.... 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.
Effective date note
NOTE: Subd. 2. is shown as amended eff. 2-1-03 by
2001 Wis. Act 109. Prior to 2-1-03 it reads:
Effective date text
2. Arrested for any misdemeanor under s. 167.30, 940.19, 941.20 (1), 941.23, 941.237, 941.24, 948.60, 948.605 (2) (a) or 948.61.
968.255(1)(a)3.
3. Taken into custody under
s. 938.19 and there are reasonable grounds to believe the juvenile has committed an act which if committed by an adult would be covered under
subd. 1. or
2.
968.255(1)(a)4.
4. Arrested for any misdemeanor not specified in
subd. 2., any other violation of state law punishable by forfeiture or any local ordinance if there is probable cause to believe the person is concealing a weapon or a thing which may constitute evidence of the offense for which he or she is detained.
968.255(1)(b)
(b) "Strip search" means a search in which a detained person's genitals, pubic area, buttock or anus, or a detained female person's breast, is uncovered and either is exposed to view or is touched by a person conducting the search.
968.255(2)
(2) No person may be the subject of a strip search unless he or she is a detained person and if:
968.255(2)(a)
(a) The person conducting the search is of the same sex as the person detained, unless the search is a body cavity search conducted under
sub. (3);
968.255(2)(b)
(b) The detained person is not exposed to the view of any person not conducting the search;
968.255(2)(c)
(c) The search is not reproduced through a visual or sound recording;
968.255(2)(d)
(d) A person conducting the search has obtained the prior written permission of the chief, sheriff or law enforcement administrator of the jurisdiction where the person is detained, or his or her designee, unless there is probable cause to believe that the detained person is concealing a weapon; and
968.255(2)(e)
(e) A person conducting the search prepares a report identifying the person detained, all persons conducting the search, the time, date and place of the search and the written authorization required by
par. (d), and provides a copy of the report to the person detained.
968.255(3)
(3) No person other than a physician, physician assistant or registered nurse licensed to practice in this state may conduct a body cavity search.
968.255(4)
(4) A person who intentionally violates this section may be fined not more than $1,000 or imprisoned not more than 90 days or both.
968.255(5)
(5) This section does not limit the rights of any person to civil damages or injunctive relief.
968.255(6)
(6) A law enforcement agency, as defined in
s. 165.83 (1) (b), may promulgate rules concerning strip searches which at least meet the minimum requirements of this section.
968.255(7)
(7) This section does not apply to a search of any person who:
968.255(7)(a)
(a) Is serving a sentence, pursuant to a conviction, in a jail, state prison or house of correction.
968.255 Annotation
A visual body cavity search is more intrusive than a strip search. It is not objectively reasonable for police to conclude that consent to a strip search includes consent to scrutiny of body cavities. State v. Wallace, 2002 WI App 61,
251 Wis. 2d 625,
642 N.W.2d 549.
968.255 Annotation
Intrusive searches of the mouth, nose or ears are not covered by sub. (3). However, searches of those body orifices should be conducted by medical personnel to comply with the 4th and 5th amendments.
71 Atty. Gen. 12.
968.256
968.256
Search of physically disabled person. 968.256(1)
(1) In this section, "physically disabled person" means a person who requires an assistive device for mobility, including, but not limited to, a wheelchair, brace, crutch or artificial limb.
968.256(2)
(2) A search of a physically disabled person shall be conducted in a careful manner. If a search of a physically disabled person requires the removal of an assistive device or involves a person lacking sensation in some portion of his or her body, the search shall be conducted with extreme care by a person who has had training in handling physically disabled persons.
968.256 History
History: 1979 c. 240.
968.26
968.26
John Doe proceeding. If a person complains to a judge that he or she has reason to believe that a crime has been committed within his or her jurisdiction, the judge shall examine the complainant under oath and any witnesses produced by him or her and may, and at the request of the district attorney shall, subpoena and examine other witnesses to ascertain whether a crime has been committed and by whom committed. The extent to which the judge may proceed in the examination is within the judge's discretion. The examination may be adjourned and may be secret. Any witness examined under this section may have counsel present at the examination but the counsel shall not be allowed to examine his or her client, cross-examine other witnesses or argue before the judge. If it appears probable from the testimony given that a crime has been committed and who committed it, the complaint may be reduced to writing and signed and verified; and thereupon a warrant shall issue for the arrest of the accused. Subject to
s. 971.23, if the proceeding is secret, the record of the proceeding and the testimony taken shall not be open to inspection by anyone except the district attorney unless it is used by the prosecution at the preliminary hearing or the trial of the accused and then only to the extent that it is so used. A court, on the motion of a district attorney, may compel a person to testify or produce evidence under
s. 972.08 (1). The person is immune from prosecution as provided in
s. 972.08 (1), subject to the restrictions under
s. 972.085.
968.26 History
History: 1989 a. 122;
1991 a. 88,
223,
315.
968.26 Annotation
A defendant must be allowed to use testimony of witnesses at a secret John Doe proceeding to impeach the same witnesses at the trial, even if the prosecution does not use the John Doe testimony. Myers v. State,
60 Wis. 2d 248,
208 N.W.2d 311 (1973).
