968.24 Annotation
See note to Art. 1, Sec. 11, citing State v. Richardson, 156 W (2d) 128, 456 NW (2d) 830 (1990).
968.24 Annotation
Terry rule applies once person becomes valid suspect even though encounter was initially consensual; if circumstances show investigation is not complete, suspect does not have right to terminate it. State v. Goyer, 157 W (2d) 532, 460 NW (2d) 424 (Ct. App. 1990).
968.24 Annotation
When a person's activity may constitute either a civil forfeiture or crime, investigative stop may be performed. State v. Krier, 165 W (2d) 673, 478 NW (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 W (2d) 520, 558 NW (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 W (2d) 440, 570 NW (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 W (2d) 581, 582 NW (2d) 728 (Ct. App. 1998).
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
Investigatory stop-and-frisk for sole purpose of discovering suspect's identity was lawful under facts of case. State v. Flynn, 92 W (2d) 427, 285 NW (2d) 710 (1979).
968.25 Annotation
Stop and frisk was not unreasonable search and seizure. State v. Williamson, 113 W (2d) 389, 335 NW (2d) 814 (1983).
968.25 Annotation
This section permits officer to search passenger compartment of vehicle for weapons where individual who recently occupied vehicle is stopped under 968.24 and officer "reasonably suspects that he or another is in danger of physical injury". State v. Moretto, 144 W (2d) 171, 423 NW (2d) 841 (1988).
968.25 Annotation
Terry tempered or torpedoed? The new law of stop and frisk. Lewis. WBB Aug. 1988.
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
Intrusive searches of the mouth, nose or ears are not covered by (3). However, searches of those body orifices should be conducted by medical personnel to comply with 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 W (2d) 248, 208 NW (2d) 311.
968.26 Annotation
Immunity hearing must be in open court. State ex rel. Newspapers, Inc. v. Circuit Court, 65 W (2d) 66, 221 NW (2d) 894.
968.26 Annotation
Person charged as result of John Doe proceeding has no recognized interest in the maintenance of secrecy in that proceeding. John Doe discussed. State v. O'Connor, 77 W (2d) 261, 252 NW (2d) 671.
968.26 Annotation
No restrictions of the 4th and 5th amendments preclude enforcement of an order for handwriting exemplars directed by presiding judge in John Doe proceeding. State v. Doe, 78 W (2d) 161, 254 NW (2d) 210.
968.26 Annotation
See note to Art. I, sec. 8, citing Ryan v. State, 79 W (2d) 83, 255 NW (2d) 910.
968.26 Annotation
This section does not violate constitutional separation of powers doctrine. John Doe discussed. State v. Washington, 83 W (2d) 808, 266 NW (2d) 597 (1978).
968.26 Annotation
Balance between public's right to know and need for secrecy in John Doe proceedings discussed. In re Wis. Family Counseling Services v. State, 95 W (2d) 670, 291 NW (2d) 631 (Ct. App. 1980).
968.26 Annotation
John Doe judge may not issue material witness warrant under 969.01 (3). State v. Brady, 118 W (2d) 154, 345 NW (2d) 533 (Ct. App. 1984).
968.26 Annotation
When John Doe proceeding is not joint executive and judicial undertaking, procedure does not violate separation of powers doctrine and is constitutional. State v. Unnamed Defendant, 150 W (2d) 352, 441 NW (2d) 696 (1989).
968.26 Annotation
A John Doe judge may issue and seal a search warrant and a district attorney may independently issue a criminal complaint regardless of the existence of the John Doe. A John Doe cannot be used to obtain evidence against a defendant who has already been charged. State v. Cummings, 199 W (2d) 722, 546 NW (2d) 406 (1996).
968.26 Annotation
To be entitled to a hearing, a John Doe complainant must do more than merely allege in conclusory terms that a crime has been committed. The complainant's petition must allege facts that raise a reasonable belief that a crime has been committed. State ex rel. Reimann v. Circuit Court for Dane County, 214 W (2d) 604, 571 NW (2d) 385 (1997).
968.26 Annotation
Limits of judge's authority in presiding over or conducting John Doe proceeding discussed.
76 Atty. Gen. 217.
968.27(1)
(1) "Aggrieved person" means a person who was a party to any intercepted wire, electronic or oral communication or a person against whom the interception was directed.
968.27(2)
(2) "Aural transfer" means a transfer containing the human voice at any point from the point of origin to the point of reception.
968.27(3)
(3) "Contents" when used with respect to any wire, electronic or oral communication, includes any information concerning the substance, purport or meaning of that communication.
968.27(4)
(4) "Electronic communication" means any transfer of signs, signals, writing, images, sounds, data or intelligence of any nature wholly or partially transmitted by a wire, radio, electromagnetic, photoelectronic or photooptical system. "Electronic communication" does not include any of the following:
968.27(4)(a)
(a) The radio portion of a cordless telephone communication that is transmitted between the cordless telephone handset and the base unit.
968.27(4)(c)
(c) Any communication made through a tone-only paging device.
968.27(5)
(5) "Electronic communication service" means any service that provides its users with the ability to send or receive wire or electronic communications.
968.27(6)
(6) "Electronic communications system" means any wire, radio, electromagnetic, photooptical or photoelectronic facilities for the transmission of electronic communications, and any computer facilities or related electronic equipment for the electronic storage of those communications.
968.27(7)
(7) "Electronic, mechanical or other device" means any device or apparatus which can be used to intercept a wire, electronic or oral communication other than:
968.27(7)(a)
(a) Any telephone or telegraph instrument, equipment or facilities, or any component thereof, which is:
968.27(7)(a)1.
1. Furnished to the subscriber or user by a provider of electronic or wire communication service in the ordinary course of its business and being used by the subscriber or user in the ordinary course of its business or furnished by the subscriber or user for connection to the facilities of the service and used in the ordinary course of its business; or
968.27(7)(a)2.
2. Being used by a provider of electronic or wire communication service in the ordinary course of its business, or by a law enforcement officer in the ordinary course of his or her duties.
968.27(7)(b)
(b) A hearing aid or similar device being used to correct subnormal hearing to not better than normal.
968.27(8)
(8) "Electronic storage" means any of the following:
968.27(8)(a)
(a) Any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof.
968.27(8)(b)
(b) Any storage of a wire or electronic communication by an electronic communication service for purposes of backup protection of the communication.
968.27(9)
(9) "Intercept" means the aural or other acquisition of the contents of any wire, electronic or oral communication through the use of any electronic, mechanical or other device.
968.27(10)
(10) "Investigative or law enforcement officer" means any officer of this state or political subdivision thereof, who is empowered by the laws of this state to conduct investigations of or to make arrests for offenses enumerated in
ss. 968.28 to
968.37, and any attorney authorized by law to prosecute or participate in the prosecution of those offenses.
968.27(11)
(11) "Judge" means the judge sitting at the time an application is made under
s. 968.30 or his or her successor.
968.27(12)
(12) "Oral communication" means any oral communication uttered by a person exhibiting an expectation that the communication is not subject to interception under circumstances justifying the expectation. "Oral communication" does not include any electronic communication.
968.27(13)
(13) "Pen register" means a device that records or decodes electronic or other impulses that identify the numbers dialed or otherwise transmitted on the telephone line to which the device is attached. "Pen register" does not include any device used by a provider or customer of a wire or electronic communication service for billing, or recording as an incident to billing, for communications services provided by the provider or any device used by a provider or customer of a wire communication service for cost accounting or other like purposes in the ordinary course of its business.
968.27(14)
(14) "Readily accessible to the general public" means, with respect to a radio communication, that the communication is not any of the following:
968.27(14)(b)
(b) Transmitted using modulation techniques whose essential parameters have been withheld from the public with the intention of preserving the privacy of the communication.
968.27(14)(c)
(c) Carried on a subcarrier or other signal subsidiary to a radio transmission.
968.27(14)(d)
(d) Transmitted over a communication system provided by a common carrier, including a commercial mobile radio service provider, as defined in
s. 196.01 (2g), unless the communication is a tone-only paging system communication.
968.27(14)(e)
(e) Transmitted on frequencies allocated under
47 CFR part 25, subpart D, E or F of part 74, or part 94, unless in the case of a communication transmitted on a frequency allocated under
47 CFR part 74 that is not exclusively allocated to broadcast auxiliary services, the communication is a 2-way voice communication by radio.
968.27(15)
(15) "Trap and trace device" means a device that captures the incoming electronic or other impulses that identify the originating number of an instrument or device from which a wire or electronic communication was transmitted.
968.27(16)
(16) "User" means any person who or entity that:
