Search of daycare was permissible, judge rules
A judge has ruled that a 2019 search of a home-based daycare in Abbotsford was valid — and the evidence of child abuse uncovered is admissible — even though the police officer involved in the search did not have a warrant.
An attorney representing Naomi and Gary Konieczny, owners of the nowclosed daycare at 205 W. Elm St., had filed a motion to suppress all evidence gathered in the search, which included two bedrooms with restrained children left alone in high-chairs, car seats and playpens, one of which had a piece of plywood over the top with nails sticking out. Naomi and Gary, along with their daughter, Rachel Konieczny, have been charged with multiple felonies related to the alleged mistreatment of children at the daycare.
In a motion filed in June, defense attorney Karl Kelz argued that a search of the Konieczny home on April 3, 2019, was unconstitutional because Colby-Abbotsford police officer Chris Brandner did not have a warrant when he entered a pair of back bedrooms to assist social workers. Brandner, who has since left the CAPD to take a job with the Marathon County Sheriff’s Department, was accompanied at the house by social workers from Clark and Marathon counties and licensing agents from the Wisconsin Department of Children and Families (DCF).
DCF agent April Callihan alerted Brandner to the presence of several restrained children in two back bedrooms, and he assisted in removing them from the rooms.
According to briefs filed in the case, Gary Konieczny invited Brandner to enter the house, but neither he nor Naomi gave him permission to enter the bedrooms.
Clark County District Attorney Melissa Inlow argued that the Koniecznys had a diminished expectation of privacy because they were operating a daycare out of their home and were subject to inspections by child services. The DCF agents were at the house to investigate reports of too many children being there at once, and Brandner was present as part of an investigation into accusations of child abuse and neglect.
At a court hearing on Aug. 4, Brandner testified that Callihan yelled to him in an “anxious tone” to come to the back of the house, and he did so without first asking permission from the Koniecznys.
Inlow argued that Brandner’s response was in line with the “emergency doctrine” upheld by the Wisconsin Supreme Court, which allows officers to make a “warrantless intrusion” if they reasonably believe someone is in need of immediate aid or assistance.
Judge John Radcliffe, who is substituting for Judge Lyndsey Brunette in the Clark County case, said last week that he did not believe the circumstances met the criteria for the “emergency doctrine.”
Even though Callihan called out to Brandner to come and see what she found, the judge said, “I don’t think that creates an emergency where law enforcement is allowed to rush into the home and search the property of the occupants.”
Judge Radcliffe, however, was persuaded by another argument put forth by the DA involving what is called the “community caretaker exception” to the Fourth Amendment requirement for a warrant.
This legal principle acknowledges that the public expects law enforcement to act as “community caretakers” by responding to public safety threats, which is separate from their duty to investigate crimes.
“There is no black-and-white line between those two functions, and actually it’s somewhat of a blurred line in most cases, as it is here,” Judge Radcliffe said.
In making his decision, the judge said he was required to balance the privacy interests of the defendants against the public interest in ensuring the safety of children. He considered a variety of factors, such as the fact that Brandner had initially been let into the house and that the evidence in question was originally discovered by state agents who were there for a lawful inspection.
Judge Radcliffe said this was “not an easy case” to decide, citing divided court decisions involving similar situations.
“Obviously we want law enforcement officers to seek warrants wherever they can in order to validly protect the constitutional interest of homeowners,” he said. “On the other hand, we also want officers to respond to emergency situations in the community where they believe there could be somebody in harm’s way.”
The judge’s reasoning echoed an argument made by the DA in an Oct. 16 brief in support of denying the motion to suppress.
“Clearly, the public interest in protecting these young children outweighs this minimal intrusion into the Konieczny residence,” Inlow wrote.
In other action, Judge Radcliffe also denied a motion to suppress statements made by Gary Konieczny to police during three separate interviews in April of 2019, two of which happened at the police station in Abbotsford.
The judge was asked to consider the impacts of a traumatic head injury Gary had previously suffered that affected his memory and cognitive abilities.
When looking at the “totality of circumstances” surrounding the interviews, Judge Radcliffe found that Gary was not subjected to coercion by police and made his statements voluntarily.
The judge said the defense attorney did raise “a relevant issue” regarding his client’s mental condition, and he noted that Gary “had difficultly responding” to some of the questions, but he found no evidence of improper interrogation techniques by the police.
“Under the totality of the circumstances, I find that the statements are voluntary and admissible under the Fifth Amendment,” he said.
A status conference in the case was scheduled for Dec. 7 in Clark County Circuit Court. Rachel Konieczny, who has hired her own legal counsel, is scheduled to appear in court on Dec. 1 for a status conference in her case.
Gary Konieczny
