968.085(5)
(5) Review by district attorney. If the district attorney declines to prosecute, he or she shall notify the law enforcement agency which issued the citation. The law enforcement agency shall attempt to notify the person cited that he or she will not be charged and is not required to appear as directed in the citation.
968.085(6)
(6) Citation no bar to criminal summons or warrant. The prior issuance of a citation does not bar the issuance of a summons or a warrant for the same offense.
968.085(7)
(7) Preparation of form. The judicial conference shall prescribe the form and content of the citation under
s. 758.171.
968.085(8)
(8) Inapplicability to certain domestic abuse cases. A law enforcement officer may not issue a citation to a person for an offense if the officer is required to arrest the person for that offense under
s. 968.075 (2).
968.085 History
History: 1983 a. 433;
2005 a. 104.
968.09
968.09
Warrant on failure to appear. 968.09(1)
(1) When a defendant or a witness fails to appear before the court as required, or violates a term of the defendant's or witness's bond or the defendant's or witness's probation, if any, the court may issue a bench warrant for the defendant's or witness's arrest which shall direct that the defendant or witness be brought before the court without unreasonable delay. The court shall state on the record at the time of issuance of the bench warrant the reason therefor.
968.09(2)
(2) Prior to the defendant's appearance in court after the defendant's arrest under
sub. (1),
ch. 969 shall not apply.
968.09 History
History: 1971 c. 298;
1993 a. 486.
968.09 Annotation
A bench warrant may be directed to all law enforcement officers in the state without regard to whether the defendant is charged with a violation of a state statute or county ordinance. The form of the warrant should be as suggested by s. 968.04 (3) (a) 7. 62 Atty. Gen. 208.
968.10
968.10
Searches and seizures; when authorized. A search of a person, object or place may be made and things may be seized when the search is made:
968.10(3)
(3) Pursuant to a valid search warrant;
968.10(4)
(4) With the authority and within the scope of a right of lawful inspection;
968.10(5)
(5) Pursuant to a search during an authorized temporary questioning as provided in
s. 968.25; or
968.10(6)
(6) As otherwise authorized by law.
968.10 Note
NOTE: See the notes to Article I, section 11, of the Wisconsin Constitution.
968.11
968.11
Scope of search incident to lawful arrest. When a lawful arrest is made, a law enforcement officer may reasonably search the person arrested and an area within such person's immediate presence for the purpose of:
968.11(1)
(1) Protecting the officer from attack;
968.11(2)
(2) Preventing the person from escaping;
968.11(3)
(3) Discovering and seizing the fruits of the crime; or
968.11(4)
(4) Discovering and seizing any instruments, articles or things which may have been used in the commission of, or which may constitute evidence of, the offense.
968.11 Annotation
The holding of Arizona v. Gant, 556 U.S. ___, that
Belton does not authorize a vehicle search incident to a recent occupant's arrest after the arrestee has been secured and cannot access the interior of the vehicle is adopted as the proper interpretation of the Wisconsin Constitution's protection against unreasonable searches and seizures. State v. Dearborn, 2010 WI 84, ___ Wis. 2d ___, ___ N.W.2d ___,
07-1894.
968.11 Note
NOTE: See also the notes to Article I, section 11, of the Wisconsin Constitution.
968.12(1)(1)
Description and issuance. A search warrant is an order signed by a judge directing a law enforcement officer to conduct a search of a designated person, a designated object or a designated place for the purpose of seizing designated property or kinds of property. A judge shall issue a search warrant if probable cause is shown.
968.12(2)
(2) Warrant upon affidavit. A search warrant may be based upon sworn complaint or affidavit, or testimony recorded by a phonographic reporter or under
sub. (3) (d), showing probable cause therefor. The complaint, affidavit or testimony may be upon information and belief.
968.12(3)(a)(a)
General rule. A search warrant may be based upon sworn oral testimony communicated to the judge by telephone, radio or other means of electronic communication, under the procedure prescribed in this subsection.
968.12(3)(b)
(b)
Application. The person who is requesting the warrant shall prepare a duplicate original warrant and read the duplicate original warrant, verbatim, to the judge. The judge shall enter, verbatim, what is read on the original warrant. The judge may direct that the warrant be modified.
968.12(3)(c)
(c)
Issuance. If the judge determines that there is probable cause for the warrant, the judge shall order the issuance of a warrant by directing the person requesting the warrant to sign the judge's name on the duplicate original warrant. In addition, the person shall sign his or her own name on the duplicate original warrant. The judge shall immediately sign the original warrant and enter on the face of the original warrant the exact time when the warrant was ordered to be issued. The finding of probable cause for a warrant upon oral testimony shall be based on the same kind of evidence as is sufficient for a warrant upon affidavit.
968.12(3)(d)
(d)
Recording and certification of testimony. When a caller informs the judge that the purpose of the call is to request a warrant, the judge shall place under oath each person whose testimony forms a basis of the application and each person applying for the warrant. The judge or requesting person shall arrange for all sworn testimony to be recorded either by a stenographic reporter or by means of a voice recording device. The judge shall have the record transcribed. The transcript, certified as accurate by the judge or reporter, as appropriate, shall be filed with the court. If the testimony was recorded by means of a voice recording device, the judge shall also file the original recording with the court.
968.12(3)(e)
(e)
Contents. The contents of a warrant upon oral testimony shall be the same as the contents of a warrant upon affidavit.
968.12(3)(f)
(f)
Entry of time of execution. The person who executes the warrant shall enter the exact time of execution on the face of the duplicate original warrant.
968.12(4)
(4) Location of search. A search warrant may authorize a search to be conducted anywhere in the state and may be executed pursuant to its terms anywhere in the state.
968.12 History
History: 1971 c. 298;
1983 a. 443; Sup. Ct. Order, 141 Wis. 2d xiii (1987).
968.12 Note
Judicial Council Note, 1988: Sub. (2) is amended to eliminate the preference for written affidavits as the basis for search warrants. Telephoned testimony allows faster response and the transcribed record is no less adequate for review.
968.12 Annotation
Sub. (3) (a) is amended to eliminate the preference for written affidavits as the basis for search warrants. Telephoned testimony allows faster response and the transcribed record is no less adequate for review.
968.12 Annotation
Sub. (3) (c) is amended to eliminate the preference for written affidavits as the basis for search warrants. Telephoned testimony allows faster response and the transcribed record is no less adequate for review.
968.12 Annotation
Sub. (3) (d) is amended to authorize that the testimony be recorded either by a stenographic reporter or a voice recording device. [Re Order effective Jan. 1, 1988]
968.12 Note
NOTE: See the notes to Article I, section 11, of the Wisconsin Constitution.
968.13
968.13
Search warrant; property subject to seizure. 968.13(1)(1) A search warrant may authorize the seizure of the following:
968.13(1)(a)
(a) Contraband, which includes without limitation because of enumeration lottery tickets, gambling machines or other gambling devices, lewd, obscene or indecent written matter, pictures, sound recordings or motion picture films, forged money or written instruments and the tools, dies, machines or materials for making them, and controlled substances, as defined in
s. 961.01 (4), and controlled substance analogs, as defined in
s. 961.01 (4m), and the implements for smoking or injecting them. Gambling machines or other gambling devices possessed by a shipbuilding business that complies with
s. 945.095 are not subject to this section.
968.13(1)(b)
(b) Anything which is the fruit of or has been used in the commission of any crime.
968.13(1)(c)
(c) Anything other than documents which may constitute evidence of any crime.
968.13(1)(d)
(d) Documents which may constitute evidence of any crime, if probable cause is shown that the documents are under the control of a person who is reasonably suspected to be concerned in the commission of that crime under
s. 939.05 (2).
968.13(2)
(2) In this section, "documents" includes, but is not limited to, books, papers, records, recordings, tapes, photographs, films or computer or electronic data.
968.13 Annotation
An adversary hearing is not necessary for the seizure of a limited quantity of obscene material as evidence but is necessary before more than evidentiary copies are seized. State ex rel. Howard v. O'Connell,
53 Wis. 2d 248,
192 N.W.2d 201 (1971).
968.13 Annotation
"Contraband" under sub. (1) (a) is not limited to items that are per se illegal; it also encompasses items used, acquired, or transferred illegally, including money. Jones v. State,
226 Wis. 2d 565,
594 N.W.2d 738 (1999),
97-3306.
968.13 Note
NOTE: See also the notes to Article I, section 11, of the Wisconsin Constitution.
968.135
968.135
Subpoena for documents. Upon the request of the attorney general or a district attorney and upon a showing of probable cause under
s. 968.12, a court shall issue a subpoena requiring the production of documents, as specified in
s. 968.13 (2). The documents shall be returnable to the court which issued the subpoena. Motions to the court, including, but not limited to, motions to quash or limit the subpoena, shall be addressed to the court which issued the subpoena. Any person who unlawfully refuses to produce the documents may be compelled to do so as provided in
ch. 785. This section does not limit or affect any other subpoena authority provided by law.
968.135 History
History: 1979 c. 81,
177;
1983 a. 443 s.
4.
968.135 Annotation
A bank's voluntary surrender of records other than those demanded on the subpoena provided no basis for suppression. State v. Swift,
173 Wis. 2d 870,
496 N.W.2d 713 (Ct. App. 1993).
968.135 Annotation
This section protects the interests of persons whose documents are sought in addition to protecting the interests of the person on whom a subpoena is served. The defendant had standing to challenge subpoenas issued to produce her bank records. A person has standing to seek judicial intervention when that person has a personal stake in the outcome and is directly affected by the issues in controversy. State v. Popenhagen, 2008 WI 55,
309 Wis. 2d 601,
749 N.W.2d 611,
06-1114.
968.135 Annotation
This section encompasses a motion to suppress documents in violation of this section and to suppress statements directly derived from those documents. The circuit court has discretion to suppress or allow evidence obtained in violation of a statute that does not specifically require suppression of evidence obtained contrary to the statute, depending on the facts and circumstances of the case and the objectives of the statute. State v. Popenhagen, 2008 WI 55,
309 Wis. 2d 601,
749 N.W.2d 611,
06-1114.
968.135 Annotation
If a person were permitted to bring a motion to quash the subpoena for bank documents unlawfully obtained but not permitted to bring a motion to suppress incriminating statements derived directly from the unlawfully obtained bank documents, the person would not get the full benefit of the protections of the statute, and the underlying objectives of the statute would be defeated. State v. Popenhagen, 2008 WI 55,
309 Wis. 2d 601,
749 N.W.2d 611,
06-1114.
968.14
968.14
Use of force. All necessary force may be used to execute a search warrant or to effect any entry into any building or property or part thereof to execute a search warrant.
968.14 Annotation
Officers acted legally when, armed with a search warrant, they knocked on a door, pushed it open when the defendant opened it 2 inches, and put him under restraint before showing the warrant. State v. Meier,
60 Wis. 2d 452,
210 N.W.2d 685 (1973).
968.14 Annotation
To dispense with the rule of announcement in executing a warrant, particular facts must be shown in each case that support an officer's reasonable suspicion that exigent circumstances exist. An officer's experience and training are valid relevant considerations. State v. Meyer,
216 Wis. 2d 729,
576 N.W.2d 260 (1998),
96-2243.
968.14 Annotation
Irrespective of whether the search warrant authorizes a "no-knock" entry, reasonableness is determined when the warrant is executed. State v. Davis, 2000 WI 270,
240 Wis. 2d 15,
622 N.W.2d 1.
968.14 Annotation
There is no blanket exception to the knock and announce requirement for executing warrants. To justify no-knock entry, a reasonable suspicion that knocking and announcing will be dangerous, or futile, or will inhibit the effective investigation of a crime must exist. Richards v. Wisconsin,
520 U.S. 385,
137 L. Ed. 2d 615 (1997).
968.14 Note
NOTE: See also the notes to Article I, section 11, of the Wisconsin Constitution.
968.15
968.15
Search warrants; when executable. 968.15(1)
(1) A search warrant must be executed and returned not more than 5 days after the date of issuance.
968.15(2)
(2) Any search warrant not executed within the time provided in
sub. (1) shall be void and shall be returned to the judge issuing it.
968.15 Annotation
Execution of search warrant is timely if in compliance with (1) and if probable cause which led to issuance still exists at time of execution. Defense has burden of proof in timeliness challenge. State v. Edwards,
98 Wis. 2d 367,
297 N.W.2d 12 (1980).
968.15 Annotation
Law enforcement's failure to return an order and inventory within the confines of ss. 968.15 and 968.17 did not render the execution of the order unreasonable. The timely return of a warrant is a ministerial duty that does not affect the validity of the search absent prejudice to the defendant. State v. Sveum, 2010 WI 92, ___ Wis. 2d___, ___ N.W.2d ___,
08-0658.
968.16
968.16
Detention and search of persons on premises. The person executing the search warrant may reasonably detain and search any person on the premises at the time to protect himself or herself from attack or to prevent the disposal or concealment of any item particularly described in the search warrant.
968.16 History
History: 1993 a. 486.
968.16 Annotation
The defendant had sufficient control and dominion over a car for it to be considered "premises," justifying a search of the defendant. State v. Reed,
156 Wis. 2d 546,
457 N.W.2d 494 (Ct. App 1990).
968.16 Annotation
The frisk of a person not named in a search warrant during the execution of the warrant was reasonable when occupants of the residence were very likely to be involved in drug trafficking; drugs felt in a pocket during the frisk were lawfully seized when the officer had probable cause to believe that there was a connection between what was felt and criminal activity. State v. Guy,
172 Wis. 2d 86,
492 N.W.2d 311 (1992).
968.16 Annotation
Law enforcement's failure to return an order and inventory within the confines of ss. 968.15 and 968.17 did not render the execution of the order unreasonable. The timely return of a warrant is a ministerial duty that does not affect the validity of the search absent prejudice to the defendant. State v. Sveum, 2010 WI 92, ___ Wis. 2d___, ___ N.W.2d ___,
08-0658.
968.16 Note
NOTE: See also the notes to Article I, section 11, of the Wisconsin Constitution.
968.17
968.17
Return of search warrant. 968.17(1)
(1) The return of the search warrant shall be made within 48 hours after execution to the clerk designated in the warrant. The return shall be accompanied by a written inventory of any property taken. Upon request, the clerk shall deliver a copy of the inventory to the person from whom or from whose premises the property was taken and to the applicant for the search warrant.
968.17(2)
(2) An affidavit or complaint made in support of the issuance of the warrant and the transcript of any testimony taken shall be filed with the clerk within 5 days after the date of the execution of any search warrant.
968.17 History
History: 1971 c. 298.
968.17 Annotation
In computing the time within which a search warrant must be returned, the court may exclude the hours between 4:30 p.m. Friday and 8 a.m. Monday. Such a delay would not affect the validity of the search. State v. Meier,
60 Wis. 2d 452,
210 N.W.2d 685 (1973).
968.17 Annotation
The trial court erred in suppressing controlled substances and associated paraphernalia seized pursuant to a search warrant on the ground that a transcript of testimony upon which the warrant was based was not filed within 5 days of its execution, as required by sub. (2), because: 1) s. 968.22 provides that no evidence seized under a search warrant may be suppressed due to technical irregularities not affecting the defendant's substantial rights; 2) the 5-day filing requirement is a ministerial duty, a violation of which does not invalidate a search absent prejudice; and 3) there was no prejudice when the transcript was filed approximately 6 weeks prior to the filing of the information, before which the defendant was statutorily precluded from making any motion to suppress. State v. Elam,
68 Wis. 2d 614,
229 N.W.2d 664 (1975).
968.18
968.18
Receipt for seized property. Any law enforcement officer seizing any items without a search warrant shall give a receipt as soon as practicable to the person from whose possession they are taken. Failure to give such receipt shall not render the evidence seized inadmissible upon a trial.
968.19
968.19
Custody of property seized. Property seized under a search warrant or validly seized without a warrant shall be safely kept by the officer, who may leave it in the custody of the sheriff and take a receipt therefor, so long as necessary for the purpose of being produced as evidence on any trial.
968.20
968.20
Return of property seized. 968.20(1)
(1) Any person claiming the right to possession of property seized pursuant to a search warrant or seized without a search warrant may apply for its return to the circuit court for the county in which the property was seized or where the search warrant was returned. The court shall order such notice as it deems adequate to be given the district attorney and all persons who have or may have an interest in the property and shall hold a hearing to hear all claims to its true ownership. If the right to possession is proved to the court's satisfaction, it shall order the property, other than contraband or property covered under
sub. (1m) or
(1r) or
s. 173.12,
173.21 (4), or
968.205, returned if:
968.20(1)(a)
(a) The property is not needed as evidence or, if needed, satisfactory arrangements can be made for its return for subsequent use as evidence; or
968.20(1)(b)
(b) All proceedings in which it might be required have been completed.
