miss Hammel at And at Restaurant. explained going that time she to me she was out into the Town of Boggess Underhill to a Calvin residence on to check the welfare complaint two children. And from the said she if she. received custody might Boggess she were to take of the children Mr. temper, something, go along have a wicked and she asked me to protection custody. for her own if she did take the children into “Q. you proceeded Boggess So then to the residence? correct, “A. That is sir. “Q. you up And went to the ? front the house up door, “A. We went to the which is on the west side of the house, and Miss Hammell knocked on door. “Q. Okay. opened you And who the door? Do remember? I opened “A. “Q. don’t recall which one the door. present Who at the residence? “A. Boggess, Mr. Calvin his wife and two minor children. “Q. Okay. Now, you up you there, identify when were did yourselves? “A. Miss agent Hammel identified herself as of the Social Services Department, County and me' as a member of the Oconto Department. Traffic “Q. you And did obtain entrance into the residence?

“A. Yes.

“Q. Okay. you say anything point Did at that ? “A. No. Miss Hammel stated the we reason that were there. “Q. Okay. What was the ? reason To “A. cheek on the welfare of two minor children. “Q. Okay. you got residence, Once you who did ob- you serve? Did observe more than Mr. and Mrs. Boggess? I “A. observed two minor children. A male and a female.” (tr. pp. 4-5)

470. [sic] an unstated time] have been [at battered medical attention.” were need of attorney’s de- agrees district to the Benesh While dangerous possible “a indicated scription the caller that attorney’s question answering district situation,” the responded: statement, Benesh the caller’s to describe be . should just . . felt that [the children] “the caller Despite caller’s cautious by the a doctor.” checked on investigation. But a for an language, is clear there basis social issue whether the The is the this is not issue. grounds inves- further without worker had reasonable entry tigation and immediate immediate aid believe necessary. the home of were they testified that treated

Benesh and Hammel reports way they of report that treated all in the same They and responded promptly. At most two child abuse. report the three-quarters elapsed the and hours between lapse entry hours of home. of more than two the The explained, if this an inves- was not and need be was tigation lapse unexplained But time under sec. that 48.98. needed that two children is not consistent with a belief entry way in the home. by aid of immediate immediate arguendo Assuming there caller had the asserted entry, question an aid immediate need for remains, majority explains, whether the infor as the provided by anonymous suffi mation informant ciently trustworthy government to authorize a official’s entry nonconsensual of the house. The federal and state require constitutions before the some assurance given information such official action is based on by an the infor honest credible who obtained Aguilar Texas, v. way. mation 108 378 U.S. in a reliable (1964); Spinelli States, v. (1969); 393 U.S. 410 United - Gates,-U.S. Illinois v. (1983).5 S. Ct. 2317 magistrate of some the under 4 “[T]he must be informed of lying circumstances which the informant from concluded report presumably reliable Police officers information. Anonymous enjoy presumption do not a of informants reliability.6 majority explains, As the in- they knowledge], were he nareotics where claimed were of [basis underlying of some circumstances from which the officer . . concluded informant . was ‘credible’ or his informa- Aguilar [veracity].” Texas, tion v. ‘reliable’ at 114. U.S. opinion today’s majority acknowledge The Gates both vitality totality Although continued of these concerns. under the promulgated Gates, deficiency test circumstances in one may prong compensated strong showing be in the other necessary prong, require supporting it seems some threshold veracity knowledge allowing facts toas both and basis of before proficiency prong compensate deficiency of one for the

the other. 5 While Illinois Gates retains the need to show the inform veracity, reliability, ant’s knowledge, adopted and basis of it also “totality analysis. forthcoming circumstances” pocket part to Professor LaFave’s Search and Seizure treatise on comments Gates as follows: “ writing ‘Gates does not mean that lower are courts on completely they question clean slate when now confront the of [tip] probable whether an informant’s amounts to cause. Even majority agreed the bility’ ‘veracity,’ Gates “that informant’s ‘relia- knowledge’ highly and ‘basis of are all relevant in deter- mining report.” so, the value of his Because this is is it to be hoped place that the will courts continue to considerable reliance upon the elaboration of these factors in earlier decided cases ” Aguilar Quoted under the now-discarded formula.’ at 52 L.W. (1983). reasoning Some of the in Gates leads the one believe Gates cases; parts decision is limited to warrant other of the opinion Gates lead one apply to believe that the Court would opinion, decision, Gates in nonwarrant situations. The Gates 5-4 open interpretations. report is to several of See the Professor Kamisar’s discussion of Gates at 52 L.W. 2229-30 suggested One commentator has informants presumptively Anony should Comment, be treated as unreliable. Tips, mous Reconciling Corroboration and the Probable Cause: Spinelli/Draper Dichotomy Gates, in L. Illinois 20 Am. Crim. 99,107 (1982). Rev. supply, rea- however, the basis for can, report formant’s in- the information if in an sonable belief the inform- government official of apprises the cluded concluding abuse emer- child there was for ant’s basis knowledge” prong) and the social gency (the “basis believing is informant the has a basis worker veracity prong). (the credible record, deficiency the the cause the

Whatever very by workers had the social report the described as with- refer to “bruises” but did The caller little detail. they were describing extent or when location or out the the said believed” caller Benesh testified “he inflicted. nothing limping. apparently said The caller a child was apparently of the second child about the condition give ages not The caller did did the of the children. not divulge eyewitness got he his claim be an how Benesh was never asked whether he information. pressed more details or whether the caller the caller for unwilling supply majority or unable them. significance attributes to the inference it derives from by the record that the caller identified two children their children, (and one, the last names at least if not both of indicating name), children’s names the first the simply were different from the defendant’s. This enough. sufficiently report

Since “details” are not “self-verifying,” report extensive to be and of it- “trustworthy” totality pass self cannot test under majority opinion the circumstances. Indeed report. stresses the corroboration of details of by government Independent corroboration officials trustworthy. report could make the court and the This Supreme “consistently recog- United States Court have nized the value of corroboration details of an in- Anonymity encouraged dangers is not because of obvious the report willing responsibility. for which no one is to take by independent police Illinois v. tip work.” formant’s Ct.-,- Gates,-U.S.-,-,-S. undertaken in this independent only corroboration

The the McMahon went to Hammel and when case occurred they name and the There verified home. defendant’s anonymous inform- reported apparently the address there neither nor admitted ant. defendant denied children, presence of in the home. The were children names, physical were not cor- their condition their the home. until after the worker entered roborated social may of “innocent details” increase Corroboration allegations in the probability that the uncorroborated assuming, report are true. But even as deny majority does, that a that children lived failure admission, there of an what little cor- rises to the level roboration existed here was not sufficient buttress veracity anonymously reliability communi- cated information. two-plus telephone

In the between the call hours home, effort was made to corrobo- no emergency. rate the facts of a child abuse Oconto is county population approximately 29,000; small with a evening Friday it was a and the defendant lived “out in county.” may Some of made these factors have information-gathering an easier task and others a harder task, telephone family members, neighbors, but calls to clinics, hospitals, office, police departments, the sheriff’s might yielded or school officials information have about family agency the children or did not situation. The any check its own files to whether it had had determine prior may family. contact with the These sources have verified that an existed at the residence, certainly they provided but almost have could some probability information about the of one. gov- allows, expect

When time it is reasonable to gain ernment official to make an effort some assur- 474 anonymously communicated of of the truthfulness

anee entering on the justify home. Statistics information subject reporting that such abuse demonstrate of child is, at the same is essential. There one and verification time, overreporting extensive of unfounded child abuse nonreporting child Besha and serious of actual abuse. rov, Problems, Progress, Protection: Past Present Child L.Q. Family Directions, 151, and Future 161-63 17 only percent reports In made 1978 30 of of child abuse anonymously requirement were found to be valid.7 The that officials make effort some substantitate anonymous reports entering of trustworthiness before get home when there is time to the information works significant hardship. Anonymous no informants are reports neglect: minor of source of child abuse and in 1978, they only percent constituted of re- 5.7 all such ports nationally.8 In reports 1982 accounted percent reports for 9.8 of all In 1982 Wisconsin.9 county investigated apparently reports Oconto 12 a total of neglect.10 recognize of child abuse child I may frequently subject social pres- worker be to severe swiftly ambiguous sures to act on This information. case, however, present does not such a situation. guidelines

This case demonstrates the need for to aid those respond reports who must of child so that abuse 7 Besharov, Legal Aspects Reporting Known and Sus pected Neglect, (1978), Child Abusei and 23 Vill. L. Rev. 470 citing Neglect, file data of National Center on Child Abuse and Department Health, Education and Welfare. Depart U.S. National Center Neglect, on Child Abuse and Analysis ment of Health and Services, Human National Offi Neglect cial Reporting Child p. and Abuse 19. Department Services, Wisconsin of Health and Social Division Community Services, Report Annual to the Governor and Legislature on Neglect Act, p the Wisconsin Child Abuse and (August 1983).

10 Id. at Table 1. protecting children and interests of important state governmen- against unreasonable families protecting pre- both lives are homes and their intrusion tal Regulation Emer- “Statutory Sampson, See served. Govern- State Taking of Child gency of Possession Challenges “Legal Davidson, Entity,” mental 80’s,” Protect- Agenda for the Protection —An Child 92-120, System, pp. Legal Through the ing Children 1981). (ABA 956-58 ap- Judge Foley in the court

I, who dissented like and remand for the conviction peals, would reverse new trial. Leissring, Plaintiff-Appellant,

Avonelle F.

v. Department Relations, Industry, Labor & Human

Defendant-Respondent, District, Hamilton Defendant. School No. [Case 82-1409.] Frey, Plaintiff-Respondent, Richard C.

Department of Industry, Relations, Labor & Human

Defendant-Appellant, District, Juda School Defendant. No.

[Case 82-1913.] Supreme Court 82-1409, Argued Nos. 82-1913. October 31, 1983. Decided November 1983.

(Also reported 533.) in 340 N.W.2d

Case Details

Case Name: State v. Boggess

Court Name: Wisconsin Supreme Court

Date Published: Nov 30, 1983

Citation: 340 N.W.2d 516

Docket Number: 82-798-CR

Court Abbreviation: Wis.