SB82: Bill Text

SB82,166,5 (2m) (intro.) Any person whose wire, electronic , or oral communication is intercepted, disclosed, or used in violation of ss. 968.28 968.315 to 968.37 968.405 shall have a civil cause of action against any person who intercepts, discloses, or uses, or procures any other person to intercept, disclose, or use, the communication, and shall be entitled to recover from any such person all of the following:

SB82,166,7 (a) Actual damages, but not less than liquidated damages computed at the rate of $100 a day for each day of violation or $1,000, whichever is higher ;.

SB82,166,8 (b) Punitive damages; and.

SB82,166,11 (3) Good faith reliance on a court order or on s. 968.30 968.335 (7) shall constitute a complete defense to any civil or criminal action brought under ss. 968.28 968.315 to 968.37 968.405.

SB82,535 Section 535. 968.32 of the statutes is renumbered 968.355 and amended to read:

SB82,166,17 968.355 Forfeiture of contraband devices. Any electronic, mechanical, or other intercepting device used in violation of s. 968.31 968.345 (1) may be seized as contraband by any peace officer and forfeited to this state in an action by the department of justice under ch. 778.

SB82,536 Section 536. 968.33 of the statutes is renumbered 968.365.

SB82,537 Section 537 . 968.34 of the statutes is renumbered 968.376, and 968.376 (1) and (2), as renumbered, are amended to read:

SB82,166,23 968.376 (1) Except as provided in this section, no person may install or use a pen register or a trap and trace device without first obtaining a court order under s. 968.36 968.395 or 18 USC 3123 or 50 USC 1801 to 1811.

SB82,167,3 (2) The prohibition of sub. (1) does not apply with respect to the use of a pen register or a trap and trace device by a provider of electronic or wire communication service if any of the following applies:

SB82,167,7 (a) Relating The use relates to the operation, maintenance, and testing of a wire or electronic communication service or to the protection of the rights or property of the provider, or to the protection of users of that service from abuse of service or unlawful use of service;.

SB82,167,11 (b) To The use is to record the fact that a wire or electronic communication was initiated or completed in order to protect the provider, another provider furnishing service toward the completion of the wire communication, or a user of that service, from fraudulent, unlawful, or abusive use of service ; or.

SB82,167,12 (c) Where the The consent of the user of that service has been obtained.

SB82,538 Section 538. 968.35 of the statutes is renumbered 968.385, and 968.385 (1), as renumbered, is amended to read:

SB82,167,19 968.385 (1) The attorney general or a district attorney may make application for an order or an extension of an order under s. 968.36 968.395 authorizing or approving the installation and use of a pen register or a trap and trace device, in writing under oath or equivalent affirmation, to a circuit court for the county where the device is to be located.

SB82,539 Section 539. 968.36 of the statutes is renumbered 968.395, and 968.395 (1), (2) (e), (4) and (5), as renumbered, are amended to read:

SB82,168,2 968.395 (1) Upon an application made under s. 968.35 968.385, the court shall enter an ex parte order authorizing the installation and use of a pen register or a trap and trace device within the jurisdiction of the court if the court finds that the applicant has certified to the court that the information likely to be obtained by the installation and use is relevant to an ongoing criminal investigation.

SB82,168,5 (2) (e) Direct, upon the request of the applicant, the furnishing of information, facilities and technical assistance necessary to accomplish the installation of the pen register or trap and trace device under s. 968.37 968.405.

SB82,168,8 (4) Extensions of the order may be granted, but only upon an application for an order under s. 968.35 968.385 and upon the judicial finding required by sub. (1). The period of extension shall be for a period not to exceed 60 days.

SB82,168,10 (5) An order authorizing or approving the installation and use of a pen register or a trap and trace device shall direct that all of the following:

SB82,168,11 (a) The That the order be sealed until otherwise ordered by the court; and.

SB82,168,16 (b) The That the person owning or leasing the line to which the pen register or a trap and trace device is attached, or who has been ordered by the court to provide assistance to the applicant, not disclose the existence of the pen register or trap and trace device or the existence of the investigation to the listed subscriber, or to any other person, unless or until otherwise ordered by the court.

SB82,540 Section 540. 968.37 of the statutes is renumbered 968.405, and 968.405 (1), (2), (3), (4) and (5), as renumbered, are amended to read:

SB82,169,2 968.405 (1) Upon the request of the attorney general, a district attorney, or an officer of a law enforcement agency authorized to install and use a pen register under ss. 968.28 968.315 to 968.37 968.405, a provider of wire or electronic communication service, landlord, custodian, or other person shall furnish the investigative or law enforcement officer forthwith all information, facilities, and technical assistance necessary to accomplish the installation of the pen register unobtrusively and with a minimum of interference with the services that the person so ordered by the court accords the party with respect to whom the installation and use is to take place, if the assistance is directed by a court order under s. 968.36 968.395 (5) (b).

SB82,169,15 (2) Upon the request of the attorney general, a district attorney, or an officer of a law enforcement agency authorized to receive the results of a trap and trace device under ss. 968.28 968.315 to 968.37 968.405, a provider of a wire or electronic communication service, landlord, custodian, or other person shall install the device forthwith immediately on the appropriate line and shall furnish the investigative or law enforcement officer all additional information, facilities, and technical assistance including installation and operation of the device unobtrusively and with a minimum of interference with the services that the person so ordered by the court accords the party with respect to whom the installation and use is to take place, if the installation and assistance is directed by a court order under s. 968.36 968.395 (5) (b). Unless otherwise ordered by the court, the results of the trap and trace device shall be furnished to the officer of a law enforcement agency, designated by the court, at reasonable intervals during regular business hours for the duration of the order.

SB82,169,19 (3) A provider of a wire or electronic communication service, landlord, custodian, or other person who furnishes facilities or technical assistance under this section shall be reasonably compensated for the reasonable expenses incurred in providing the facilities and assistance.

SB82,169,23 (4) No cause of action may lie in any court against any provider of a wire or electronic communication service, its officers, employees, or agents or other specified persons for providing information, facilities, or assistance in accordance with the terms of a court order under s. 968.36 968.395.

SB82,170,3 (5) A good faith reliance on a court order, a legislative authorization, or a statutory authorization is a complete defense against any civil or criminal action brought under ss. 968.28 968.315 to 968.37 968.405.

SB82,541 Section 541 . 968.373 of the statutes is renumbered 968.410.

SB82,542 Section 542. 968.375 (4) of the statutes is amended to read:

SB82,170,9 968.375 (4) Basis, application for, and issuance of subpoena or warrant. Section 968.12 968.465 (2) and (3) applies to the basis and application for, and issuance of, a subpoena under sub. (2) or a warrant under sub. (3) as it applies to the basis and application for, and issuance of, a search warrant under s. 968.12 968.465.

SB82,543 Section 543. 968.38 of the statutes is renumbered 968.725, and 968.725 (2) (intro.), (2m) (intro.), (3) (d), (4) (intro.) and (5) (intro.), as renumbered, are amended to read:

SB82,170,19 968.725 (2) (intro.) In a criminal action under s. 940.225, 948.02, 948.025, 948.05, 948.06, 948.085, or 948.095, if all of the following apply, the district attorney shall apply to the circuit court for his or her county to order the defendant to submit to an HIV test and to a test or a series of tests to detect the presence of a sexually transmitted disease, each of which tests shall be administered by a health care professional, and to disclose the results of the test or tests as specified in sub. (4) (a) to (c):

SB82,170,24 (2m) (intro.) In a criminal action under s. 946.43 (2m), the district attorney shall apply to the circuit court for his or her county for an order requiring the defendant to submit to a test or a series of tests administered by a health care professional to detect the presence of communicable diseases and to disclose the results of the test or tests as specified in sub. (5) (a) to (c), if all of the following apply:

SB82,171,3 (3) (d) If the court has determined that the defendant is not competent to proceed under s. 971.14 (4) 975.34 and suspended the criminal proceedings, at any time after the determination that the defendant is not competent to proceed.

SB82,171,20 (4) (intro.) The court shall set a time for a hearing on the matter under sub. (2) during the preliminary examination, if sub. (3) (a) applies; after the defendant is bound over for trial and before a verdict is rendered, if sub. (3) (b) applies; after conviction or a finding of not guilty by reason of mental disease or defect, if sub. (3) (c) applies; or, subject to s. 971.13 975.30 (4), after the determination that the defendant is not competent, if sub. (3) (d) applies. The court shall give the district attorney and the defendant notice of the hearing at least 72 hours prior to the hearing. The defendant may have counsel at the hearing, and counsel may examine and cross-examine witnesses. If the court finds probable cause to believe that the victim or alleged victim has had contact with body fluid of the defendant that constitutes a significant exposure, the court shall order the defendant to submit to an HIV test and to a test or a series of tests to detect the presence of a sexually transmitted disease. The test shall be performed by a health care professional. The court shall require the health care professional who performs the test to disclose the test results to the defendant, to refrain from making the test results part of the defendant's permanent medical record, and to disclose the results of the test to any of the following:

SB82,172,15 (5) (intro.) The court shall set a time for a hearing on the matter under sub. (2m) during the preliminary examination, if sub. (3) (a) applies; after the defendant is bound over for trial and before a verdict is rendered, if sub. (3) (b) applies; after conviction or a finding of not guilty by reason of mental disease or defect, if sub. (3) (c) applies; or, subject to s. 971.13 975.30 (4), after the determination that the defendant is not competent, if sub. (3) (d) applies. The court shall give the district attorney and the defendant notice of the hearing at least 72 hours prior to the hearing. The defendant may have counsel at the hearing, and counsel may examine and cross-examine witnesses. If the court finds probable cause to believe that the act or alleged act of the defendant that constitutes a violation of s. 946.43 (2m) carried a potential for transmitting a communicable disease to the victim or alleged victim and involved the defendant's blood, semen, vomit, saliva, urine or feces or other bodily substance of the defendant, the court shall order the defendant to submit to a test or a series of tests administered by a health care professional to detect the presence of any communicable disease that was potentially transmitted by the act or alleged act of the defendant. The court shall require the health care professional who performs the test to disclose the test results to the defendant. The court shall require the health care professional who performs the test to refrain from making the test results part of the defendant's permanent medical record and to disclose the results of the test to any of the following:

SB82,544 Section 544. 968.40 (title) of the statutes is renumbered 968.155 (title) and amended to read:

SB82,172,18 968.155 (title) Grand Convening a grand jury; duration.

SB82,545 Section 545. 968.40 (1) of the statutes is renumbered 968.155 (1) and amended to read:

SB82,172,25 968.155 (1) Selection of prospective grand jury list jurors. Any judge may, in writing, order the clerk of circuit court to select compile a grand jury list within a specified reasonable time. The clerk shall select from the prospective juror list for the county the names of not fewer than 75 35 nor more than 150 persons to constitute the prospective grand juror list. The list shall be kept secret.

SB82,546 Section 546. 968.40 (3) of the statutes is renumbered 968.155 (2) and amended to read:

SB82,173,8 968.155 (2) Examination of prospective grand jurors. At the time set for When the prospective grand jurors to appear, the judge shall and the district attorney or other prosecuting officer may examine the prospective jurors them under oath or affirmation relative to their qualifications to serve as grand jurors and the. The judge shall excuse those who are disqualified, and may excuse others for any reason which that seems proper to the judge.

SB82,547 Section 547. 968.40 (4) of the statutes is renumbered 968.155 (3) and amended to read:

SB82,173,14 968.155 (3) Additional grand jurors. If, after such the examination described in sub. (2), fewer than 17 grand jurors remain, additional prospective grand jurors shall be selected, summoned and examined until there are at least 17 qualified grand jurors on the grand jury.

SB82,548 Section 548. 968.40 (6), (7) and (8) of the statutes are renumbered 968.155 (4), (5) and (6) and amended to read:

SB82,173,20 968.155 (4) Time grand jurors to serve. Grand The judge may discharge the grand jury at any time. Otherwise, grand jurors shall serve for a period of 31 consecutive days unless more days are necessary to complete service in a particular proceeding. The judge may discharge the grand jury at any time.

SB82,173,22 (5) Orders filed with clerk. All orders mentioned in under this section shall be filed with the clerk of court.

SB82,174,3 (6) Intercounty racketeering and crime. When a grand jury is convened pursuant to under this section to investigate unlawful activity under s. 165.70, and such the activity involves more than one county, including the county where the petition for such grand jury is filed, then if the attorney general approves, all expenses of such proceeding shall be charged to the appropriation under s. 20.455 (1) (d).

SB82,549 Section 549. 968.41 of the statutes is renumbered 968.165 and amended to read:

SB82,174,12 968.165 Oath or affirmation of grand jurors. Grand jurors shall, before they begin performance of their duties, solemnly swear or affirm that they will diligently inquire as to all matters and things which that come before the grand jury; that they will keep all matters which that come before the grand jury secret; that they will indict no person for envy, hatred, or malice; that they will not leave any person unindicted for love, fear, favor, affection, or hope of reward; and that they will indict truly, according to the best of their understanding.

SB82,550 Section 550. 968.42 of the statutes is renumbered 968.175 and amended to read:

SB82,174,17 968.175 Presiding juror and clerk. The grand jury shall select from their number a presiding juror and a clerk. The clerk of the grand jury shall preserve the minutes of the proceedings before them the grand jury and all exhibits.

SB82,551 Section 551. 968.43 of the statutes is renumbered 968.185 and amended to read:

SB82,174,23 968.185 Reporter; oath; salary; assistant. (1) Every grand jury shall , when ordered by the judge ordering such the grand jury, employ one or more reporters to attend their its sessions and to make record and transcribe a verbatim record of all proceedings had before them it.

SB82,175,8 (2) Before assuming the duties under this section, each reporter shall make and file an oath or affirmation faithfully to record and transcribe faithfully all of the proceedings before the grand jury and to keep secret the matters relative related to the proceedings. Each reporter shall be paid out of the county treasury of the county in which the service is rendered such a sum for compensation and expenses as shall be audited and allowed as reasonable by the court ordering the grand jury. Each reporter may employ on his or her own account a person to transcribe the testimony and proceedings of the grand jury, but before entering upon the duties under this subsection, the person shall be required to make and file an oath or affirmation similar to that required of each reporter.

SB82,175,10 (3) Any Except as provided in s. 968.295, any person who violates an oath or affirmation required by sub. (2) is guilty of a Class H felony.

SB82,552 Section 552. 968.44 of the statutes is renumbered 968.195 and amended to read:

SB82,175,20 968.195 Witnesses Oaths to witnesses. The presiding juror of every grand jury and the district attorney or other prosecuting officer who is before the grand jury may administer all oaths and affirmations in the manner prescribed by law to witnesses who appear before the grand jury for the purpose of testifying in any matter of which the witnesses have cognizance. At the request of the court, the presiding juror shall return to the court a list, under his or her hand, of all witnesses who are sworn before the grand jury. That list shall be filed by the clerk of circuit court.

SB82,553 Section 553. 968.45 (title) of the statutes is renumbered 968.203 (title) and amended to read:

SB82,175,23 968.203 (title) Witness rights Counsel for witnesses; transcripts.

SB82,554 Section 554. 968.45 (1) of the statutes is renumbered 968.203 (1) (a) and amended to read:

SB82,176,4 968.203 (1) (a) Any witness appearing before a grand jury may have counsel present, but the counsel shall not be allowed to examine his or her client, cross-examine other witnesses, or argue before the judge. Counsel may consult with his or her client while before a grand jury. If the prosecuting officer,

SB82,176,10 (b) A district attorney, an attorney for a witness , or a grand juror who believes that a conflict of interest exists for an attorney or attorneys to represent more than one witness before a grand jury, the person so believing may make a motion before the presiding judge to disqualify the attorney from representing more than one witness before the grand jury. A The court shall hold a hearing shall be held upon notice with the burden upon on the moving party to establish the conflict.

SB82,555 Section 555. 968.45 (2) of the statutes is renumbered 968.203 (2) and amended to read:

SB82,176,17 968.203 (2) No grand jury transcript may be made public until the trial of anyone a person indicted by the grand jury, and then only that portion of the transcript that is relevant and material to the case at hand may be made public. This subsection does not limit the defendant's rights to discovery under s. 971.23 971.43 (2) (a).

SB82,556 Section 556. Subchapter V (title) of chapter 968 [precedes 968.455] of the statutes is created to read:

SB82,176,20 chapter 968

SB82,176,22 subchapter V search and seizure

SB82,557 Section 557. 968.46 of the statutes is renumbered 968.215 and amended to read:

SB82,177,6 968.215 Secrecy of motions. Notwithstanding s. 757.14, all motions, including but not limited to those for immunity or a privilege, brought by a prosecuting officer district attorney or witness appearing before a grand jury shall be made, heard, and decided in complete secrecy and not in open court if the prosecuting officer or witness person bringing the motion or exercising the immunity or privilege so requests.

SB82,558 Section 558. Subchapter VI (title) of chapter 968 [precedes 968.465] of the statutes is created to read:

SB82,177,9 chapter 968

SB82,177,11 subchapter VI search warrants

SB82,559 Section 559. 968.465 (5) and (6) of the statutes are created to read:

SB82,177,17 968.465 (5) Sealed warrant. A judge may order that a search warrant and supporting documents be held under seal for a specified period and may extend or reduce the period for good cause shown. The judge shall make the decision in his or her discretion, after balancing the reasons for secrecy against the defendant's and the public's right of access.

SB82,177,23 (6) Permitting execution without announcement. A search warrant may authorize the executing officer to enter the premises designated in the warrant without announcement and delay under s. 968.485 (1) when the applicant shows that there is a reasonable suspicion that, in the particular circumstances, announcement and delay would be dangerous or futile or would inhibit the effective investigation of the crime by any means including but not limited to the destruction of evidence.

SB82,560 Section 560. 968.47 of the statutes is renumbered 968.225 and amended to read:

SB82,178,6 968.225 District Duties of district attorney, when to attend. Whenever required by the grand jury it shall be the duty of, the district attorney of the county to shall attend them grand jury proceedings for the purpose of examining witnesses in their the presence or of giving them of the grand jury, give the grand jury advice upon any legal matter, and to issue subpoenas and other process to bring up witnesses before the grand jury.

SB82,561 Section 561. 968.475 (2) (a) of the statutes is created to read:

SB82,178,8 968.475 (2) (a) Contraband.

SB82,562 Section 562. 968.475 (2) (e) of the statutes is created to read:

SB82,178,10 968.475 (2) (e) A designated person.

SB82,563 Section 563. 968.475 (3) of the statutes is created to read:

SB82,178,14 968.475 (3) Section 968.705 applies to documents to be subpoenaed if the documents are under the control of a person not reasonably suspected to be concerned in the commission of a crime.

SB82,564 Section 564. 968.48 of the statutes is renumbered 968.235 and amended to read:

SB82,179,2 968.235 Attendance; absence; excuse Grand jury attendance; number required for grand jury session; number required to concur in and indictment. Each grand juror shall attend every session of the grand jury unless excused by the presiding juror. The presiding juror may excuse a grand juror from attending a grand jury session only for a reason which appears to the presiding juror in his or her discretion as good and sufficient cause for the excuse juror's absence. No business may be transacted at any session of the grand jury at which less if fewer than 14 members of the grand jury are in attendance, and no indictment may be found by any grand jury may indict unless at least 12 of their number shall grand jurors concur in the indictment.

SB82,565 Section 565. 968.485 (title) and (1) of the statutes are created to read:

SB82,179,8 968.485 (title) Execution of a search warrant. (1) Knock and announce requirement and exceptions. When seeking to enter a dwelling to execute a search warrant, a law enforcement officer shall first announce the purpose and authority to enter and allow a reasonable time for the door to be opened, unless one of the following applies: