968.04 History
History: 1973 c. 12;
1975 c. 39,
41,
199;
1977 c. 449 ss.
480,
497;
1983 a. 535; Sup. Ct. Order, 141 Wis. 2d xiii (1987);
1987 a. 151;
1993 a. 486;
1997 a. 250.
968.04 Note
Judicial Council Note, 1988: Sub. (1) (d) permits an arrest warrant or summons to be issued upon the basis of sworn recorded testimony received by telephone on request of the person seeking the warrant or summons unless good cause to the contrary appears. The telephone procedure permits faster processing of the application, while preserving a record of the basis for subsequent review. [Re Order effective Jan. 1, 1988]
968.04 Annotation
To be constitutionally sufficient to support the issuance of an arrest warrant and to show probable cause, a complaint must contain the essential facts constituting the offense charged. A complaint was fatally defective in merely repeating the language of the statute allegedly violated. State v. Williams,
47 Wis. 2d 242,
177 N.W.2d 611 (1970).
968.04 Annotation
A warrant was properly issued upon sworn testimony of a sheriff that an accomplice had confessed and implicated the defendant, since reliable hearsay is permitted and a confession is not inherently untrustworthy. Okrasinski v. State,
51 Wis. 2d 210,
186 N.W.2d 314 (1971).
968.04 Annotation
When a complaint alleged that a reliable informant procured a sample of drugs from the defendant's apartment, the inference that the informant observed the defendant's possession of a controlled substance satisfied the Aguilar test. Scott v. State,
73 Wis. 2d 504,
243 N.W.2d 215 (1976).
968.04 Note
NOTE: See also the notes to Article I, section 11 of the Wisconsin constitution.
968.05
968.05
Corporations or limited liability companies: summons in criminal cases. 968.05(1)
(1) When a corporation or limited liability company is charged with the commission of a criminal offense, the judge or district attorney shall issue a summons setting forth the nature of the offense and commanding the corporation or limited liability company to appear before a court at a specific time and place.
968.05(2)
(2) The summons for the appearance of a corporation or limited liability company may be served as provided for service of a summons upon a corporation or limited liability company in a civil action. The summons shall be returnable not less than 10 days after service.
968.05 History
History: 1993 a. 112.
968.05 Cross-reference
Cross-reference: See s.
973.17 for provision for default judgment against a corporation.
968.06
968.06
Indictment by grand jury. Upon indictment by a grand jury a complaint shall be issued, as provided by
s. 968.02, upon the person named in the indictment and the person shall be entitled to a preliminary hearing under
s. 970.03, and all proceedings thereafter shall be the same as if the person had been initially charged under
s. 968.02 and had not been indicted by a grand jury.
968.06 History
History: 1979 c. 291.
968.07
968.07
Arrest by a law enforcement officer. 968.07(1)
(1) A law enforcement officer may arrest a person when:
968.07(1)(a)
(a) The law enforcement officer has a warrant commanding that such person be arrested; or
968.07(1)(b)
(b) The law enforcement officer believes, on reasonable grounds, that a warrant for the person's arrest has been issued in this state; or
968.07(1)(c)
(c) The law enforcement officer believes, on reasonable grounds, that a felony warrant for the person's arrest has been issued in another state; or
968.07(1)(d)
(d) There are reasonable grounds to believe that the person is committing or has committed a crime.
968.07(2)
(2) A law enforcement officer making a lawful arrest may command the aid of any person, and such person shall have the same power as that of the law enforcement officer.
968.07(3)
(3) If the alleged violator under
s. 948.55 (2) or
948.60 (2) (c) is or was the parent or guardian of a child who is injured or dies as a result of an accidental shooting, no law enforcement officer may arrest the alleged violator until at least 7 days after the date of the shooting.
968.07 History
History: 1991 a. 139;
1993 a. 486.
968.07 Annotation
If the police have probable cause for arrest without a warrant, they may break down a door to effect the arrest after announcing their purpose in demanding admission. The remedy for excessive force is not dismissal of the criminal charge. Nadolinski v. State,
46 Wis. 2d 259,
174 N.W.2d 483 (1970).
968.07 Annotation
An arrest based solely on evidence discovered after an illegal search is invalid. State ex rel. Furlong v. Waukesha County Court,
47 Wis. 2d 515,
177 N.W.2d 333 (1970).
968.07 Annotation
While probable cause for an arrest without a warrant requires that an officer have more than a mere suspicion, the officer does not need the same quantum of evidence necessary for conviction, but information that would lead a reasonable officer to believe that guilt is more than a possibility, which information can be based in part on hearsay. State v. DiMaggio,
49 Wis. 2d 565,
182 N.W.2d 466 (1971).
968.07 Annotation
An officer need not be in possession of a warrant to make a valid arrest. Schill v. State,
50 Wis. 2d 473,
184 N.W.2d 858 (1971).
968.07 Annotation
An arrest was valid when a defendant, approached by an officer, voluntarily stated that he assumed they would be looking for him because he had been the last person to see the victim alive. Schenk v. State,
51 Wis. 2d 600,
187 N.W.2d 853 (1971).
968.07 Annotation
Police have grounds to arrest without a warrant when they have information from a reliable informer that a crime is to be committed, when they check the information, and when the defendants attempt to escape when stopped. Molina v. State,
53 Wis. 2d 662,
193 N.W.2d 874 (1972).
968.07 Annotation
A person is not under arrest and the officer is not attempting an arrest, so far as the right to use force is concerned, until the person knows or should know that the person restraining or attempting to restrain him or her is an officer. Celmer v. Quarberg,
56 Wis. 2d 581,
203 N.W.2d 45 (1972).
968.07 Annotation
An arrest pursuant to a valid warrant is legal even though the officer entered the defendant's home without warning or knocking; therefore the court had personal jurisdiction. State v. Monsoor,
56 Wis. 2d 689,
203 N.W.2d 20 (1973).
968.07 Annotation
The fact that a witness had identified the defendant by photograph was sufficient to support an arrest, even though the witness was not allowed to identify the defendant at the trial. State v. Wallace,
59 Wis. 2d 66,
207 N.W.2d 855 (1973).
968.07 Annotation
When an officer, mistakenly believing in good faith that the occupants of a car had committed a crime, stopped a car and arrested the occupants, the arrest was illegal, but a shotgun in plain sight on the back seat could be seized and used in evidence. State v. Taylor,
60 Wis. 2d 506,
210 N.W.2d 873 (1973).
968.07 Annotation
Enforcement officers may make constitutionally valid arrests without warrants under sub. (1) (d) if they have reasonable grounds to believe that the person has committed a crime. Rinehart v. State,
63 Wis. 2d 760,
218 N.W.2d 323 (1974).
968.07 Annotation
The police force is considered as a unit. If there is a police-channeled communication to the arresting officer who acts in good faith, the arrest is based on probable cause when facts exist within the police department. State v. Shears,
68 Wis. 2d 217,
229 N.W.2d 103 (1975).
968.07 Annotation
When bags were heavy and contained brick-like objects obtained in an overnight trip and the defendant's house was under surveillance, there was probable cause for arrest for possession of marijuana. State v. Phelps,
73 Wis. 2d 313,
243 N.W.2d 213 (1976).
968.07 Annotation
The test under sub. (1) (d) is whether the arresting officer could have obtained a warrant on the basis of information known prior to the arrest. Police may rely on eyewitness reports of citizen informers. Loveday v. State,
74 Wis. 2d 503,
247 N.W.2d 116 (1976).
968.07 Annotation
An officer may make a warrantless arrest for an ordinance violation if a statutory counterpart of the ordinance exists. City of Madison v. Ricky Two Crow,
88 Wis. 2d 156,
276 N.W.2d 359 (Ct. App. 1979).
968.07 Annotation
Evidence obtained during a mistaken arrest is admissible as long as the arresting officer acted in good faith and had reasonable, articulable grounds to believe that the suspect was the intended arrestee. State v. Lee,
97 Wis. 2d 679,
294 N.W.2d 547 (Ct. App. 1980).
968.07 Annotation
An arrest by an out-of-state police officer was a valid citizen's arrest. State v. Slawek,
114 Wis. 2d 332,
338 N.W.2d 120 (Ct. App. 1983).
968.07 Annotation
When a defendant's mother admitted police into her home to talk to her son, the subsequent arrest of her son was valid. State v. Rodgers,
119 Wis. 2d 102,
349 N.W.2d 453 (1984).
968.07 Annotation
Municipal police may arrest and detain a person for whom another municipality in another county has issued a civil arrest warrant. 61 Atty. Gen. 275.
968.07 Annotation
A city police officer is a law enforcement officer and traffic officer within s. 345.22. 61 Atty. Gen. 419.
968.07 Note
NOTE: See also the notes to Article I, section 11 of the Wisconsin Constitution.
968.075
968.075
Domestic abuse incidents; arrest and prosecution. 968.075(1)(a)
(a) "Domestic abuse" means any of the following engaged in by an adult person against his or her spouse or former spouse, against an adult with whom the person resides or formerly resided or against an adult with whom the person has a child in common:
968.075(1)(a)1.
1. Intentional infliction of physical pain, physical injury or illness.
968.075(1)(a)4.
4. A physical act that may cause the other person reasonably to fear imminent engagement in the conduct described under
subd. 1.,
2. or
3.
968.075(2)(a)(a) Notwithstanding
s. 968.07 and except as provided in
par. (b), a law enforcement officer shall arrest and take a person into custody if:
968.075(2)(a)1.
1. The officer has reasonable grounds to believe that the person is committing or has committed domestic abuse and that the person's actions constitute the commission of a crime; and
968.075(2)(a)2.
2. Either or both of the following circumstances are present:
968.075(2)(a)2.a.
a. The officer has a reasonable basis for believing that continued domestic abuse against the alleged victim is likely.
968.075(2)(b)
(b) If the officer's reasonable grounds for belief under
par. (a) 1. are based on a report of an alleged domestic abuse incident, the officer is required to make an arrest under
par. (a) only if the report is received, within 28 days after the day the incident is alleged to have occurred, by the officer or the law enforcement agency that employs the officer.
968.075(3)(a)(a) Each law enforcement agency shall develop, adopt and implement written policies regarding arrest procedures for domestic abuse incidents. The policies shall include, but not be limited to, the following:
968.075(3)(a)1.a.
a. In most circumstances, other than those under
sub. (2), a law enforcement officer should arrest and take a person into custody if the officer has reasonable grounds to believe that the person is committing or has committed domestic abuse and that the person's actions constitute the commission of a crime.
968.075(3)(a)1.b.
b. When the officer has reasonable grounds to believe that spouses, former spouses or other persons who reside together or formerly resided together are committing or have committed domestic abuse against each other, the officer does not have to arrest both persons, but should arrest the person whom the officer believes to be the primary physical aggressor. In determining who is the primary physical aggressor, an officer should consider the intent of this section to protect victims of domestic violence, the relative degree of injury or fear inflicted on the persons involved and any history of domestic abuse between these persons, if that history can reasonably be ascertained by the officer.
968.075(3)(a)1.c.
c. A law enforcement officer's decision as to whether or not to arrest under this section may not be based on the consent of the victim to any subsequent prosecution or on the relationship of the persons involved in the incident.
968.075(3)(a)1.d.
d. A law enforcement officer's decision not to arrest under this section may not be based solely upon the absence of visible indications of injury or impairment.
968.075(3)(a)2.
2. A procedure for the written report and referral required under
sub. (4).
968.075(3)(a)3.
3. A procedure for notifying the alleged victim of the incident of the provisions in
sub. (5), the procedure for releasing the arrested person and the likelihood and probable time of the arrested person's release.
968.075(3)(b)
(b) In the development of these policies, each law enforcement agency is encouraged to consult with community organizations and other law enforcement agencies with expertise in the recognition and handling of domestic abuse incidents.
968.075(3)(c)
(c) This subsection does not limit the authority of a law enforcement agency to establish policies that require arrests under more circumstances than those set forth in
sub. (2).
968.075(4)
(4) Report required where no arrest. If a law enforcement officer does not make an arrest under this section when the officer has reasonable grounds to believe that a person is committing or has committed domestic abuse and that person's acts constitute the commission of a crime, the officer shall prepare a written report stating why the person was not arrested. The report shall be sent to the district attorney's office, in the county where the acts took place, immediately after investigation of the incident has been completed. The district attorney shall review the report to determine whether the person involved in the incident should be charged with the commission of a crime.
968.075(5)(a)1.1. Unless there is a waiver under
par. (c), during the 72 hours immediately following an arrest for a domestic abuse incident, the arrested person shall avoid the residence of the alleged victim of the domestic abuse incident and, if applicable, any premises temporarily occupied by the alleged victim, and avoid contacting or causing any person, other than law enforcement officers and attorneys for the arrested person and alleged victim, to contact the alleged victim.
968.075(5)(a)2.
2. An arrested person who intentionally violates this paragraph shall be required to forfeit not more than $1,000.
968.075(5)(b)1.1. Unless there is a waiver under
par. (c), a law enforcement officer or other person who releases a person arrested for a domestic abuse incident from custody less than 72 hours after the arrest shall inform the arrested person orally and in writing of the requirements under
par. (a), the consequences of violating the requirements and the provisions of
s. 939.621. The arrested person shall sign an acknowledgment on the written notice that he or she has received notice of, and understands the requirements, the consequences of violating the requirements and the provisions of
s. 939.621. If the arrested person refuses to sign the notice, he or she may not be released from custody.
968.075(5)(b)2.
2. If there is a waiver under
par. (c) and the person is released under
subd. 1., the law enforcement officer or other person who releases the arrested person shall inform the arrested person orally and in writing of the waiver and the provisions of
s. 939.621.
968.075(5)(b)3.
3. Failure to comply with the notice requirement under
subd. 1. regarding a person who is lawfully released from custody bars a prosecution under
par. (a), but does not affect the application of
s. 939.621 in any criminal prosecution.
968.075(5)(c)
(c) At any time during the 72-hour period specified in
par. (a), the alleged victim may sign a written waiver of the requirements in
par. (a). The law enforcement agency shall have a waiver form available.
968.075(5)(d)
(d) The law enforcement agency responsible for the arrest of a person for a domestic abuse incident shall notify the alleged victim of the requirements under
par. (a) and the possibility of, procedure for and effect of a waiver under
par. (c).
968.075(5)(e)
(e) Notwithstanding
s. 968.07, a law enforcement officer shall arrest and take a person into custody if the officer has reasonable grounds to believe that the person has violated
par. (a).
968.075(6)
(6) Conditional release. A person arrested and taken into custody for a domestic abuse incident is eligible for conditional release. Unless there is a waiver under
sub. (5) (c), as part of the conditions of any such release that occurs during the 72 hours immediately following such an arrest, the person shall be required to comply with the requirements under
sub. (5) (a) and to sign the acknowledgment under
sub. (5) (b). The arrested person's release shall be conditioned upon his or her signed agreement to refrain from any threats or acts of domestic abuse against the alleged victim or other person.
968.075(6m)
(6m) Officer immunity. A law enforcement officer is immune from civil and criminal liability arising out of a decision by the officer to arrest or not arrest an alleged offender, if the decision is made in a good faith effort to comply with this section.
968.075(7)
(7) Prosecution policies. Each district attorney's office shall develop, adopt and implement written policies encouraging the prosecution of domestic abuse offenses. The policies shall include, but not be limited to, the following:
968.075(7)(a)
(a) A policy indicating that a prosecutor's decision not to prosecute a domestic abuse incident should not be based:
968.075(7)(a)1.
1. Solely upon the absence of visible indications of injury or impairment;
968.075(7)(a)2.
2. Upon the victim's consent to any subsequent prosecution of the other person involved in the incident; or
968.075(7)(a)3.
3. Upon the relationship of the persons involved in the incident.
968.075(7)(b)
(b) A policy indicating that when any domestic abuse incident is reported to the district attorney's office, including a report made under
sub. (4), a charging decision by the district attorney should, absent extraordinary circumstances, be made not later than 2 weeks after the district attorney has received notice of the incident.
