State v. Boggess, 82-798-CR

• Court: United States State Supreme Court of Wisconsin
• Writing for the Court: BABLITCH; DAY; ABRAHAMSON
• Citation: 340 N.W.2d 516,115 Wis.2d 443
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Calvin BOGGESS, Defendant-Appellant-Petitioner.
• Docket Number: No. 82-798-CR,82-798-CR
• Decision Date: 30 November 1983

Page 516

340 N.W.2d 516 115 Wis.2d 443 STATE of Wisconsin, Plaintiff-Respondent,
v.
Calvin BOGGESS, Defendant-Appellant-Petitioner. No. 82-798-CR. Supreme Court of Wisconsin. Argued Oct. 5, 1983.
Decided Nov. 30, 1983.

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[115 Wis.2d 444] Donna L. Hintze, Asst. State Public Defender, for petitioner.

Daniel J. O'Brien, Asst. Atty. Gen., with Bronson C. LaFollette, Atty. Gen., for plaintiff-respondent.

BABLITCH, Justice.

Calvin Boggess petitions for review of a published decision of the court of appeals ¹ affirming a judgment of conviction for three counts of child abuse, contrary to sec. 940.201, Stats. ² [115 Wis.2d 445] Boggess contends that a

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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 Constitution ³ 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.

[115 Wis.2d 446] 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 [115 Wis.2d 447] 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

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that point, Boggess asked Hammel if she had a warrant, to which Hammel 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.

[115 Wis.2d 448] 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 [115 Wis.2d 449] privacy and security of individuals against arbitrary invasions by government officials. See Michigan v. Tyler, 436 U.S. 499, 504, 98 S.Ct. 1942, 1947, 56 L.Ed.2d 486 (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, 93 S.Ct. 2523, 2527, 37 L.Ed.2d 706 (1973). These exceptions have been "jealously and carefully drawn", Jones v. United States, 357 U.S. 493, 499, 78 S.Ct. 1253, 1257, 2 L.Ed.2d 1514 (1958), and the burden rests with those seeking exemption from the warrant requirement to prove that the exigencies made that course imperative. Coolidge v.

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New Hampshire, 403 U.S. 443, 455, 91 S.Ct. 2022, 2032, 29 L.Ed.2d 564 (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 [115 Wis.2d 450] 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, 201 N.W.2d 153. 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 [115 Wis.2d 451] found that a reasonable person under the circumstances would have thought an emergency existed, the search is invalid." 98 Wis.2d at 365, 297 N.W.2d 1.

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...