968.20(3)(b)
(b) Except as provided in
par. (a) or
sub. (1m) or
(4), a city, village, town or county or other custodian of a seized dangerous weapon or ammunition, if the dangerous weapon or ammunition is not required for evidence or use in further investigation and has not been disposed of pursuant to a court order at the completion of a criminal action or proceeding, shall make reasonable efforts to notify all persons who have or may have an authorized rightful interest in the dangerous weapon or ammunition of the application requirements under
sub. (1). If, within 30 days after the notice, an application under
sub. (1) is not made and the seized dangerous weapon or ammunition is not returned by the officer under
sub. (2), the city, village, town or county or other custodian may retain the dangerous weapon or ammunition and authorize its use by a law enforcement agency, except that a dangerous weapon used in the commission of a homicide or a handgun, as defined in
s. 175.35 (1) (b), may not be retained. If a dangerous weapon other than a firearm is not so retained, the city, village, town or county or other custodian shall safely dispose of the dangerous weapon or, if the dangerous weapon is a motor vehicle, as defined in
s. 340.01 (35), sell the motor vehicle following the procedure under
s. 973.075 (4). If a firearm or ammunition is not so retained, the city, village, town or county or other custodian shall ship it to the state crime laboratories and it is then the property of the laboratories. A person designated by the department of justice may destroy any material for which the laboratories have no use or arrange for the exchange of material with other public agencies. In lieu of destruction, shoulder weapons for which the laboratory has no use shall be turned over to the department of natural resources for sale and distribution of proceeds under
s. 29.934.
968.20(4)
(4) Any property seized, other than property covered under
s. 968.205, that poses a danger to life or other property in storage, transportation or use and that is not required for evidence or further investigation shall be safely disposed of upon command of the person in whose custody they are committed. The city, village, town or county shall by ordinance or resolution establish disposal procedures. Procedures may include provisions authorizing an attempt to return to the rightful owner substances which have a commercial value in normal business usage and do not pose an immediate threat to life or property. If enacted, any such provision shall include a presumption that if the substance appears to be or is reported stolen an attempt will be made to return the substance to the rightful owner.
968.20 Annotation
A claimant of seized property has the burden of showing that it is not contraband and is not needed as evidence in a possible retrial. Money may be applied to the payment of counsel fees. Welter v. Sauk County Clerk of Court,
53 Wis. 2d 178,
191 N.W.2d 852 (1971).
968.20 Annotation
Under sub. (1m) (b), "rightful owner" refers to an innocent person who owned a firearm or ammunition at the time an offense was committed. State v. Williams,
148 Wis. 2d 852,
436 N.W.2d 924 (Ct. App. 1989).
968.20 Annotation
Whether explicit photographs seized during the execution of a search warrant were contraband is discussed. In re Return of Property in State v. Benhoff,
185 Wis. 2d 600,
518 N.W.2d 307 (Ct. App. 1994).
968.20 Annotation
In the event that the district attorney elects not to bring a forfeiture action against seized property, a person seeking the return of the property may do so under this section, not s. 961.55 (3). Jones v. State,
226 Wis. 2d 565,
594 N.W.2d 738 (1999).
968.20 Annotation
The definition of contraband in s. 968.13 applies to this section. The burden is on the state to prove by the greater weight of the credible evidence that property is contraband not subject to return under this section. Jones v. State,
226 Wis. 2d 565,
594 N.W.2d 738 (1999).
968.20 Annotation
The term "use" in sub. (1m) (b) requires more than than the mere fact that a firearm is with a person. It must be part of the crime in some way. State v. Perez, 2000 WI App 115,
235 Wis. 2d 238,
612 N.W.2d 374.
968.20 Annotation
This section establishes an in rem proceeding to establish true ownership of property. It does not authorize granting a money judgment to the rightful owner when seized property is missing or mistakenly returned to another as a judgment in an in rem proceeding is valid only against the property and not against a defendant or a defendant's assets. City of Milwaukee v. Glass, 2001 WI 61,
243 Wis. 2d 636,
628 N.W.2d 343.
968.20 Annotation
Sub. (1m) (b) prohibits the return of a dangerous weapon to a person convicted of carrying a concealed and dangerous weapon. State v. Perez, 2001 WI 79,
244 Wis. 2d 532,
628 N.W.2d 820.
968.20 Annotation
Sub. (1m) (b) is subject to the excessive fines clause of the 8th amendment. State v. Bergquist, 2002 WI App 39,
250 Wis. 2d 792,
641 N.W.2d 179.
968.20 Annotation
Due process does not require states to give detailed instructions to owners who seek the return of lawfully seized property no longer needed in a police interrogation or criminal proceeding. West Covina v. Perkins,
525 U.S. 234, 142 L.Ed. 2d 636 (1999).
968.20 Annotation
This section applies although a criminal action has not been commenced; the property owner has the burden of moving for the return of the property. Supreme Video, Inc. v. Schulz,
808 F. Supp. 1380 (1992).
968.205
968.205
Preservation of certain evidence. 968.205(1)(a)
(a) "Custody" means actual custody of a person under a sentence of imprisonment, custody of a probationer, parolee, or person on extended supervision by the department of corrections, actual or constructive custody of a person pursuant to a dispositional order under
ch. 938, supervision of a person, whether in institutional care or on conditional release, pursuant to a commitment order under
s. 971.17 and supervision of a person under
ch. 980, whether in detention before trial or while in institutional care or on supervised release pursuant to a commitment order.
968.205(1)(b)
(b) "Discharge date" means the date on which a person is released or discharged from custody that resulted from a criminal action, a delinquency proceeding under
ch. 938, or a commitment proceeding under
s. 971.17 or
ch. 980 or, if the person is serving consecutive sentences of imprisonment, the date on which the person is released or discharged from custody under all of the sentences.
968.205(2)
(2) Except as provided in
sub. (3), if physical evidence that is in the possession of a law enforcement agency includes any biological material that was collected in connection with a criminal investigation that resulted in a criminal conviction, delinquency adjudication, or commitment under
s. 971.17 or
980.06, the law enforcement agency shall preserve the physical evidence until every person in custody as a result of the conviction, adjudication, or commitment has reached his or her discharge date.
968.205(3)
(3) Subject to
sub. (5), a law enforcement agency may destroy biological material before the expiration of the time period specified in
sub. (2) if all of the following apply:
968.205(3)(a)
(a) The law enforcement agency sends a notice of its intent to destroy the biological material to all persons who remain in custody as a result of the criminal conviction, delinquency adjudication, or commitment, and to either the attorney of record for each person in custody or the state public defender.
968.205(3)(b)
(b) No person who is notified under
par. (a) does either of the following within 90 days after the date on which the person received the notice:
968.205(3)(b)2.
2. Submits a written request to preserve the biological material to the law enforcement agency or district attorney.
968.205(3)(c)
(c) No other provision of federal or state law requires the law enforcement agency to preserve the biological material.
968.205(4)
(4) A notice provided under
sub. (3) (a) shall clearly inform the recipient that the biological material will be destroyed unless, within 90 days after the date on which the person receives the notice, either a motion for testing of the material is filed under
s. 974.07 (2) or a written request to preserve the material is submitted to the law enforcement agency.
968.205(5)
(5) If, after providing notice under
sub. (3) (a) of its intent to destroy biological material, a law enforcement agency receives a written request to preserve the material, the law enforcement agency shall preserve the material until the discharge date of the person who made the request or on whose behalf the request was made, subject to a court order issued under
s. 974.07 (7),
(9) (a), or
(10) (a) 5., unless the court orders destruction or transfer of the biological material under
s. 974.07 (9) (b) or
(10) (a) 5.
968.205 History
History: 2001 a. 16.
968.21
968.21
Search warrant; secrecy. A search warrant shall be issued with all practicable secrecy, and the complaint, affidavit or testimony upon which it is based shall not be filed with the clerk or made public in any way until the search warrant is executed.
968.22
968.22
Effect of technical irregularities. No evidence seized under a search warrant shall be suppressed because of technical irregularities not affecting the substantial rights of the defendant.
968.22 Annotation
The incorrect identification of a building's address in a warrant was a technical error and did not render the resulting search unreasonable when the search made was of the building identified by the informant, which was otherwise correctly identified in the warrant. State v. Nicholson,
174 Wis. 2d 542,
497 N.W.2d 791 (Ct. App. 1993).
968.22 Note
NOTE: See also the notes to Article I, section 11 of the Wisconsin constitution.
968.23
968.23
Forms. The following forms for use under this chapter are illustrative and not mandatory:
STATE OF WISCONSIN,
.... County.
AFFIDAVIT OR COMPLAINT.
In the .... court of the .... of ....
A. B., being duly sworn, says that on the .... day of ...., A. D., .... (year), in said county, in and upon certain premises in the (city, town or village) of .... in said county, occupied by .... and more particularly described as follows: (describe the premises) there are now located and concealed certain things, to wit: (describe the things to be searched for) (possessed for the purpose of evading or violating the laws of the state of Wisconsin and contrary to section .... of the Wisconsin statutes) (or, which things were stolen from their true owner, in violation of section .... of the Wisconsin statutes) (or, which things were used in the commission of (or may constitute evidence of) a crime to wit: (describe crime) committed in violation of section .... of the Wisconsin statutes).
The facts tending to establish the grounds for issuing a search warrant are as follows: (set forth evidentiary facts showing probable cause for issuance of warrant).
Wherefore, the said A. B. prays that a search warrant be issued to search such premises for the said property, and to bring the same, if found, and the person in whose possession the same is found, before the said court (or, before the .... court for .... County), to be dealt with according to law.
(Signed) A. B.
Subscribed and sworn to before me this .... day of ...., .... (year)
...., Judge of the .... Court.
STATE OF WISCONSIN,
.... County.
SEARCH WARRANT.
In the .... court of the .... of ....
THE STATE OF WISCONSIN, To the sheriff or any constable or any peace officer of said county:
Whereas, A. B. has this day complained (in writing) to the said court upon oath that on the .... day of ...., A. D., .... (year), in said county, in and upon certain premises in the (city, town or village) of .... in said county, occupied by .... .... and more particularly described as follows: (describe the premises) there are now located and concealed certain things, to wit: (describe the things to be searched for) (possessed for the purpose of evading or violating the laws of the state of Wisconsin and contrary to section .... of the Wisconsin statutes) (or, which things were stolen from their true owner, in violation of section .... of the Wisconsin statutes) (or which things were used in the commission of (or, may constitute evidence of) a crime, to wit: (describe crime) committed in violation of section .... of the Wisconsin statutes) and prayed that a search warrant be issued to search said premises for said property.
Now, therefore, in the name of the state of Wisconsin you are commanded forthwith to search the said premises for said things, and if the same or any portion thereof are found, to bring the same and the person in whose possession the same are found, and return this warrant within 48 hours before the said court (or, before the .... court for .... County), to be dealt with according to law.
Dated this .... day of ...., .... (year)
...., Judge of the .... Court.
ENDORSEMENT ON WARRANT
Received by me ...., .... (year), at .... o'clock ....M.
...., Sheriff (or peace officer)
RETURN OF OFFICER
State of Wisconsin
.... Court,
.... County.
I hereby certify that by virtue of the within warrant I searched the within named premises and found the following things: (describe things seized) and have the same now in my possession subject to the direction of the court.
Dated this .... day of ...., .... (year)
...., Sheriff (or peace officer)
968.23 History
History: 1997 a. 250.
968.24
968.24
Temporary questioning without arrest. After having identified himself or herself as a law enforcement officer, a law enforcement officer may stop a person in a public place for a reasonable period of time when the officer reasonably suspects that such person is committing, is about to commit or has committed a crime, and may demand the name and address of the person and an explanation of the person's conduct. Such detention and temporary questioning shall be conducted in the vicinity where the person was stopped.
968.24 History
History: 1993 a. 486.
968.24 Annotation
A defendant's flight from a police officer may, using the totality of circumstances test, justify a warrantless investigatory stop. State v. Jackson,
147 Wis. 2d 824,
434 N.W.2d 386 (1989).
968.24 Annotation
Actions suggesting to a reasonable police officer that an individual is attempting to flee is adequately suspicious to support an investigatory stop. State v. Anderson,
155 Wis. 2d 77,
454 N.W.2d 763 (1990).
968.24 Annotation
The Terry rule applies once a person becomes a valid suspect even though the encounter was initially consensual; if circumstances show investigation is not complete, the suspect does not have the right to terminate it. State v. Goyer,
157 Wis. 2d 532,
460 N.W.2d 424 (Ct. App. 1990).
968.24 Annotation
When a person's activity may constitute either a civil forfeiture or crime, an investigative stop may be performed. State v. Krier,
165 Wis. 2d 673,
478 N.W.2d 63 (Ct. App. 1991).
968.24 Annotation
A "showup" where police present a single suspect to a witness for identification, often at or near a crime scene shortly after the crime occurs, is suggestive but not impermissibly suggestive per se. State v. Garner,
207 Wis. 2d 520,
558 N.W.2d 916 (Ct. App. 1996).
968.24 Annotation
Detaining a person at his home, then transporting him about one mile to the scene of an accident in which he was involved, was an investigative stop and a reasonable part of an ongoing accident investigation. State v. Quartana,
213 Wis. 2d 440,
570 N.W.2d 618 (Ct. App. 1997).
968.24 Annotation
That the defendant is detained in a temporary Terry stop does not automatically mean Miranda warnings are not required. Whether the warnings are required depends on whether a reasonable person in the defendant's position would have considered himself or herself to be in custody. State v. Gruen,
218 Wis. 2d 581,
582 N.W.2d 728 (Ct. App. 1998).
968.24 Annotation
This section authorizes officers to demand identification only when a person is suspected of committing a crime, but does not govern the lawfulness of requests for identification in other circumstances. State v. Griffith, 2000 WI 72,
236 Wis. 2d 48,
613 N.W.2d 72.
968.24 Annotation
A police officer performing a Terry stop and requesting identification could perform a limited search for identifying papers when: 1) the information received by the officer was not confirmed by police records; 2) the intrusion on the suspect was minimal; 3) the officer observed that the suspect's pockets were bulging; and 4) the officer had experience with persons who claimed to have no identification when in fact they did. State v. Black, 2000 WI App 175,
238 Wis. 2d 203,
617 N.W.2d 210.
968.24 Annotation
Under Florida v. J.L, an anonymous tip giving rise to reasonable suspicion must bear indicia of reliability. That the tipster's anonymity is placed at risk indicates that the informant is genuinely concerned and not a fallacious prankster. Corroborated aspects of the tip also lend credibility; the corroborated actions of the suspect need be inherently criminal in and of themselves. State v. Williams, 2001 WI 21,
241 Wis. 2d 631,
623 N.W.2d 106.
968.24 Annotation
An anonymous tip regarding erratic driving from another driver celling from a cell phone contained sufficient indicia of reliability to justify an investigative stop when: 1) the informant was exposed to possible identification, and therefore possible arrest if the tip proved false; 2) the tip reported contemporaneous and verifiable observations regarding the driving, location, and vehicle; and 3) the officer verified many of the details in the tip. That the tip reasonably suggested intoxicated driving created an exigency strongly in favor of immediate police investigation without the necessity that the officer personally observe erratic driving, State v. Rutzinski, 2001 WI 22,
241 Wis. 2d 729,
623 N.W.2d 516.
968.24 Annotation
When a caller identifies himself or herself by name, placing his or her anonymity at risk, and the totality of the circumstances establishes a reasonable suspicion that criminal activity may be afoot, the police may execute a lawful investigative stop. Whether the caller gave correct identifying information, or whether the police ultimately could have verified the the information, the caller, by providing the information, risked that his or her identity would be discovered and cannot be considered anonymous. State v. Sisk, 2001 WI App 182,
247 Wis. 2d 443,
634 N.W.2d 877.
968.24 Annotation
It was reasonable to conduct a Terry search of a person who knocked on the door of a house while it was being searched for drugs pursuant to a warrant. State v. Kolp, 2002 WI App 17,
250 Wis. 2d 296,
640 N.W.2d 551.
968.24 Annotation
Terry and this section apply to confrontations between the police and citizens in public places only. For private residences and hotels, in the absence of a warrant, the police must have probable cause and exigent circumstances or consent to justify an entry. Reasonable suspicion is not a prerequisite to an officer's seeking consent to enter a private swelling. State v. Stout, 2002 WI App 41,
250 Wis. 2d 768,
641 N.W.2d 474.
968.24 Note
NOTE: See also the notes to Article I, section 11, to the Wisconsin Constitution.
968.25
968.25
Search during temporary questioning. When a law enforcement officer has stopped a person for temporary questioning pursuant to
s. 968.24 and reasonably suspects that he or she or another is in danger of physical injury, the law enforcement officer may search such person for weapons or any instrument or article or substance readily capable of causing physical injury and of a sort not ordinarily carried in public places by law abiding persons. If the law enforcement officer finds such a weapon or instrument, or any other property possession of which the law enforcement officer reasonably believes may constitute the commission of a crime, or which may constitute a threat to his or her safety, the law enforcement officer may take it and keep it until the completion of the questioning, at which time the law enforcement officer shall either return it, if lawfully possessed, or arrest the person so questioned.
968.25 History
History: 1993 a. 486.
968.25 Annotation
An investigatory stop-and-frisk for the sole purpose of discovering a suspect's identity was lawful under the facts of the case. State v. Flynn,
92 Wis. 2d 427,
285 N.W.2d 710 (1979).
968.25 Annotation
This section permits an officer to search the passenger compartment of a vehicle for weapons if an individual who recently occupied the vehicle is stopped under s. 968.24 and the officer "reasonably suspects that he or another is in danger of physical injury." State v. Moretto,
144 Wis. 2d 171,
423 N.W.2d 841 (1988).
968.25 Annotation
Terry tempered or torpedoed? The new law of stop and frisk. Lewis. WBB Aug. 1988.
968.25 Note
NOTE: See also the notes to Article I, section 11, to the Wisconsin Constitution.
