Chapter 968

.... 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) an offense to wit: (describe offense) 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) an offense, to wit: (describe offense) 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; 2015 a. 183.

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 Suspicious behavior of a driver and passenger justified detention. State v. Goebel, 103 Wis. 2d 203, 307 N.W.2d 915 (1981).

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, 392 U.S. 1 (1968), rule applies once a person becomes a valid suspect even though the encounter is 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), 96-0168.

968.24 Annotation Detaining a person at the person’s home, then transporting the person about one mile to the scene of an accident in which the person 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), 97-0695. But see State v. Cundy, 2023 WI App 41, 409 Wis. 2d 34, 995 N.W.2d 266, 22-0540.

968.24 Annotation That the defendant is detained in a temporary Terry, 392 U.S. 1 (1968), 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), 96-2588.

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, 98-0931.

968.24 Annotation A police officer performing a Terry, 392 U.S. 1 (1968), 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, 99-1686.

968.24 Annotation Under Florida v. J.L., 529 U.S. 266 (2000), 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, 96-1821.

968.24 Annotation An anonymous tip regarding erratic driving from another driver calling 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, 98-3541.

968.24 Annotation When a caller identifies himself or herself by name, placing the caller’s 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 information, the caller, by providing the information, risked that the caller’s 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, 00-2614.

968.24 Annotation It was reasonable to conduct a Terry, 392 U.S. 1 (1968), 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, 01-0549.

968.24 Annotation Terry, 392 U.S. 1 (1968), 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 dwelling. State v. Stout, 2002 WI App 41, 250 Wis. 2d 768, 641 N.W.2d 474, 01-0904.

968.24 Annotation To perform a protective search for weapons, an officer must have reasonable suspicion that a person may be armed and dangerous. A court may consider an officer’s belief that the officer’s or another’s safety is threatened in finding reasonable suspicion, but such a belief is not a prerequisite to a valid search. There is no per se rule justifying a search any time an individual places the individual’s hands in the individual’s pockets contrary to police orders. The individual’s hand movements must be considered under the totality of the circumstances of the case. State v. Kyles, 2004 WI 15, 269 Wis. 2d 1, 675 N.W.2d 449, 02-1540.

968.24 Annotation Weaving within a single traffic lane does not alone give rise to the reasonable suspicion necessary to conduct an investigative stop of a vehicle. The reasonableness of a stop must be determined based on the totality of the facts and circumstances. State v. Post, 2007 WI 60, 301 Wis. 2d 1, 733 N.W.2d 634, 05-2778.

968.24 Annotation The potential availability of an innocent explanation does not prohibit an investigative stop. If any reasonable inference of wrongful conduct can be objectively discerned, notwithstanding the existence of other innocent inferences that could be drawn, the officers have the right to temporarily detain the individual for the purpose of inquiry. State v. Limon, 2008 WI App 77, 312 Wis. 2d 174, 751 N.W.2d 877, 07-1578.

968.24 Annotation When a person who is temporarily detained for investigation pursuant to a Terry, 392 U.S. 1 (1968), stop is then moved to another location, courts conduct a two-part inquiry: 1) was the person moved within the vicinity of the stop; and 2) was the purpose in moving the person within the vicinity reasonable? Ten miles is too distant a transportation to be within the vicinity so long as the temporary detention is supported by no more than a reasonable suspicion. In order for the transporting of a defendant to a hospital that was not in the vicinity of the stop to have been lawful, it must have been supported by probable cause to arrest or by a reasonable exercise of the community caretaker function. State v. Blatterman, 2015 WI 46, 362 Wis. 2d 138, 864 N.W.2d 26, 13-2107.

968.24 Annotation Although this section and s. 345.22 pertain only to crimes and violations of traffic regulations, neither statute forecloses traffic stops to enforce non-traffic civil forfeiture offenses. State v. Iverson, 2015 WI 101, 365 Wis. 2d 302, 871 N.W.2d 661, 14-0515.

968.24 Annotation The statement in Popke, 2009 WI 37, that a police officer may conduct a traffic stop when, under the totality of the circumstances, the officer has grounds to reasonably suspect that a crime or traffic violation has been or will be committed, did not purport to circumscribe the universe of possible scenarios within which traffic stops permissibly may occur, or to make such limits contingent on whether the legislature has titled a particular law a “traffic regulation.” A reasonable suspicion that a violation of the littering statute, s. 287.81, a non-traffic civil forfeiture offense, had occurred justified a brief and limited traffic stop. The more onerous standard of probable cause would also therefore justify a traffic stop. State v. Iverson, 2015 WI 101, 365 Wis. 2d 302, 871 N.W.2d 661, 14-0515.

968.24 Annotation The principles of Terry, 392 U.S. 1 (1968), permit a state to require a suspect to disclose the suspect’s name in the course of a Terry stop and allow imposing criminal penalties for failing to do so. Hiibel v. Sixth Judicial District Court, 542 U.S. 177, 124 S. Ct. 2451, 159 L. Ed. 2d 292 (2004).

968.24 Annotation When the defendant’s refusal to disclose his name was not based on any articulated real and appreciable fear that his name would be used to incriminate him, or that it would furnish a link in the chain of evidence needed to prosecute him, application of a criminal statute requiring disclosure of the person’s name when the police officer reasonably suspected the person had committed a crime did not violate the protection against self-incrimination. Hiibel v. Sixth Judicial District Court, 542 U.S. 177, 124 S. Ct. 2451, 159 L. Ed. 2d 292 (2004).

968.24 Annotation Cell Phone Tips of Crime and ‘Reasonable Suspicion.’ Anderegg. Wis. Law. June 2005.

968.24 Note NOTE: See also the notes to article I, section 11, of 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 A stop-and-frisk was not an unreasonable search and seizure. State v. Williamson, 113 Wis. 2d 389, 335 N.W.2d 814 (1983).

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 the officer or another is in danger of physical injury. State v. Moretto, 144 Wis. 2d 171, 423 N.W.2d 841 (1988).

968.25 Annotation Although Terry, 392 U.S. 1 (1968), provides only for an officer to conduct a carefully limited search of the outer clothing in an attempt to discover weapons that might be used to assault the officer, under the circumstances of this case, the search was properly broadened to encompass the opening of the defendant’s purse, which was essentially an extension of her person when the purse was accessible by her. State v. Limon, 2008 WI App 77, 312 Wis. 2d 174, 751 N.W.2d 877, 07-1578.

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, of the Wisconsin Constitution.

968.255 968.255 Strip searches.

968.255(1) (1) In this section:

968.255(1)(a) (a) “Detainee” means any of the following:

968.255(1)(a)1. 1. A person arrested for any felony.

968.255(1)(a)2. 2. A person arrested for any misdemeanor under s. 167.30 (1), 940.19, 941.20 (1), 941.23, 941.231, 941.237, 948.60, or 948.61.

968.255(1)(a)3. 3. A person 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. A person 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)(a)5. 5. A person arrested or otherwise lawfully detained or taken into custody, if the person will be incarcerated, imprisoned, or otherwise detained in a jail or prison with one or more other persons. Subject to subd. 3., for the purpose of this subdivision, “detainee” does not include a juvenile who is taken into custody under s. 938.19 and held in custody under s. 938.209.

968.255(1)(ag) (ag) “Jail” includes municipal prisons and rehabilitation facilities established under s. 59.53 (8) by whatever name they are known, but does not include lockup facilities.

968.255(1)(ar) (ar) “Lockup facilities” means those facilities of a temporary place of detention at a police station that are used exclusively to hold persons under arrest until they can be brought before a court and that are not used to hold persons pending trial who have appeared in court or have been committed to imprisonment for nonpayment of fines or forfeitures.

968.255(1)(b) (b) “Strip search” means a search in which a detainee’s genitals, pubic area, buttock or anus, or a female detainee’s breast, is uncovered and either is exposed to view or is touched by a person conducting the search, except that if the detainee is a person defined in par. (a) 5., “strip search” means a search in which a detainee’s genitals, pubic area, buttock or anus, or a female detainee’s breast, is uncovered and exposed to view but is not touched by a person conducting the search unless the touching is necessary to gain the detainee’s cooperation with the search or unless the touching is necessary to assist a disabled detainee’s cooperation with the search.

968.255(2) (2) No person may conduct a strip search unless all of the following apply:

968.255(2)(ag) (ag) The person subject to the search is a detainee.

968.255(2)(am) (am) The person conducting the search is of the same sex as the detainee, unless the search is a body cavity search conducted under sub. (3).

968.255(2)(b) (b) The detainee 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 detainee is concealing a weapon.

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 detainee.

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. A physician, physician assistant, or registered nurse acting under this section, the employer of any such person, and any health care facility where the search is conducted have immunity from civil or criminal liability under s. 895.535.

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) Each law enforcement agency, as defined in s. 165.83 (1) (b), and each facility where a strip search may be conducted pursuant to this section, shall establish written policies and procedures concerning strip searches which at least meet the minimum requirements of this section and shall provide annual training regarding the policies and procedures to any employee or agent of the agency or facility who may conduct a strip search.

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(7)(b) (b) Is placed in or transferred to a juvenile correctional facility, as defined in s. 938.02 (10p), or a secured residential care center for children and youth, as defined in s. 938.02 (15g).