State v. Boggess

340 N.W.2d 516, 115 Wis. 2d 443, 1983 Wisc. LEXIS 3218

• Court: Wisconsin Supreme Court
• Decided: November 30, 1983
• Docket: 82-798-CR
• Status: Published

Opinions

WILLIAM A. BABLITCH, J.

Calvin Boggess petitions for review of a published decision of the court of appeals¹ affirming a judgment of conviction for three counts of child abuse, contrary to sec. 940.201, Stats.² Boggess contends that a social worker’s and police officer’s warrantless entry into his home for the purpose of determining the safety and welfare of two children constituted an unreasonable search and seizure, contrary to the fourth amendment to the United States Constitution³ and article I, sec. 11 of the Wisconsin Constitution.⁴ He asserts that all evidence obtained as a result of that entry must be suppressed.

We hold that under the totality of circumstances in this case, a reasonable person would have believed that there was an immediate need to render aid or assistance to the children due to actual or threatened physical injury, and that there was an immediate need for entry into the home to provide aid or assistance to them. Therefore, the warrantless entry was justified under the emergency rule exception to the warrant requirement. We affirm the decision of the court of appeals.

On Friday, February 6, 1981, Greg Benesh, a social worker with the Oconto County Department of Social Services, received an anonymous telephone call around suppertime. The caller indicated that children may have been battered and were in need of medical attention. The caller identified two children by their last names (and at least one, if not both of the children, by the first name), and indicated that they lived with Boggess, the defendant. Through this information, the caller indicated that the children had different last names than Boggess. The caller also indicated that one of the children, L.S.⁵, was limping, and that because of bruises the caller witnessed on L.S., L.S. may have further damage done to his body and should be checked by a doctor. The caller additionally stated that he knew the Boggesses fairly well and that Mr. Boggess had a bad temper.

Immediately after the call ended, Benesh telephoned Joan Hammel, another social worker employed by the Oconto County Department of Social Services who was the intake worker on duty that evening. Benesh relayed to her the information that the anonymous caller had provided. Shortly thereafter, Hammel met with Officer Douglas McMahon, traffic sergeant for Oconto county. Hammel explained to McMahon that she was going to the town of Underhill to the Calvin Boggess residence because the health, safety and welfare of two children were in question. She asked McMahon to accompany her for her protection because of the caller’s statement that Boggess had a bad temper.

When Hammel and McMahon arrived at the Boggess residence, they went to the door and Hammel knocked. When Calvin Boggess opened the door, Hammel identified herself and McMahon, and stated that she was an agent of the social services department and that McMahon was a member of the Oconto County Traffic Department. Hammel informed Boggess that the reason they were there was to ascertain the safety and welfare of the two children because her agency had received a telephone call concerning the children’s safety. At that point, Boggess asked Hammel if she had a warrant, to which Hammell responded that she did not need one because “. . . by the Children’s Code a warrant is not necessary for minor children.”⁶ Hammel and McMahon then entered the home.

Once inside the home, Hammel went over to L.S. and saw that a pronounced part of his lip was missing and that the wound was inflamed and needed to be cleaned. Without directing the question to anyone in particular, Hammel asked, “What happened ? How did he get hurt ?” Calvin Boggess responded that he had fallen on L.S. and had hurt him. Later, Boggess stated, without prompting, that he had spanked both children several times.

With Janice Boggess present, Hammel examined L.S. more thoroughly in a rear bedroom. She observed that he had bruises on both sides of his legs from the ankles to the thighs, and that his arms were black and blue from the elbows to the wrists and halfway up his back. She also noticed that L.S. had hair missing from the top of his head, and that he walked with a “waddled limp.” Hammel then examined K.S. and observed bruises on her body.

After Hammel finished examining K.S., Hammel and McMahon immediately took both children in McMahon’s squad car to the nearest hospital. At the hospital, the children received medical examinations and photographs of both children were taken.

Boggess was charged with two counts of child abuse, contrary to sec. 940.201, Stats., and one count of mayhem, contrary to sec. 940.21.⁷ Boggess filed motions to suppress his statements made after Hammel and McMahon entered his residence, Hammel’s and McMahon’s observations of L.S. and K.S. made inside the Boggess home, and the photographs of the two children taken at the hospital. As grounds for these motions, Boggess contended that this evidence was the product of an illegal search.

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

We note at the outset that the Children’s Code, ch. 48, Stats., does not expressly authorize a warrantless entry into a home. Even if such authority could be inferred from the provisions of ch. 48, those provisions cannot and do not supersede the provisions in the United States and Wisconsin Constitutions prohibiting unreasonable searches and seizures.

Both the fourth amendment to the United States Constitution and article I, sec. 11 of the Wisconsin Constitution proscribe unreasonable searches and seizures.⁸ The basic purpose of this prohibition is to safeguard the privacy and security of individuals against arbitrary invasions by government officials. See Michigan v. Tyler, 436 U.S. 499, 504 (1978). The United States Supreme Court has consistently held that warrantless searches are per se unreasonable under the fourth amendment, subject to a few carefully delineated exceptions. Cady v. Dombrowski, 413 U.S. 433, 439 (1973). These exceptions have been “jealously and carefully drawn”, Jones v. United States, 357 U.S. 493, 499 (1958), and the burden rests with those seeking exemption from the warrant requirement to prove that the exigencies made that course imperative. Coolidge v. New Hampshire, 403 U.S. 443, 455 (1971).

In this case, Hammel’s and McMahon’s entry into the Boggess residence was a search within the meaning of the fourth amendment to the United States Constitution and article I, sec. 11 of the Wisconsin Constitution.⁹ A warrant was therefore required for this intrusion unless it was justified under an exception to the warrant requirement. If the circumstances presented no exception to the warrant requirement, all evidence obtained as a result of the entry and search must be suppressed.

The state asserts, and the trial court and court of appeals agreed, that the warrantless entry in this case was lawful because it was justified under the emergency rule exception to the warrant requirement. In State v. Pires, 55 Wis. 2d 597, 201 N.W.2d 153 (1972), we approved an emergency rule as an exception to the warrant requirement. We recognized that neither the fourth amendment to the United States Constitution nor the Wisconsin Constitution bars a governmental official from making a warrantless intrusion into a home when the official reasonably believes that a person within is in need of immediate aid or assistance.¹⁰ The rule demands that the government official’s actions be motivated solely by a perceived need to render immediate aid or assistance, not by a need or desire to obtain evidence for a possible prosecution. 55 Wis. 2d at 604. This exception to the warrant requirement is grounded on the notion that the preservation of human life is paramount to the right of privacy protected by the fourth amendment. State v. Prober, 98 Wis. 2d 345, 363-64, 297 N.W.2d 1 (1980).

In Prober, we established a two-step analysis for determining the validity of a warrantless search under the emergency rule:

‘‘First, the search is invalid unless the searching officer is actually motivated by a perceived need to render aid or assistance. Second, . . . until it can be found that a reasonable person under the circumstances would have thought an emergency existed, the search is invalid.” 98 Wis. 2d at 365.

The first test is a subjective test, and the second is an objective test. Both tests must be satisfied before a warrantless entry will be justified under the emergency rule exception.

For purposes of this review, Boggess does not challenge the trial court’s finding that Hammel and McMahon were motivated by a perceived need to render aid or assistance. The first or subjective test of the Prober analysis is therefore satisfied.

Boggess instead argues that the second or objective test of the Prober two-step analysis is not satisfied. He contends that under the totality of circumstances confronting Hammel and McMahon at the time they entered the Boggess residence, a reasonable person would not have believed that an emergency existed. We disagree.

[2]

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

Our prior cases upholding a warrantless entry into a home under the emergency rule exception have generally involved a set of common circumstances from which we concluded that a reasonable person could have believed an emergency existed. For example, in Kraimer, police made a warrantless entry into a home after receiving three anonymous telephone calls. The caller stated, in part, that he had shot and that he believed he had killed his wife four days earlier, that his four children were at home with him, and that he was very upset. We concluded that under the objective test of the Prober analysis, a reasonable person could have believed that an emergency existed. Similarly, in Pires, police made a warrantless entry into a home after receiving a police radio dispatch to go to the defendant’s address because of a report that there supposedly was a child’s body and a semiconscious woman in the dwelling. We held that their initial entry into the dwelling was justified under the emergency rule. See, also, LaFournier v. State 91 Wis.2d 61, 280 N.W.2d 746 (1979); State v. Davidson, 44 Wis. 2d 177, 170 N.W.2d 755 (1969), State v. Hoyt, 21 Wis. 2d 284, 128 N.W.2d 645 (1964). In both Kraimer and Pires, as in this case, the common circumstances are the existence of information indicating an immediate need to render aid or assistance to a person due to actual or threatened injury, and an immediate need to enter an area in which there is a reasonable expectation of privacy in order to provide that aid or assistance.

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

In asserting that the facts and circumstances confronting Hammel and McMahon do not support a reasonable belief that an emergency existed, Boggess relies on our decision in Bies v. State, 76 Wis. 2d 457, 470, 251 N.W.2d 461 (1977). In Bies, we indicated that an anonymous telephone call was not possessed of even minimal “indicia of reliability”. Boggess also cites several United States Supreme Court decisions that discuss the use and reliability of information supplied by known and anonymous third parties to establish traditional probable cause to authorize issuance of an arrest or search warrant, or to justify a warrantless search or arrest. See, e.g., Aguilar v. Texas, 378 U.S. 108, 114 (1964); Spinelli v. United States, 393 U.S. 410 (1969); McCray v. Illinois, 386 U.S. 300 (1967) ; Illinois v. Gates,-U.S.-, 103 S. Ct. 2317 (1983).

In assessing the value and reliability of information provided by an anonymous informant for purposes of establishing traditional probable cause to issue a search warrant, the United States Supreme Court recently held that an anonymous informant’s tip should be analyzed under a “totality of the circumstances” approach, which includes a balanced assessment of the relative weights of all indicia of reliability attending the information. Gates,-U.S. at-, 103 S. Ct. at 2330, 2332. Prior to issuing a warrant, a magistrate must make a common-sense decision whether, given all circumstances before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information,¹¹ there is a fair probability that evidence of a crime will be found in a particular place. -U.S. at-, 103 S. Ct. at 2332. In determining the overall reliability of an anonymous informer’s tip, the “totality of circumstances” approach permits a deficiency in indicia demonstrating an informer’s veracity to be compensated for by a strong showing concerning the informer’s basis of knowledge, or by some other indicia of a reliability.¹² See Id. at 2329.

Although the “totality of circumstances” analysis in Gates applies to situations involving the traditional probable cause determination, it is also relevant to an analysis of whether a reasonable person would have believed, under the totality of circumstances, that there was an immediate need to render aid or assistance due to actual or threatened physical injury, and that immediate entry was necessary. The totality of circumstances in this case must, however, be evaluated within the context of a possible emergency situation, which, by its very nature, involves potentially serious consequences if immediate action is not taken, and necessarily demands a prompt assessment of the information that is available.

As the United States Supreme Court noted in Gates, the veracity of persons supplying anonymous information is, by hypothesis, largely unknown and unknowable. Id. at 2332. That does not necessarily mean, however, that the information the person provided must automatically be discredited. The information must be assessed under the totality of circumstances. Such circumstances may include the presence of detail in the information, and corroboration of details of an informant’s tip by independent police work. See id. at 2334, 2335-36. Detail that an informer provides is evidence that the manner in which he obtained his information was reliable, and it enables the recipient of the information to conclude that he is relying on something more than casual rumor or an accusation based on a person’s general reputation. See Spinelli. In addition, corroboration of details contained in the information reduces the chances of a “reckless or prevaricating tale.” See Gates, 103 S. Ct. at 2334.

In this case, unlike the anonymous caller in Bies, who provided only a vague statement that there was noise in the general area of the defendant’s garage, the person who called Benesh provided detailed information. The caller identified two children by their last names (and at least one, if not both of the children, by the first name), gave Boggess’ last name, and indicated by this that the children had different last names than Boggess. The caller did not simply make a generalized statement that the children had been abused but specifically indicated that L.S. had bruises and was limping. The caller also indicated that he knew the Boggesses fairly well, and that Calvin Boggess had a bad temper. The detail provided indicates that the caller was speaking from personal knowledge and not merely repeating an idle rumor. The caller’s statements that he witnessed bruises on L.S. and that he knew the Boggesses fairly well also reflects his basis of knowledge, and indicates that he in all likelihood obtained his information from personal observation, not from gossip or rumor.

In addition, prior to entering the Boggess residence, Hammel indicated to Boggess that they were there to investigate the safety and welfare of the children. The fact that it was Boggess who answered the door of the residence to which Hammel and McMahon went, and that Boggess did not deny that children lived there but instead asked Hammel if she had a warrant, provided corroboration for at least portions of the information that the caller had provided to Benesh. Although the corroborated facts were “innocent” details, and not details concerning whether abuse had occurred or was occurring, the United States Supreme Court has recognized that “[bjecause an informant is right about some things, he is more probably right about other facts.” Gates,-U.S. at-, 103 S. Ct. at 2335, quoting Spinelli v. United States, 393 U.S. at 427 (White, J., concurring). The “totality of circumstances” in this case thus consists of information provided on a Friday evening by an anonymous caller concerning a potential emergency situation requiring immediate medical aid or assistance to injured children. The information contained several details indicating that the caller had obtained the information firsthand, and Hammel and McMahon partially corroborated certain details provided in the information prior to their entry into the Boggess residence. Any deficiency in the veracity of the caller due to his anonymity was compensated for by both the specific detail contained in the information the caller provided and by the corroboration of portions of that information. See Gates, 103 S. Ct. at 2329. We therefore conclude that under the totality of circumstances in this case, a reasonable person would have believed that a situation existed requiring an immediate need for aid or assistance due to actual or threatened physical injury to the children.

We also conclude that a reasonable person would have believed that immediate entry was necessary to render aid and assistance to the children. The caller indicated that two children at the Boggess residence may have been battered and needed medical attention. The caller also indicated that one of the children was limping, and that Calvin Boggess had a bad temper. The emergency rule applies to situations in which there is a need to render aid and assistance and avoid serious injury. See Kraimer, 99 Wis. 2d at 314; Wayne v. United States, 318 F.2d 205, (D.C. Cir. 1963) (opinion of Burger, J.)

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

Because the warrantless entry into the Boggess residence was justified under the emergency rule exception, the entry was reasonable and lawful. The evidence obtained pursuant to that entry, was, therefore, not the product of an illegal search, and the trial court properly denied the motions to suppress.

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

1 State v. Boggess, 110 Wis. 2d 309, 328 N.W.2d 878 (Ct. App. 1982).

2 Section 940.201, Stats., provides:

“940.201 Abuse of children. Whoever tortures a child or subjects a child to cruel maltreatment, including, but not limited, to severe bruising, lacerations, fractured bones, burns, internal injuries or any injury constituting great bodily harm under s. 939.22(14), is guilty of a Class E felony. In this section, ‘child’ means a person under 16 years of age.”

3 The Fourth Amendment to the United States Constitution provides:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized.”

The provisions of the fourth amendment are applicable to the states through the Due Process Clause of the fourteenth amendment. Mapp v. Ohio, 367 U.S. 643, 655 (1961).

4 Article I, sec. 11, of the Wisconsin Constitution provides:

“The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.”

5 The caller provided the full first and last names of at least one, if not both, of the children. For purposes of this decision, only the initials of the children’s names will be used.

6 The Children’s Code is codified in ch. 48, Stats.

7 Section 940.21, Stats., provides:

“Mayhem. Whoever, with intent to disable or disfigure another, cuts or mutilates the tongue, eye, ear, nose, lip, limb or other bodily member of another, is guilty of a Class B felony.”

8 Because article I, sec. 11 of the Wisconsin Constitution is substantially similar to the fourth amendment to the United States Constitution, we have recognized that the standards and principles surrounding the fourth amendment are generally applicable to the construction of article I, sec. 11. See State v. Paszek, 50 Wis. 2d 619, 624, 184 N.W.2d 836 (1971).

9 The fourth amendment to the United States Constitution is applicable to situations involving intrusions upon privacy interests by government officials. It is therefore a limitation upon the government only. See Burdeau v. McDowell, 256 U.S. 465 (1921); 1 LaFave, Search And Seizure, sec. 1.6 at 110 (1978). Although a social -worker initiated the intrusion in this case, the fourth amendment is still implicated. As previously noted, county agencies are statutorily authorized to investigate reports of child abuse. See sec. 48.981(3) (c)1., Stats. Hammel was therefore acting as a government official when she went to the Boggess residence. We also note that a traffic sergeant, who is a government official, accompanied Hammel to the Boggess residence and entered the home with her.

10 In our discussion of the emergency rule in State v. Prober, 98 Wis. 2d 345, 297 N.W.2d 1 (1980), we cited the following statement by the New York Court of Appeals in People v. Mitchell, 347 N.E.2d 607, 610 (N.Y. 1976) : “. . . the protection of human life or property in imminent danger must be the motivation for the search rather than the desire to apprehend a suspect or gather evidence for use in a criminal proceeding.” Because this case does not involve a warrantless entry into a home for the protection of property, we need not decide whether such an entry could be justified as within the emergency rule exception to the warrant requirement.

11 In Aguilar v. Texas, 378 U.S. 108 (1964), and Spinelli v. United States, 393 U.S. 410 (1969), the United States Supreme Court established guidelines concerning the quantum oí evidence that an officer must present to a magistrate to establish probable cause to authorize issuance of a warrant based upon hearsay information. The decision in Aguilar resulted in what is commonly referred to as a “two-prong” test, which is equally applicable when police claim they had probable cause to make a war-rantless arrest or search. Under the first or “basis of knowledge” prong, facts must be revealed that permit a magistrate to determine whether an informant had a basis for his allegation that a certain person had been, was, or would be involved in criminal conduct or that evidence of a crime would be found at a certain place. The second or “veracity” prong requires that facts be presented to the magistrate to enable him to determine either the informant’s inherent credibility or the reliability of his information on that particular occasion. See 1 LaFave, Search And Seizure, sec. 3.3 at 501-02 (1978).

In Illinois v. Gates, - U.S. -, 103 S. Ct. 2317 (1983), the court held that while the guidelines set forth in Aguilar and Spinelli are still relevant in assessing the reliability of third party information to determine traditional probable cause, they are not to be considered as separate and independent elements subject to a rigid application. Rather, they are among the relevant considerations to be assessed in a “totality of circumstances” analysis, which the court indicated was the controlling analysis for determining whether there is probable cause to issue a search warrant based, in part, upon an informant’s tip.

12 In Illinois v. Gates, the court noted :

“. . . if an unquestionably honest citizen comes forward with a report of criminal activity — which if fabricated would subject him to criminal liability — we have found rigorous scrutiny of the basis of his knowledge unnecessary .... Conversely, even if we entertain some doubt as to the informant’s motives, his explicit and detailed description of alleged wrongdoing, along with a statement that the event was observed firsthand, entitles his tip to greater weight than might otherwise be the case.” 103 S Ct at 2329-30.