State v. Thiel

State of Wisconsin, Plaintiff-Appellant-Cross

Respondent, Marvin C. Defendant-Respondent-Cross Thiel,

Appellant. Supreme Court 12, 1993. argument No. 92-0794-CR. Oral October Decided 13, 1994. May (Also 847.) reported in 515 N.W.2d For the plaintiff-appellant-cross respondent O'Brien, Daniel argued cause was by J. assistant attor- (in on ney with whom the briefs the court of general, was James E. Doyle, attorney general. appeals) For the defendant-respondent-cross appellant (in the court of appeals) by Richard there were briefs Hahn, S.C., Hahn and Holden & Sheboygan and oral by Richard Hahn. argument GESKE, P. J.

JANINE This case is before the court on certification the court appeals, pursuant (Rule) 809.61, to sec. from Stats. The state appeals 26, 1992, March order the circuit court for Sheboy- gan County, Circuit Gary Langhoff, Judge, suppressing inculpatory given police statements to the defendant, Marvin Thiel was (Thiel), who feloniously with to a child material charged exhibiting which is harmful to children with feloniously to exhibit harmful material to a child. Thiel attempting from that of the March 26 order cross-appeals part which denied his motions in the regarding deficiencies preliminary decision; lack hearing charging of probable cause in the supporting affidavit request warrant; search overbreadth of the search warrant; and the involuntariness of his statements 19, a November Thiel also from appeals

given police. motion denied his 1991, Judge Langhoff wherein order on of lack grounds the criminal complaint to dismiss 948.11, the sec. constitutionality cause and probable Stats. are the court of appeals certified by

The questions as follows:

(1) you inquiry police Thiel's Was —"Do his attorney?" to invoke I need an think —sufficient counsel? right to Walkowiak, in State v. holding with our

Consistent (1994), 863 also 480, 486, 2d 515 N.W.2d 183 Wis. is that such a statement we conclude today, mandated the and, therefore, insufficient invoke equivocal Further, upon equivo- we hold that an to counsel. right all must cease until interrogation cal inquiry, is resolved. ambiguity 948.11, Stats., which the dis- regulates Is sec. children," "harmful of obscene materials

semination due to overbreadth? unconstitutional 948.11, not unconstitu- Stats., hold that sec. We has Rather, legislature overbroad. properly tionally the Miller test1 in to assess obscenity order adapted materials are harmful to minors so to protect what without well-being youth unduly burdening view, first of adults sell or rights amendment materials not considered obscene for them. examine rights unduly Nor are first amendment adults the term "exhibit" by incorporating burdened 948.11(2)(a) In (b), statute. we construe term mean "exhibit" to "to offer present inspec- harmony tion." This definition is in the statutory with (1973). California, Miller v. U.S. focus affirmative conduct of upon an individual a toward minor minors. specific Additionally, this court heard on arguments sev- eral issues not First, certified the court of by appeals. argues statutory Thiel that the provided for exemption libraries 948.11(4), and educational institutions in sec. Stats., violates to his right equal protection guaranteed the fourteenth amendment to the United States I, and Constitution art. sec. 1 of the Wisconsin Consti- tution, thereby strict requiring scrutiny. disagree We and hold that sec. 948.11 is constitutional variable obscenity statute. We conclude the library and educational institution exception is reasonable and rationally related to the fundamental of the purpose legislation.

Second, Thiel the of challenges sufficiency in facts the amended and complaint presented evidence at the to preliminary hearing of support charge to harmful attempt exhibit materials to a child. We disagree and conclude that in facts the amended as well as complaint presented evidence at the prelimi- hearing established nary cause that probable Thiel committed crime of to attempt exhibit harmful 948.11(2)(a) minor, materials to a in violation of secs. 939.32(1), Stats. Thiel Finally, argues that the search warrant was not supported by probable cause and was not reasona- so bly specific survive fourth amendment scrutiny. We disagree. The in this magistrate case of properly applied the circumstances" "totality test Gates, in Illinois v. enunciated 462 U.S.

(1983), to determine that a fair existed probability evidence of a crime would be at the Thiel found resi- dence and place business. Additionally, given nature under and the activity investigation age was reasona- victim, the search warrant alleged scrutiny. fourth amendment satisfy bly specific on the facts rely this we appeal, For purposes to at the prelimi- and testified alleged complaint On October hearing. and the nary hearing suppression complaint with a criminal 15, 1991, Thiel was served harmful exhibiting feloniously one count of alleging 948.11(2)(a), of sec. child, to a violation materials feloniously attempting and one count Stats.,2 child, in violation of harmful materials exhibit 948.11(2)(a) 939.32(1), charges These Stats.3 secs. occurred on of an incident which were the result J.L.L., 10-year-old girl, On that 26,1991. day, August Sales, business, C&M place Specialty entered Thiel's The store is known Sheboygan, Wisconsin. shop place as or art store —a hobby supply patrons candy, pen- in order to purchase children frequented by items. J.L.L. had been to cils, other miscellaneous and and knew the proprietor this on other occasions store as a man named "Marv." 29,1991, August Sheboygan police J.L.L. gave

On her in store Thiel's an account of what happened her earlier. J.L.L. store with days stopped three what items she could afford sister see younger counter, Thiel From the store answered buy. behind Stats., 948.11(2)(a), provides as follows: Section (a) Whoever, knowledge penalties, Criminal with sells, exhibits, material, loans child nature of the transfers or to a children, any with or mone- material which is harmful without consideration, felony. tary guilty E of a Class 939.32(1), Stats., part provides relevant fol Section lows: (1). felony Attempt. attempts . . Whoever to commit a . 939.32 imprisoned

may to exceed one-half the be fined or both not penalty completed maximum for the crime .... questions prices. about merchandise Thiel and J.L.L. birthdays, particularly then had a conversation about birthday upcoming during of J.L.L. It was this con- versation that J.L.L. saw Thiel take from a booklet his photographs Thiel desk drawer. then showed J.L.L. the photographs "people booklet, in the with no clothes people pictures on," and to her stated that the in the pictures, were involved "S-E-X." In one of the J.L.L. top woman, saw a man on of a and "Marv" told her the putting something man was inside the woman so the baby. have a woman could showing photographs,

After her the asked "Marv" go up her if he should warm the VCR in room the back "dirty so the two of them could watch movies." back part room residence, Thiel referred to was of his was to the attached store. J.L.L. became worried comments, uncomfortable as a result of Thiel's and she told him she and her sister had to their leave because calling. mother was

Further discussions about the incident occurred Sheboygan police between J.L.L. and two detectives, granted who were a search warrant for the business of Marvin Thiel. In their residence search premises, videotapes, VCR, the detectives seized toys, depict- video camera, various sex and one cartoon ing Simpson engaging Bart fellatio a small with police child.4 The also seized a booklet entitled "Sexual Secrets of Zodiac," the which was recovered from the right top drawer the store's desk. The con- booklet photographs description tained consistent with the given by J.L.L. executing

While the warrant, search the detectives made contact with Thiel. He was informed the Simpson preadolescent Bart is a TV cartoon character. rights.5 well his Miranda of the warrant as

nature willing talk with officers indicated he was Thiel acknowledging signed form, his under- a waiver police standing rights. He then showed the of those they movies. He denied find his X-rated where could activity depicting possession photos being sexual explicit showing sexually photos any to children. Sheboy- Following taken to the search, Thiel was again gan Department, he once Police where was rights, and, time, of Miranda for second informed his signed inter- Thiel waiver form. When asked import rogating if officer he understood the you warnings, I need a said, Thiel "Do think Miranda responded, up you." lawyer?" "That's The detective momentary signed pause, the form. After a Thiel interrogation, During subsequent ini- Thiel any knowledge tially incident with J.L.L. denied showing her the However, he later admitted "Sexual only of the Zodiac"booklet after J.L.L. started Secrets activity.6 After conversation with him about sexual telling police he offer to take J.L.L. into his did videos, to show her Thiel further stated residence problem an he has had a with attraction to children past years. six complaint against filed Thiel on A criminal was September charged 1991, him with exhibit- ing minor, to a violation of sec. harmful materials 948.11(2)(a), attempted Stats., enticement, child 948.07(5), violation Stats. An amended com- (1966). Arizona, 5 Miranda v. 384 U.S. 436 6Thiel claimed that him X-rated J.L.L. told she had seen home, knowledge. in her parents' movies without her He used up booklet "Sexual Secrets of the Zodiac" to look J.L.L.'s identify her date of birth in order to the sexual activities of sign. astrological

plaint 15, 1991, was filed October which modified 2 in order allegation Count to delete the of attempted child enticement. The charge initial was replaced with to exhibit harmful attempt minor, material to a in vio- 948.11(2)(a) 939.32(1), lation secs. and Stats.

Thiel both counts the amended com- challenged (1) for the reasons: plaint following 948.11, Stats., sec. (2) unconstitutionally overbroad; was the complaint (3) did not establish cause; there was insuffi- probable (4) cient evidence to establish attempt; and 948.11(1), (2), (4), Stats., violated his right equal of the laws. protection At Thiel's preliminary hearing, the court denied his motion to the complaint. dismiss At the conclusion the court found prob- hearing, able cause believe that a felony was committed by Thiel, ordering his bindover for trial. The circuit court denied Thiel's motion to stay court which proceedings, in the resulted submission of additional pretrial (1) motions, to the including: challenge sufficiency the affidavit support warrant; search to the challenge sufficiency the evidence presented at the hearing Count 2 of preliminary regarding (3) a complaint; and challenge to interrogation the Sheboygan police, yielded state- inculpatory ments violative of Miranda. the court Though denied other motions, it pretrial grant did motion to statements, certain suppress inculpatory from which the state now appeals.7 state, brief, granted its notes that the circuit court suppress inculpatory

the motion to statements made Thiel to Sheboygan police regarding his attraction children and photos nudity depicting that he showed J.L.L. asked her "dirty to watch movies" with granted him. The circuit court suppress motion to go because it believed the officer not did far REQUEST

THE FOR COUNSEL circuit the the The state challenges suppression Thiel made statements inculpatory court of series 17, In on 1992. police September to the Sheboygan violated Thiel's fifth police whether deciding self-incrimination, we against amendment privilege this of con- an review of independent question conduct Kramar, State v. 767, 784, 2d Wis. stitutional fact. Turner, State Wis. (citing 440 N.W.2d (1987)). 2d 401 N.W.2d 827 333, 344, at the execution the search warrant During business, Sheboygan Thiel's home and place police Miranda, under 384 U.S. rights informed Thiel of his that he was to with Indicating willing cooperate 436. Thiel a form waived his signed right police, to and to be silent. At the conclusion of counsel Thiel to them to the search, police accompany asked there, again Once Thiel was informed of station. police his Miranda Thiel then asked one of the detec- rights. "Do think I need an and the tives, attorney?" you "That's to to you." According detective responded, up detective, paused then, Thiel momentarily time, a waiver form. the subse- signed During second Thiel made a series of statements quent interrogation, to an admission that he showed police, including of the Zodiac" had J.L.L. "Sexual Secrets he to the past years. had an attraction children for six 1992, At a hearing January, motion Thiel statements he made while at the argued police station should be was war- suppressed. Suppression ranted, Thiel, according because he invoked his right enough clarify ambiguous request by what it viewed to anbe Thiel for counsel.

to counsel when he asked the police, you "Do think I need an attorney?" Therefore, any admissions made as subsequent a result of interrogation were in violation of his since the rights, police failed to ascertain whether was in fact a inquiry request for counsel. The police did not coerce Thiel himget sign either form to waiver or make the statements. inculpatory no Additionally, further interrogation commenced until after Thiel signed the waiver form. of this may facts case be easily distinguished State v.

from the situation Lampe, 119 Wis. 2d (1984), 349 N.W.2d 677 in which the defendant clearly made a for counsel request prior additional interro- At no gation. time the search of during Thiel's store, residence or nor later at the Sheboygan police station, did Thiel request assistance of counsel. At no time was Thiel coerced to sign either of the waiver forms or to subsequent make inculpatory statements Rather, the police. he was informed on separate two occasions of his and rights waived unequivocally those Walkowiak, rights by signing the forms. In held we that when a an equivocal defendant makes inquiry regarding counsel, of all presence interrogation must cease until is resolved. The ambiguity police up officer's "That's response, you," well as Thiel's in conduct resigning waiver form his following "Do think I need equivocal inquiry, you an attorney?" resolved ambiguity which have existed. any may We now reyerse order the circuit court sup- which pressed inculpatory statements made by Thiel. We also note here that distinct from the situation Walkowiak, issue whether waiver Thiel voluntary, was intelligent knowing and was at resolved the circuit court level. The court found beyond a rea- were made to the police statements doubt that

sonable Thiel and uncoerced. rational decision result of a CHALLENGE OVERBREADTH to sec. challenge Thiel a facial constitutional raises it crime to exhibit Stats.,8 makes 948.11, this Thiel contends that to minors. materials harmful Stats., 948.11, is as follows: complete 8The text harmful material. Defini Exposing a child to 948.11 In this section: tions. (a) material' means: 'Harmful drawing, sculpture, pic- photograph, motion Any picture, 1. image person representation or or of a film or similar visual ture sexually body nudity, explicit depicts portion of that the human abuse, brutality conduct, physical or torture sadomasochistic children; or is harmful book, magazine, printed Any pamphlet, matter however 2. any recording reproduced matter enumer- or sound that contains descriptions explicit or or and detailed verbal ated in subd. conduct, excitement, sexually explicit of sexual narrative accounts that, abuse, brutality physical torture or sadomasochistic whole, as a is harmful to children. taken (b) any descrip quality to children1means 'Harmful sexually form, nudity, representation, tion or whatever abuse, conduct, excitement, physi explicit sexual sadomasochistic brutality, it: cal when torture prurient, Predominantly appeals mor- to the shameful or 1. children; bid interest of prevailing patently standards the adult 2. Is offensive to community respect for is material as a whole with to what suitable children; and artistic, literary, political, scientific or edu- 3. Lacks serious children, cational value for when taken a whole. (c) 'Knowledge of the of the means knowl- nature material' any edge of the character and content of material described herein. (d) 'Nudity' showing or means the of the human male female genitals, pubic opaque a full cover- area or buttocks with less than fully ing, showing than or the of the female breast less a with nipple, opaque covering any portion top the of thereof below the of discemibly turgid depiction genitals or of male in a the covered state. (e) individual, any firm, partnership, 'Person' means associa- legal tion, corporation entity. or other (f) 'Sexual excitement' means condition of human or male genitals female when a state of sexual stimulation or arousal. (2) (a) penalties, Whoever, knowledge Criminal with of the exhibits, material, sells, of the nature transfers or to loans a child any children, material which is harmful with or without mone- consideration, tary felony. guilty is of a E Class (b) Whoever, knowledge material, with of the nature of the possesses material which is harmful to children with intent to sell, exhibit, guilty transfer or loan the material a to child is of Class A misdemeanor. (c) prosecution It is an affirmative to a defense for a violation ofthis if section the defendant had reasonable cause to believe that age years, had of child attained the and child exhibited card, license, the defendant a draft driver's birth or certificate apparently purporting other official or official document to estab- age years. lish that child had attained the of 18 A defendant who proving raises this has affirmative defense the burden of this by preponderance defense of the evidence. (8) (2) any person If is Extradition. convicted under sub. state, governor any person perform- cannot be found in this or ing governor by shall, authority of the functions of the law unless person appealed judgment contempt the convicted has from the determined, appeal finally or conviction and has not been authority his or demand her from the extradition executive of the person state in which the is found. institutions, (a) legisla- Libraries and educational The ture par. finds that the libraries and educational institutions under (b) carry purpose making out the essential available all citi- current, books, materials, zens a balanced collection reference

periodicals, recordings sound and audiovisual materials that diversity pluralistic reflect the cultural nature of American society. legislature further finds that it in the interest ofthe protect state to the financial resources of libraries and educational being litigation expended permit institutions from and to these greatest possible fulfilling resources be used to the extent purpose of essential libraries and educational institutions. (b) person employe, No who is an member of the board any following prosecution or a directors trustee of is liable to for violation of this section for acts or omissions while in his her capacity employe, as an a member the board of directors or a trustee: substantially He written, overbroad. statute, is as criminally punishing argues it effect of that has the pro- which is exhibit, sell, or view material those who including mainstream, amendment, tected the first descriptions containing explicit popular of literature sexual acts. overbreadth estab

The doctrine of substantial exception general person to to the rule that "a an lishes may constitutionally applied cannot whom statute be challenge ground may on it be the statute unconstitutionally applied to others." Massachusetts (1989) (citing Airport Oakes, 576, 581 Board 491 U.S. of Angeles Jesus, Inc., 482 Los v. Jews U.S. Comm'rs of (1987)). 569, 574 948.11(2), argues Stats., is Here, Thiel that if sec. given meaning, it so that the its normal is overbroad apply to will conduct which sanctions statute regulate. Tronca, State v. 84 Wis. is not entitled state secondary public elementary 1. A or school. 115.001(3r). school, private 2. A as defined in s. vocational, Any offering or 3. technical adult educa- school tion that: vocational, a. Is a technical and adult education district school, approval approved educational board is a school (h); 38.51(9)(f),(g) school s. or under s. 38.51 is a described'in 501(c)(3) exempt of b. Is from taxation under section 71.01(6). code, revenue as defined s. internal accredited, Any higher is 4. institution education that as 39.30(l)(d), exempt in s. from taxation under sec- described 501(c)(3) 71.01(6). code, as tion the internal revenue defined s. library funding any 5. A from unit receives government. section, Severability. provisions including of this 990.001(11). (4), severable, provisions provided are in s. sub. 332, 948.11 Act Section was enacted as Wis. sec. 55. part Code, As the revision ofWisconsin's Criminal sec. 948.11 944.25, Stats., replaced repealed by sec. which was 1987 Wis. 45, 1,1989. July Act effective (1978) Starks, State v. 68, 89, 267 2d N.W.2d 216 (citing (1971)). 51 Wis. 256, 263, 2d 186 N.W.2d 245 Specifi Thiel cally, claims that of sec. language 948.11(2)(a) (b), and which an states that individual not "exhibit" material may which is harmful to chil dren, has the effect of chilling activities legitimate and will to fact situations "apply where regulation to sought be would imposed fundamental first- violate Tronca, amendment 84 at rights." Wis. 2d 89. We disa 948.11(2) and gree conclude that the language sec. is not and overly broad the statute is rationally related to the compelling interest this state pro tect youth. its well-being A reviewing court must view overbreadth doc " trine as medicine'" 'strong which should be employed "with only hesitation, and then a 'only as last resort.'" Ferber, New York (1982) v. 747, 458 U.S. (quoting Oklahoma, (1973)). Broadrick 413 U.S. Facial challenges statute, such as the one Thiel here, makes do not succeed a limiting when construc tion is available legislation's maintain Broadrick, constitutional integrity. 413 U.S. at 613. Additionally, since sec. encompasses 948.11 both speech conduct, and the overbreadth must alleged be both real and substantial. Id.9 allege Thiel 948.11, Stats., does not vague. A statute which is vague has the of impinging upon effect three (1) first amendment provide values: it does not individuals with (2) warning prohibited; fair of what is lacking precise or articu standards, lated it for arbitrary discriminatory allows (3) enforcement; it activity pro causes citizens to "forsake may tected the First prohibited." Amendment for fear it be Casado, (10th M.S. News Co. v. 1983). 1281, 1290 721 F.2d Cir. chal- an overbreadth underlying The rationale prevent "chilling two goals: includes lenge (2) to selective speech prevent on free effect" statute, target would and dis- enforcement of ' classes of against people.10 criminate certain over- challenged unconstitutionally A statute judicial "cured" means broad can be for a and val- narrowing which provides interpretation, The court also may of the law. idating construction of stat- the the portion excise sever unconstitutional in force. legislation Finally, the rest of the ute, leaving it statute, the entire may holding the court strike down Fallon, H. on its face. Richard to be unconstitutional Overbreadth, Making Sense of Jr., 853, 100 Yale L.J. (1991). 886 Mitchell, 169 Wis. 2d court noted in State v.

As this rev'd on other (1992), 153, 162, 485 807 N.W.2d in (1993), step 2194 "The first grounds 113 S. Ct. is to challenge a statute constitutional reviewing bears the burden of its party proving determine which . the constitutionality party challenging ..." Typically, burden must prove beyond the statute bears that and the statute is unconstitutional. reasonable doubt that 10 Overbreadth, Fallon, Jr., Making Sense See Richard H. of (1991). 853, 100 868 n.94 Fallon notes that the Yale L.J. [ojverbreadth assumptions about and doctrine rests on uncertain sociological shifting psychological

possibly variables such as by susceptibility speech of different forms of to deterrence over- the rules, degree as cover broad to which overbroad rules function enforcement, narrowly discriminatory utility and the of law limiting judicial averting chil- drawn statutes or constructions ling restraining discriminatory police behavior effects and prosecutors.

522 Salamone, v. Bachowski 397, 404, 139 Wis. 2d 407 (1987). However, N.W.2d 533 burden of proof shifts to the proponent statute when it has the effect of City first infringing upon rights. amendment Baumann, Madison 660, 669, Wis. 2d (1991). N.W.2d 296 We believe state this case successfully has borne the burden of proof by showing regulation materials deemed be harmful to minors was rationally related its compelling inter- est protect well-being youth. our The statute properly regulates the dissemination of materials con- sidered to be harmful to minors without unduly burdening adults to have rights access to these same materials.

Obscenity is not protected the first amendment. States, Roth v. United (1957). 476, 354 U.S. As defined in Miller v. California, 413 U.S. (1973), a work obscene if:

(a) average person, ... 'the applying contemporary community standards' work, would find that whole, taken as a appeals prurient interest, to the (b). . . the work or depicts describes, in a patently way, specifically offensive sexual conduct defined (c) applicable law; state . work, and . . whole, taken as a literary, artistic, lacks serious political, or scientific value.

(Citations omitted.) states have Many enacted laws in to order ban or restrict the flow of obscene materials to minors. A law which prohibits a from person distribut- ing children exhibiting materials any deemed to be children, obscene to but not to adults, obscene is called a variable obscenity statute. Variable obscenity

523 interest compelling protect reflect a state's statutes children, of well-being and psychological the physical in par- them from obscenity, to protect in and general, Ferber, 756-57. 458 U.S. at ticular. a variable created legislature

The Wisconsin 948, Stats., which the context of ch. statute in obscenity children. crimes constituting against conduct defines Stats., 948.11, purpose, has twofold sec. Specifically, in other states: obscenity statutes to variable similar (1) harmful to them as minors from material to protect (2) super- rights parents of protect a class children. See also their development of vise the Issue Weller, See No Evil: The Divisive W. Christopher Laws, Rev. 142 Minors' Access 18 Cumb. L. See No Brief of Amici Evil] (citing [hereinafter v. New Ginsberg in at 6 Appellant Support Curiae (1968)). York, 390 U.S. 629 948.11, Stats., Thiel joins his on sec. In attack other variable which has involved debate ongoing social competing statutes: how to resolve obscenity physical psychological 'the safeguarding" values "11 unduly burdening without of a minor' well-being of adults rights individual first amendment " "12 in this fashion.' The issue 'real and substantial 948.11, Stats., therefore, is uncon- case, whether it infringes upon expression stitutional because first under the amendment. guaranteed protection Ginsberg, Court, States Supreme The United 629, recognized concept 390 U.S. "variable Ferber, Evil, (quoting No 18 Cumb. L. Rev. at See 756-57). U.S. at 12 Id. Jacksonville, (quoting City Erznoznik v. U.S. (1975)).

205, 216 obscenity,"13 legislature which allows state or munic- ipality to ban access to materials deemed to be obscene opposed Ginsberg for minors as to adults. was con- selling "girlie" victed under a New York for law14 magazines appeal, Ginsberg challenged to minors. On argued scope the statute and "the of the constitu- expression tional freedom of secured to a citizen to read [could not] or see material concerned with sex be made depend upon whether the citizen is an adult Supreme minor." Id. at 636. The held, however, Court obscenity that New York's variable con- standard was "simply adjusted] stitutional, and statute obscenity by permitting of definition 'to social realities appeal [material sex] of concerned with to be in assessed terms of the sexual . . interests . .' of. . obscenity" concept developed by The "variable was Wil liam Censorship B. Lockhart and C. Robert McClure Standards, Obscenity: Developing Constitutional 45 Minn. (1960). L. obscenity... "[v]ariable Rev. 5 The authors state that analytical dealing tool problem furnishes useful for with the denying access primary adolescents to material aimed at a audi sexually obscenity ence of mature adults. For variable focuses upon primary the make-up peripheral attention and audi varying circumstances, provides ences reasonably satisfactory delineating for means the obscene in each circum Id. at 85. stance." 484-h.l(f) York

14 New Penal Law stated "harmful having minors" meant a quality that (i) predominantly appeals prurient, to the or mor- shameful minors, bid interest (ii) patently prevailing is offensive standards the adult community respect as a whole with is what suitable material for minors, and (iii) utterly redeeming importance without social minors. Ginsberg, 390 at U.S. 646. York, Mishkin v. New Id. at 638 (quoting

minors." (1966)). where there "even 502, 509 Consequently, U.S. power freedoms 'the protected an invasion of is beyond the of children reaches control conduct state to adults .. .'"Id. (quoting authority of its over the scope (1944)). Massachusetts, 158, 170 Prince v. 321 U.S. to minor's regulate exposure to ability The harmful two justified considered be materials maintains First, state state interests. compelling of an well-being youth, to safeguard the desire powers reg- constitutional interest within state's recognize right parents the basic ulation. We of their chil- development raise and direct the nurture, Therefore, at 639. Ginsberg, 390 U.S. dren. that teach- parents, can conclude legislature properly who have the primary responsibility ers and others to support by of children are entitled development fulfilling to aid them in designed means of legislation that obligation. in

Second, an interest independent the state has are Our children the future youth. its well-being not in a always posi- Since are parents of this country. exposure their children from to obscene tion to shield materials, the exhibi- justified regulating the state is of materials to minors. Such types tion of those legitimate reflects the interest regulation protecting to be harmful to their minors from materials deemed welfare. to exclude

Therefore, power sustain state "[t]o that obscenity... requires only material defined as we legisla- it was not for the be able irrational say find ture to to material condemned exposure to minors." Id. at 641. A state the statute is harmful may explicit distribution prohibit sexually though children, materials to even the materials would they not be considered obscene if were distributed to an adult. Id. at 636-37. Ginsberg sparked proliferation decision obscenity country. Many

variable statutes across the beyond states later modified their laws to move ruling Ginsberg regulate in order to the sale and display of material harmful minors. The United Supreme "particularly States Court that, held where merely speech conduct and not involved, is . . . the only overbreadth of a real, statute must not be but judged well, substantial as in relation to the statute's plainly legitimate sweep." Broadrick, 413 at U.S. 615. obscenity Therefore, a variable statute must not sub- stantially impair protected access adults to materials. require

These statutes must also scienter order self-censorship to "avoid the hazard of of constitution- protected ally compensate material to for the ambiguities obscenity." inherent in the definition of Mishkin, U.S. 383 at 511. challenges

Recent constitutional to variable obscenity upon scope statutes have focused of the imposed prohibitions. Evil, See No 18 Cumb. L. Rev. at Casado, 149 n.58. In M. S. News v.Co. 721 F.2d 1281 (10th 1983), Appeals Cir. the Tenth Circuit Court of constitutionality addressed the of Wichita, Kansas, a designed prevent being ordinance15 to minors from 15 5.68.156(2) display The component of sec. to ordinance Wichita, number 36-172 of the Code City Kansas, provided: person having custody, supervi- No control or Offenses. any knowingly: sion of commercial shall establishment (a) display way material which is harmful to minors in such a minors, part general public, exposed as a of the invited will be that were harm- oriented materials sexually

exposed of the statute to them. Id. at 1285.16 At the heart ful and dis- dissemination against a prohibition was the manner in which materials of obscene play with the could comply pro- establishments commercial ordinance, court concluded that hibition.17 however, person provided, a shall be deemed material to view such 'displayed' if the material material harmful minors not to have commonly kept racks' so that the known as 'blinder behind devices exposed is not to view. lower two-thirds of the material (b) distribute, view, Sell, furnish, present, or other- allow consideration, minor, any with or without wise disseminate to minors; or harmful to material which is (c) minor, presenting participate in to a minor or Present consideration, any performance which is harmful with or without to a minor. Casado, F.2d 1296-97. at incorporated test. The ordinance the Miller The Wichita "utterly rejected the without social Supreme in Miller Court as constitutional standard Memoirs test enunciated value" (1966). Massachusetts, However, variable 383 U.S. obscenity jurisdictions applied whatever in various statutes obscenity, under Memoirs or the current test either was Miller, what materials were harmful to in order to define Casado, F.2d at 1286 n.4. minors. 721 display In of two other commercial cases. 17 Wetake note Minneapolis, City v. 780 F.2d Upper Midwest Booksellers of (8th 1985), municipal Cir. the court examined a ordinance 1389 opaque the use of covers in addition to "blinder required which a minor's The racks" so as to shield certain materials from view. only affected, display of court concluded that manner was Therefore, of to not the dissemination materials adults. no vio first lation amendment'existed. Cover, contrast, Tooley,

By in Tattered Inc. 696 P.2d 780 (Colo. 1985), display provi- the court held that the commercial sufficiently narrowly so to sion of the statute was not drawn as only display on sale have an incidental effect adult facially The found be materials. statute was to invalid because which conduct not regulated plus speech,18 facially was invalid, since the alleged overbreadth was not substan- Broadrick, 615). tial. Id. at (citing 413 U.S. at In Court of Appeals the Eleventh Circuit upheld constitutional statute Georgia which made it criminal offense to in a display, place minors, accessible to material harmful any deemed statute.19 American Booksellers v. minors under applicable severability capable validating statute was not provisions. inoffensive display regulation in the ordinance con constituted manner plus speech, duct since the which material could be regulated. disseminated was Ann. provided, Ga. Code secs. 16-12-103 and 16-12-104 part, as relevant follows: Selling, exhibiting. loaning, 16-12-103. or (a) any person knowingly It shall be unlawful for or loan for to sell monetary or consideration otherwise furnish or disseminate to a minor: (1) Any drawing, picture, photograph, sculpture, pic- motion film, representation image person ture or similar visual or of a or portion body depicts sexually explicit nudity, human conduct, sexual or abuse sadomasochistic and which is harmful to minors; or (2) book, Any pamphlet, magazine, printed however matter reproduced, recording any or sound enu- which contains matter subsection, paragraph explicit merated in of this or and detailed descriptions excitement, verbal or narrative accounts sexual sex- conduct, which, whole, ual or sadomasochistic abuse and taken aas is harmful to minors. (b) any knowingly person It shall unlawful for or be to sell furnish pass knowingly to a minor an admission or or admit ticket premises picture, minor to whereon is exhibited there a motion show, presentation which, depicts part, or in whole or other conduct, sexually explicit nudity, sexual sadomasochistic abuse any picture and which is harmful minors or exhibit such motion any designed premises prevent viewing at such which are not any public way picture by from of such motion minors not admitted any premises. to such 1990). (11th analysis, In its Webb, 919 Cir. F.2d present in the the same conflict the court considered obscenity application statutes: of other variable (c) falsely any represent any to to It shall unlawful for minor be (a) (b) Code person in or subsection of this mentioned subsection years age older agent is 18 of or or to his that such minor section (a) any of procure forth in material set subsection with intent to procure such minor's admis- Code or with the intent to this section any show, presentation, picture, as set forth to or other sion motion (b) of this Code section. subsection (d) knowingly any person a false shall for to make It be unlawful (a) any person representation in subsection or subsec- to mentioned (b) parent agent or or to is the tion of this Code section his he any years age guardian any or older of minor or that minor is 18 (a) procure any set forth in with the intent to material subsection procure or such minor's admis- this Code section with intent any picture, show, presentation, as set forth sion to motion or other (b) in subsection of this Code section. (e) exhibit, knowingly any person It unlawful shall.be any public or expose, display at or business or newsstands other public frequented any place or commercial establishment at other may part minors be minors or where are or invited as public: general (1) any drawing, sculpture, pic- picture, photograph, motion film, representation person image or or visual or of a ture similar nudity, body depicts sexually explicit portion of the human conduct, abuse and which is harmful sexual or sadomasochistic minors; or (2) any book, pamphlet, magazine, printed however matter any reproduced, recording enu- or sound which contains matter subsection, paragraph explicit or merated of this and detailed excitement, descriptions sex- verbal or narrative accounts sexual conduct, which, whole, ual or sadomasochistic abuse and taken as is harmful to minors .... Library exception. 16-12-104. provisions apply to of the Code Section 16-12-103 ... shall not any public library operated by any political subdi- the state or its any library operated part school, college, any nor

visions as a university.... (11th Webb, American Booksellers 919 F.2d 1513-14 1990). Cir. hand,

On one a state's in protecting interest children from exposure to material obscene as to minors is a important substantial and state interest hand, .... On the other the indirect burden on adults' First Amendment right to have access material not obscene for adults narrowly must be drawn.

Id. at 1501.

The court concluded that the Georgia statute was "readily to a susceptible construction narrowing that [would the scope reduce] of the materials covered [and produced] only a burden on slight adults' access to pro- tected material, and fully with the comport [ed] First (footnote omitted). Id. at 1495 Amendment." Casado, Webb, Midwest, In Upper and Tattered Cover, the courts' focus was the impact of variable obscenity statutes upon commercial display materials deemed harmful to minors, but not obscene Webb, In adults. for example, appellees argued statute's Georgia definition of harmful to minors was overbroad because it established a single standard minors, for all without distinction as to levels. maturity The consequence, according to appellees, was that older minors would be denied access materials with Webb, serious literary value. 919 F.2d at 1504.

However, statute Georgia did not deny access to "reasonable minors." Illinois, See Pope 481 U.S. (1987).20 In fact, the statute did not affect materi-

20 Pope, In the Court stated proper inquiry [t]he ordinary is not whether an [of member community] literary, artistic, political, would find serious or scien- allegedly material, tific value in obscene but whether a reasonable person material, would find such value in the taken as a whole. added). Id. at (emphasis 500-01 Both the courts in Webb Ass'n, American Booksellers Virginia, Inc. v. Com. 882 F.2d 'if a work minors, since" which were protected als artistic, literary, political, serious is found have normal, legitimate for a minority scientific value lack such it cannot be said to adolescents, older .then taken as a juveniles for the entire class of value Webb, American F.2d (quoting at whole.'" Ass'n, Virginia, Inc. v. Booksellers Com. of 882 F.2d (4th denied 494 U.S. 1056 cert. 1989), 125, 127 Cir. (1990)). the given The construction stat narrowing had the of dramatically reducing ute the court effect by the ban and lessen by the amount of material covered Id. adults. the burden borne ing indirect that Wiscon- us, argues In the before Thiel case Stats., statute, 948.11, sec. is obscenity variable sin's unduly He contends that statute facially invalid. right sell, amendment adults burdens first have view, or materials which been statuto- examine The United States defined as harmful to minors. rily has Supreme Court stated: long

It has been a tenet of First Amendment law statute, if determining challenge that in a facial 'readily susceptible' narrowing it be to a construc- be constitutional, tion that make it it will would of this upheld.... key principle to application 'readily susceptible' be to the statute must limitation; not con- we will rewrite state law to form it to requirements. constitutional Assn., Virginia American Booksellers U.S. 383, 484 (citations (1988) omitted).21 397 (4th 1989), (1990), denied 494 Cir. cert. U.S. adapted Pope person" "reasonable test to create the reason test, assessing able minor when is harmful to minors. what Virginia challenged constitutionality of a Booksellers prohibited display sexually explicit of certain statute Webb court's We with the agree analysis overbreadth doctrine as well as the fact that considera- tion must be given to

the allegations of the potential range of materials statute, covered possible and the burdens on adults' access imposed by mandatory compliance measures, (1) light of our twin obligations to con- strue the statute narrowly, rewriting without its terms.

Webb, 919 F.2d at 1500. We conclude that 948.11, Stats., can be narrowly construed and is not unconsti- tutionally overbroad. The statute has, fact, struck a balance proper between this state's interest compelling whereby juveniles materials a manner could examine and peruse them. The United States District Court for the Eastern Virginia District of found the statute to be unconstitutional. The Appeals Court of for the Fourth Circuit affirmed. The U.S. Supreme Court questions then certified Virginia two to the Supreme Court: phrase

1. Did the juveniles" "harmful to encompass any of the trial, materials general introduced at and what standard should be used to Virginia reach, determine the statute's in light differing ages of the maturity juveniles and levels of of the by covered the statute?

2. Does a comply bookseller with the statute when the prohibits juvenile bookseller examination of materials covered by statute, the when observed bookseller, the but otherwise regarding takes no action display of restricted materials? Virginia Assn, v.American Booksellers 484 U.S. at 398.

Following Virginia Supreme Court's decision on those questions, certified the case was remanded to the Court of Appeals Circuit, for the Fourth previous which reversed its decision Virginia and held that the statute was not unconstitu 'n, tionally vague. American Booksellers Ass 882 F.2d at 126. well-being psychological physical protect materi- adult access to not precluding while youth

our though not obscene harmful to minors to be als deemed sec. Thiel's argument Contrary for adults. book which any to ban virtually be used 948.11 could statute activity, sexual or describes discusses those materials only for minors as obscene defines scien- artistic, political, literary, serious "[lack] which as a taken children, for when value tific or educational 948.11(l)(b)3, Stats. Section whole." 948.11, drafted sec. narrowly has The legislature effect on the an incidental only to have Stats., so as not to be considered to view materials of adults rights of the statute reflects The language for them. obscene well-being interest to protect compelling the state's the nature materials.22 examining youth by of its be harm- is deemed to of the materials Once the nature progress" of a "work has been somewhat Section 948.11 947.08, sec. time, legislature enacted At that since 1957. regulate the sale and distribution Stats., sought juvenile delinquency. stimulated publications which salacious 944.25, The act replaced Stats. 1969, that statute was In of 1969—stated Wis. Laws created sec. 944.25 —ch. following purpose: During the OF ACT. 1. PURPOSE AND INTENT SECTION years materials to past sale or distribution of harmful several increasingly grave concern to the has become a matter minors people of such sales and the conse- of this state. The elimination in the best quent-protection of minors from harmful materials are general of this morals and welfare of the citizens interests of the state, particular. state, general, of minors in this by providing accomplishment of these ends can best be achieved obtaining judi- speedy remedy public prosecutors civil with publications, the character and contents of cial determination of enjoin power promptly the sale harmful with an effective power effective to commence crim- materials to minors and with an regularly engage against persons proceedings who the sale inal materials to minors. harmful of the Miller fill, test, an individual by application may sell, or or loan, exhibit, not —in a public private forum — materials to minors. transfer harmful Each 948.11(2)(a) (b), Stats., "sell," in sec. terms — "loan," "exhibit," and represents knowing "transfer" — and affirmative act. to Thiel's Contrary argument, not term "exhibit" does sec. constitutionally imperil Rather, 948.11. we construe "exhibit" to mean "to offer See Black's Law Dictionary for present inspection." (6th 1990). ed. Distinct from those involving cases the commercial display materials con- general, audience, language sumer sec. 948.11 focuses conduct of an upon affirmative individual toward a Therefore, minor or minors. an individual vio- specific if she, lates the statute he or aware of the nature of the material, offers or for knowingly presents inspection minor or minors material defined as harmful specific 948.11(l)(b). in sec. to children

In sec. 948.11(l)(b), Stats., legislature adapted the Miller test of obscenity produce a definition of what be considered harmful to children. The first may appeal prurient two interest and prongs test — offensiveness —are con- patent analyzed by applying standards. See Smith v. United temporary community (1977). States, However, 431 U.S. 291 the third prong Ginsberg shortly Section 944.25 enacted after the deci- was the Roth-Memoirs sion, adapting obscenity test used obscenity noting New York variable statute. It is worth that on 1969, 11, an June amendment was introduced in the Senate which called for insertion of the word "exhibit" in some form to follow the terms "sell" and "distribute" elsewhere in the stat- specific ute. No rationale for the addition of the term "exhibit" legislative history. was included in the By 948.11, Stats., place, adapting was Miller test to identify materials harmful to minors. separate analysis:

requires material does the have literary, political, artistic, or scientific value? The point appropriate at this is "whether a rea- standard person material, would find such value in the sonable Pope, Therefore, U.S. a whole." at 501. taken as appropriate apply to statute standard under this is any as has material defined harmful serious whether literary, political, artistic, or scientific, educational taken as a whole. Such value is assessed value, when age by like to the minor to whom a reasonable minor of is the material exhibited. successfully

The state has borne the burden of Stats, proving 948.11, that sec. does not unconstitu- rights tionally upon the first encroach amendment Mitchell, 2d See 169 Wis. at 163. statute adults. obscenity properly adapted the Miller standard to has what are to minors so materials harmful determine well-being youth protect to to allow state unduly burdening rights amendment first without view, sell, or examine materials not consid- of adults obscene or harmful for them. ered

NONCERTIFIED ISSUES argues 948.11(4), Thiel violates Stats., that sec. his protection right equal guaranteed by of the laws to the fourteenth amendment United States Constitu- I, tion and art. sec. 1 of the Wisconsin Constitution exempts public it libraries, because educational insti- employees tutions, and their directors from prosecution under sec. 948.11. He claims that sec. 948.11(4) subject scrutiny should, be therefore, to strict abridgement expression of its because freedom of guaranteed the first amendment. disagree.

We found 948.11, Stats., We have obscenity A be a constitutional variable statute. valid statute not a fun- obscenity punish does the exercise of damental Strict an right. scrutiny inappropriate in this sale, exhibit, standard case since the or transfer materials, loan of defined as obscene harmful minors 948.11(l)(b), Stats., under sec. is not protected Roth, first amendment. See 354 U.S. at 484-85. "If the state has a rational basis for that a concluding interest be the legitimate classification, will served it may create distinctions between the of rights persons and entities to in engage conduct not the protected by Webb, San Constitution." 1511 (citing F.2d at Antonio School District v. Rodriguez, U.S. (1973)). 948.11(4), Section which a provides statutory for institutions, libraries and exemption educational is related of rationally to the fundamental purpose legislation. Webb,

Similar to the in legislation at issue 948.11(4), Stats, a or educational insti- exempts library the statutory tution from restrictions which an prohibit from individual or exhib- selling, loaning, transferring, to minors materials iting defined as harmful to them. At the of legislation heart this understanding that libraries and signif- educational institutions differ in and motivation from or icantly purpose individual of purveyors commercial obscene or harmful material. 948.11(4)(a) Section in part: states legislature finds libraries and educa- (b) par. carry tional institutions under out purpose making essential available to all citizens current, books, balanced collection of reference materials, periodicals, recordings sound and audio- diversity visual materials that reflect the cultural and nature of pluralistic society. American in engage commercial entities As contrasted for harmful materials or of obscene the dissemination such materials who exhibit individuals private profit and educational libraries gratification, for personal for reference works, variety maintain institutions these collections Because purposes.23 or educational culture diversity popular reflect the cultural tastes, they individual myriad well as society, as are and teachers who librarians monitored are audience identifying appropriate trained Thus, their use. inter- it is further finds that legislature

[t]he financial resources of protect est of the state being from institutions libraries and educational resources permit and to these litigation expended possible for fulfil- greatest to the extent to be used purpose libraries essential ling institutions. educational 948.11(4)(a), Stats.

Section and libraries argument to Thiel's Contrary to engage be permitted institutions will educational individ- other any to be unlawful considered activity entity, ual or commercial right accorded to the protection

[t]he constitutional judicial thus legislature classifies —and 23 (7th Cir. Hanaway, 902 F.2d In Kucharek v. 1990), noted that: the court purveying of or exhib- schools are not the business

Libraries and however, They are, frequent targets iting pornographic materials. concerned, ignorant private in an and nar- citizens sometimes way, exposure of their children to immoral row-minded with the exemption purpose is to shield libraries .... The of the influences disseminating groundless complaints of obscene schools from and materials, is rational. scrutiny depend of the classification —should not on 'free propositions speech broad such as is funda- mental,' 'obscenity but, rather, on unprotected,' nature specific legisla- of the conduct that the may ture group engage in, has decreed one while a separate may class not.

Webb, 919 F.2d at 1511. purpose 948.11, The Stats., enjoin by is to conduct individuals or commer- cial entities which is to the designed appeal prurient interest of minors. We conclude that the exemption in the statute provided is reasonable and serves a "legitimate or set of based on public purpose purposes some of the conception general good." Laurence H. Tribe, American Law Constitutional sec. 16-2 at 1440 (2d 1988). See also ed. Tussman and Joseph Jacobus Equal Laws, Protection tenBroeck, 37 Cal. L. (1949). Rev. 341 Finally, the classification itself is not inherently it was not suspect, i.e., based distinction upon suspect such as race. "the Consequently, Protection Equal Clause is not offended an or over- under-inclusive inclusive restriction on ability one's con- engage Webb, duct that is not protected Constitution." Thornton, United States v. 919 F.2d at 1511 (citing (9th 1990)). F.2d 738 Cir.

Thiel also has the fac- challenged sufficiency tual allegations underlying charge attempt expose material, a child harmful in violation of secs. 948.11(2)(a) 939.32(1), Stats., in Count extended, amended This complaint. challenge well, to the preliminary he a lack hearing, wherein claimed of evidence sufficient a for A bindover trial. support is made de novo review of the bindover determination Moats, this court. State v. 74, 156 84, Wis. 2d 457 539 Williams, 104 Wis. State v. (citing 299 N.W.2d (1981)). Thiel Specifically, 22, 310 N.W.2d 15, 2d him no acts committed alleges state that claims like to watch if she would J.L.L. asking other than Thiel asserts that room. in the back movies" "dirty store, and left invitation declined his J.L.L. when Therefore, he to detain her. no overt acts he committed satisfy not invitation does his verbal that maintains intent "a criminal attempt: the crime of both prongs v. intent." State of the acts in furtherance and some (Ct. App. 380 N.W.2d 429, 431, 127 Wis. 2d Cooper, added). that 1985) conclude, however, We (emphasis and the evidence complaint in the amended the facts were sufficient hearing at the preliminary presented trial. and a bindover attempt charge support Stats., 939.32(3), provides: Section that requires crime to commit a attempt An and attain perform acts have an intent actor such constitute which, accomplished, if would result commission acts toward the and that he does crime unequivocally, demonstrate crime which that circumstances, that he formed under all the for the except the crime commit intent and would or some other extra- person of another intervention factor. neous Stewart, 143 Wis. 2d 420 N.W.2d

In State 939.32(3) to mean (1988), interpreted this court to prove attempt, that in order specific prove an intent to commit the state must to demon- accompanied by sufficient acts crime it unequivocally improbable was strate his or her own free will. The accused would desist of extra- person of another or some other intervention the accused from prevents neous factor crime is an completing the not element the crime individual, attempt. If the acting requi- with the intent, site commits sufficient acts to constitute an attempt, voluntary abandonment of the crime after point is not defense. Id. at 31. Thiel that he had not taken argues sufficient steps furtherance the crime since had charged, he if she only asked J.L.L. wanted to watch dirty movies However," the back room. ntent be inferred from may [i] conduct, the defendant's his words including ges- tures taken in Id. the context of at circumstances." State, Jacobs 35 (citing 361, 50 Wis. 2d 184 366, State, and Adams v. (1971), N.W.2d 113 515, Wis. 2d (1973)). 519, 204 N.W.2d 515 Here, Thiel's verbal invi- tation was to his subsequent showing J.L.L. booklet Zodiac," "Sexual Secrets of pic- contained men tures of and women in sexual engaged intercourse. In combination toys with sex and pornographic during videos recovered the search of the residence and store, reasonable may inferences be drawn that Thiel materials deemed harmful to children and possessed intended exhibit them to J.L.L. Thiel's failure "dirty show J.L.L. movies" in the actually back room does not mean that the intent do so not was present. the conduct element

Additionally, attempt 939.32(3), under Stats., was satisfied when J.L.L. left Thiel's becoming store after his sugges- worried tions. Thiel's conduct to that up point demonstrated only a circumstance his control beyond prevented Stewart, commission of at crime. 143 Wis. 2d 42. Olson,

In State v. 75 Wis. 2d N.W.2d this (1977), court stated that charge. docu- complaint is a self-contained which, together with set forth facts

ment itself must inferences therefrom would lead any reasonable that a crime had person conclude reasonable the defendant probably committed and that been culpable probably in the complaint the was named party. Haugen, State v. 52 Wis. 2d

Id. at 580-81 (citing (1971). assess applied The test to 793, 191 N.W.2d mini- is that it must be sufficiency complaint the df a facts in forth the essential mally adequate setting cause. Minimal adequacy which establish probable to sense as opposed common using evaluated ex rel. Evanow means. Id. State (citing hypertechnical v. 223, 226, 2d 161 N.W.2d Seraphim, 40 Wis. Elson, 54, 58, 208 (1968), and State 60 Wis. 2d (1973)). N.W.2d complaint clearly

The amended describes incident, including expos- crime of completed entire in 1. child, to Count ing alleged harmful materials include state- also allegations complaint minor child statements ments of the and inculpatory Thiel. made by there insufficient evi-

Thiel also contends that was to the preliminary hearing support dence at presented Stats., violation of under 948.11, an sec. attempted Stats. Thiel statute, 939.32, sec. asserts attempt Again, presented preliminary there was no evidence at the to to to relating with overt acts his offer hearing regard an Fur- movies," only alleged show J.L.L. offer. "dirty he state failed thermore, claims has to prove any made to J.L.L. which specific representations "harmful would be considered children" violation 948.11, Thus, a bindover for trial. warranting 2 of Thiel Count the information should have argues, disagree been dismissed the circuit court. We prelimi- conclude that sufficient evidence existed at nary hearing support for trial. Thiel's bindover testimony evidence, Sufficient in the form of and exhib- support its, existed to a bindover of Thiel on both counts.24

Finally, challenges Thiel search warrant and supporting claiming affidavit, the warrant v/as by probable supported not bly specific cause and was not reasona- satisfy scrutiny. so toas fourth amendment disagree challenges. First, We with both we con Sheboygan clude that J.L.L.'s detailed statement police that Thiel exhibited her "Sexual Secrets of the description Zodiac," her theof booklet's contents and of watching "dirty Thiel's conversation with her about " movies" in the back was room sufficient to 'excite an objects belief honest reasonable mind that sought are crime, linked with the commission of a objects sought place that the bewill found in the to be Edwards, searched.'" v. 367, 373, State 98 Wis. 2d 297 (1980) (quoting 12 Starke, N.W.2d v. 81 2d State Wis. (1978)). magistrate prop 399, 408, 260 N.W.2d 739 erly applying "totality issued the warrant, the Gates, circumstances" test enunciated in 462 at U.S. magistrate applying 230. The the task of in this test practical, to "make a whether, commonsense decision given all the circumstances set in forth the affidavit... probability [exists] a fair or contraband evidence particular place." of a crime will be found at Id. 238.

24 preliminary hearing testimony The record the contains from Sheboygan Sorensen, J.L.L. and Police Detective who interviewed J.L.L. and executed the search warrant. The record also videotapes contains one the seized from Thiel's residence. in this case cannot

Second, warrant executed the rea- Rather, it warrant. was as a general be described fourth amendment to satisfy order sonably specific at time of the of J.L.L. the age Given scrutiny.25 of the booklet exhibited incident and her description be described items to Thiel, search warrant her as and specificity much particularity seized "with as under activity the nature of circumstances Petrone, 2d State Wis. investigation permitted." (1991). items Some of the 530, 541, 468 N.W.2d included the "Sex- ultimately seized under warrant booklet, videotapes, of the Zodiac" adult ual Secrets suckers, toys, sex various containing penis-shaped box in fel- Bart depicting Simpson engaging and a cartoon could child. Each of these items latio with small harmful of materials statutory definition satisfy these items argument, to Thiel's Contrary children. or them purpose destroying not seized were Rather, they adult access to materials. restricting his as to be as evidence a crimi- preserved were seized so unlawful alleged nal out Thiel's proceeding arising conduct. 1991, warrant, September on The search executed Specialty a search of C&M Sales store as well

called for any storage of Marvin Thiel. In the search residence areas, rooms, storage or or containers inside outside the build ing, police were to examine videos, films, books, single photographs magazines depicting or explicit depicting activity naked men and/or women and/or sexual persons, identifiers, any imple- one

between or more various films, books, display tapes, ments or machines used to view video magazines pictures, property or was used in the commission of, of, may crime, exposing to wit: a child to constitute evidence 948.11(2) in of harmful material violation section Wisconsin in 948.07 Statutes child enticement violation section Wisconsin Statutes. the Court. — The orders of By the circuit court are part affirmed in and reversed in and the cause is part, remanded to the circuit court for further proceedings consistent with opinion. this in (dissenting

SHIRLEY ABRAHAMSON, S. J. part concurring part). In accordance with the State, in Walkowiak v. I views express today 183 Wis. 478, 491, 2d (1994), N.W.2d 847 I write separately to state that I agree with the circuit court defendant's statements should be suppressed.

waiver rights signed by the defendant this case is invalid as a matter law.

Circuit court judge Langhoff Gary explained circuit court's and mine position very well as follows: this,

"... in a case such as an appropriate response to the question, you "Do think I need a lawyer," suspect would be to inform the and then ..., decision is one for him or her to make to ask a decision .... Detective Sorenson's for response to Thiel's equivocal expression of interest in counsel was insufficient protect right Thiel's counsel under Edwards. Detective Sorenson began clarify equivocal the defendant's response by informing him that solely the decision was defendant's to make. After imparting this informa- defendant, tion to the Sorenson failed to ask Thiel defendant what his decision was. Detective merely Sorenson sign waited for Thiel to the waiver form. The neglected clarify detective Thiel's ambiguous request signing counsel. Mere waiver a request statement after for counsel has been made is not valid waiver . . (emphasis omitted). original; citations Decision, Memorandum p. 13.

Case Details

Case Name: State v. Thiel

Court Name: Wisconsin Supreme Court

Date Published: May 13, 1994

Citation: 515 N.W.2d 847

Docket Number: 92-0794-CR

Court Abbreviation: Wis.