State v. Thiel

• Decision Date: 13 May 1994
• Docket Number: No. 92-0794-CR,92-0794-CR
• Citation: 183 Wis.2d 505,515 N.W.2d 847
• Parties: STATE of Wisconsin, Plaintiff-Appellant-Cross Respondent, v. Marvin C. THIEL, Defendant-Respondent-Cross Appellant.
• Court: Wisconsin Supreme Court

Page 847

515 N.W.2d 847

183 Wis.2d 505

STATE of Wisconsin, Plaintiff-Appellant-Cross Respondent, v. Marvin C. THIEL, Defendant-Respondent-Cross Appellant.

No. 92-0794-CR.

Supreme Court of Wisconsin.

Argued Oct. 12, 1993.

Decided May 13, 1994.

For the defendant-respondent-cross appellant there were briefs (in the court of appeals) by Richard Hahn and Holden & Hahn, S.C., Sheboygan and oral argument by Richard Hahn.

GESKE, Justice.

This case is before the court on certification by the court of appeals, pursuant to sec. (Rule) 809.61, Stats. The state appeals from a March 26, 1992, order of the circuit court for Sheboygan County, Gary Langhoff, Circuit Judge, suppressing inculpatory statements given to the police by the defendant, Marvin Thiel (Thiel), who was charged with feloniously exhibiting to a child material which is harmful to children and with feloniously attempting to exhibit harmful material to a child. Thiel cross-appeals from that part of the March 26 order which denied his motions regarding deficiencies in the preliminary hearing and in the charging decision; lack of probable cause in the affidavit supporting the request for a search warrant; overbreadth of the search warrant; and the involuntariness of his statements given to police. Thiel also appeals from a November 19, 1991, order wherein Judge Langhoff denied his motion to dismiss the criminal complaint on grounds of lack of probable cause and the constitutionality of sec. 948.11, Stats.

The questions certified by the court of appeals are as follows:

(1) Was Thiel's inquiry of the police--"Do you think I need an attorney?"--sufficient to invoke his right to counsel?

Consistent with our holding in State v. Walkowiak, 183 Wis.2d 478, 480, 486, 515 N.W.2d 863, 865, 867, we conclude that such a statement is equivocal and, therefore, insufficient (2) Is sec. 948.11, Stats., which regulates the dissemination of obscene materials "harmful to children," unconstitutional due to overbreadth?

to invoke the right to counsel. Further, we hold that upon an equivocal inquiry, all interrogation must cease until the ambiguity is resolved.

We hold that sec. 948.11, Stats., is not unconstitutionally overbroad. Rather, the legislature has properly adapted the Miller obscenity test ¹ in order to assess what materials are harmful to minors so as to protect the well-being of youth without unduly burdening the first amendment rights of adults to view, sell or examine materials not considered obscene for them. Nor are the first amendment rights of adults unduly burdened by incorporating the term "exhibit" in the statute. In sec. 948.11(2)(a) and (b), we construe the term "exhibit" to mean "to offer or present for inspection." This definition is in harmony with the statutory focus upon the affirmative conduct of an individual toward a specific minor or minors.

Additionally, this court heard arguments on several issues not certified by the court of appeals. First, Thiel argues that the statutory exemption provided for libraries and educational institutions in sec. 948.11(4), Stats., violates his right to equal protection guaranteed by the fourteenth amendment to the United States Constitution and art. I, sec. 1 of the Wisconsin Constitution, thereby requiring strict scrutiny. We disagree and hold that sec. 948.11 is a constitutional variable obscenity statute. We conclude that the library and educational institution exception is reasonable and rationally related to the fundamental purpose of the legislation.

Second, Thiel challenges the sufficiency of the facts in the amended complaint and evidence presented at the preliminary hearing to support the charge of attempt to exhibit harmful materials to a child. We disagree and conclude that the facts in the amended complaint as well as evidence presented at the preliminary hearing established probable cause that Thiel committed the crime of attempt to exhibit harmful materials to a minor, in violation of secs. 948.11(2)(a) and 939.32(1), Stats.

Finally, Thiel argues that the search warrant was not supported by probable cause and was not reasonably specific so as to survive fourth amendment scrutiny. We disagree. The magistrate in this case properly applied the "totality of the circumstances" test enunciated in Illinois v. Gates, 462 U.S. 213, 230, 103 S.Ct. 2317, 2328, 76 L.Ed.2d 527 (1983), to determine that a fair probability existed that evidence of a crime would be found at the Thiel residence and place of business. Additionally, given the nature of the activity under investigation and the age of the alleged victim, the search warrant was reasonably specific to satisfy fourth amendment scrutiny.

For purposes of this appeal, we rely on the facts alleged in the complaint and testified to at the preliminary hearing and the suppression hearing. On October 15, 1991, Thiel was served with a criminal complaint alleging one count of feloniously exhibiting harmful materials to a child, in violation of sec. 948.11(2)(a), Stats., ² and one count of feloniously attempting to exhibit harmful materials to a child, in violation of secs. 948.11(2)(a) and 939.32(1), Stats. ³ These charges were the result of an incident which occurred on August 26, 1991. On that day, J.L.L., a 10-year-old girl, entered Thiel's place of business, C & M Specialty Sales, in Sheboygan, Wisconsin. The store is known by patrons as a hobby shop or art supply store--a place frequented by children in order to purchase On August 29, 1991, J.L.L. gave Sheboygan police an account of what happened to her in Thiel's store three days earlier. J.L.L. stopped by the store with her younger sister to see what items she could afford to buy. From behind the store counter, Thiel answered questions about merchandise prices. Thiel and J.L.L. then had a conversation about birthdays, particularly the upcoming birthday of J.L.L. It was during this conversation that J.L.L. saw Thiel take a booklet from his desk drawer. Thiel then showed J.L.L. the photographs in the booklet, photographs of "people with no clothes on," and stated to her that the people in the pictures were involved in "S-E-X." In one of the pictures, J.L.L. saw a man on top of a woman, and "Marv" told her the man was putting something inside the woman so the woman could have a baby.

candy, pencils, and other miscellaneous items. J.L.L. had been to this store on other occasions and knew the proprietor as a man named "Marv."

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

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

While executing the search warrant, the detectives made contact with Thiel. He was informed of the nature of the warrant as well as his Miranda rights. ⁵ Thiel indicated he was willing to talk with the officers and signed a waiver form, acknowledging his understanding of those rights. He then showed the police where they could find his X-rated movies. He denied being in possession of photos depicting sexual activity or showing any sexually explicit photos to children. Following the search, Thiel was taken to the Sheboygan Police Department, where he was once again informed of his Miranda rights, and, for a second time, Thiel signed the waiver form. When asked by the interrogating officer if he understood the import of the Miranda warnings, Thiel said, "Do you think I need a lawyer?" The detective responded, "That's up to you." After a momentary pause, Thiel signed the form.

During the subsequent interrogation, Thiel initially denied any knowledge of the incident with J.L.L. However, he later admitted showing her the "Sexual Secrets of the Zodiac" booklet only after J.L.L. started a conversation with him about sexual activity. ⁶ After telling police that he did offer to take J.L.L. into his residence to show her videos, Thiel further stated that he has had a problem with an attraction to children for the past six years.

A criminal complaint was filed against Thiel on September 18, 1991, which charged him with exhibiting harmful materials to a minor, in violation of sec. 948.11(2)(a), Stats., and attempted child enticement, in violation of sec. 948.07(5), Stats. An amended complaint was filed October 15, 1991, which modified Count 2 in order to delete the allegation of attempted child enticement. The initial charge was replaced with attempt to exhibit harmful material to a minor, in violation of secs. 948.11(2)(a) and 939.32(1), Stats. Thiel challenged both counts of the amended complaint for the following reasons: (1) sec. 948.11, Stats., was unconstitutionally overbroad; (2) the complaint did not establish probable cause; (3) there was insufficient evidence to establish attempt; and (4) sec. 948.11(1), (2), and (4), Stats., violated his right to equal protection of the laws. At Thiel's preliminary hearing, the court denied his motion to dismiss the complaint. At the conclusion of that hearing, the court found probable cause to believe that a felony was committed by Thiel, ordering his bindover for trial. The circuit court denied Thiel's motion to stay court proceedings, which resulted in the...