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 Wis. 2d 248,
208 N.W.2d 311.
968.26 Annotation
An immunity hearing must be in open court. State ex rel. Newspapers, Inc. v. Circuit Court,
65 Wis. 2d 66,
221 N.W.2d 894.
968.26 Annotation
A person charged as a result of a John Doe proceeding has no recognized interest in the maintenance of secrecy in that proceeding. John Doe proceedings are discussed. State v. O'Connor,
77 Wis. 2d 261,
252 N.W.2d 671.
968.26 Annotation
No restrictions under the 4th and 5th amendments preclude the enforcement of an order for handwriting exemplars directed by a presiding judge in a John Doe proceeding. State v. Doe,
78 Wis. 2d 161,
254 N.W.2d 210.
968.26 Annotation
Due process does not require that a John Doe witness be advised of the nature of the proceeding or that the witness is a "target" of the investigation. Ryan v. State,
79 Wis. 2d 83,
255 N.W.2d 910.
968.26 Annotation
This section does not violate the constitutional separation of powers doctrine. John Doe proceedings are discussed. State v. Washington,
83 Wis. 2d 808,
266 N.W.2d 597 (1978).
968.26 Annotation
A balance between the public's right to know and the need for secrecy in John Doe proceedings is discussed. In re Wis. Family Counseling Services v. State,
95 Wis. 2d 670,
291 N.W.2d 631 (Ct. App. 1980).
968.26 Annotation
A John Doe judge may not issue a material witness warrant under s. 969.01 (3). State v. Brady,
118 Wis. 2d 154,
345 N.W.2d 533 (Ct. App. 1984).
968.26 Annotation
When a John Doe proceeding is not a joint executive and judicial undertaking,the procedure does not violate the separation of powers doctrine and is constitutional. State v. Unnamed Defendant,
150 Wis. 2d 352,
441 N.W.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 Wis. 2d 722,
546 N.W.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 Wis. 2d 604,
571 N.W.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:
968.27(16)(b)
(b) Is duly authorized by the provider of the service to engage in that use.
968.27(17)
(17) "Wire communication" means any aural transfer made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, microwave or other like connection between the point of origin and the point of reception, including the use of the connection in any switching station, furnished or operated by any person engaged as a public utility in providing or operating the facilities for the transmission of intrastate, interstate or foreign communications. "Wire communication" includes the electronic storage of any such aural transfer, but does not include the radio portion of a cordless telephone communication that is transmitted between the cordless telephone handset and the base unit.
968.27 Annotation
The constitutionality of ss. 968.27 to 968.30 is upheld. State ex rel. Hussong v. Froelich,
62 Wis. 2d 577,
215 N.W.2d 390.
968.27 Annotation
An informant who is party to a tape recorded telephone conversation also acquired the conversation in his mind, regardless of the use of tape recorder; that acquisition is not an "intercept." The informant may testify to the conversation without use of the recording. State v. Maloney,
161 Wis. 2d 127,
467 N.W.2d 215 (Ct. App. 1991).
968.28
968.28
Application for court order to intercept communications. The attorney general together with the district attorney of any county may approve a request of an investigative or law enforcement officer to apply to the chief judge of the judicial administrative district for the county where the interception is to take place for an order authorizing or approving the interception of wire, electronic or oral communications. The chief judge may under
s. 968.30 grant an order authorizing or approving the interception of wire, electronic or oral communications by investigative or law enforcement officers having responsibility for the investigation of the offense for which the application is made. The authorization shall be permitted only if the interception may provide or has provided evidence of the commission of the offense of homicide, felony murder, kidnapping, commercial gambling, bribery, extortion, dealing in controlled substances or controlled substance analogs, a computer crime that is a felony under
s. 943.70, or any conspiracy to commit any of the foregoing offenses.
968.29
968.29
Authorization for disclosure and use of intercepted wire, electronic or oral communications. 968.29(1)
(1) Any investigative or law enforcement officer who, by any means authorized by
ss. 968.28 to
968.37 or
18 USC 2510 to
2520, has obtained knowledge of the contents of any wire, electronic or oral communication, or evidence derived therefrom, may disclose the contents to another investigative or law enforcement officer only to the extent that the disclosure is appropriate to the proper performance of the official duties of the officer making or receiving the disclosure.
968.29(2)
(2) Any investigative or law enforcement officer who, by any means authorized by
ss. 968.28 to
968.37 or
18 USC 2510 to
2520, has obtained knowledge of the contents of any wire, electronic or oral communication or evidence derived therefrom may use the contents only to the extent the use is appropriate to the proper performance of the officer's official duties.
968.29(3)(a)(a) Any person who has received, by any means authorized by
ss. 968.28 to
968.37 or
18 USC 2510 to
2520 or by a like statute of any other state, any information concerning a wire, electronic or oral communication or evidence derived therefrom intercepted in accordance with
ss. 968.28 to
968.37, may disclose the contents of that communication or that derivative evidence only while giving testimony under oath or affirmation in any proceeding in any court or before any magistrate or grand jury in this state, or in any court of the United States or of any state, or in any federal or state grand jury proceeding.
968.29(3)(b)
(b) In addition to the disclosure provisions of
par. (a), any person who has received, in the manner described under
s. 968.31 (2) (b), any information concerning a wire, electronic or oral communication or evidence derived therefrom, may disclose the contents of that communication or that derivative evidence while giving testimony under oath or affirmation in any proceeding described in
par. (a) in which a person is accused of any act constituting a felony, and only if the party who consented to the interception is available to testify at the proceeding or if another witness is available to authenticate the recording.
968.29(4)
(4) No otherwise privileged wire, electronic or oral communication intercepted in accordance with, or in violation of,
ss. 968.28 to
968.37 or
18 USC 2510 to
2520, may lose its privileged character.
968.29(5)
(5) When an investigative or law enforcement officer, while engaged in intercepting wire, electronic or oral communications in the manner authorized, intercepts wire, electronic or oral communications relating to offenses other than those specified in the order of authorization or approval, the contents thereof, and evidence derived therefrom, may be disclosed or used as provided in
subs. (1) and
(2). The contents and any evidence derived therefrom may be used under
sub. (3) when authorized or approved by the judge who acted on the original application where the judge finds on subsequent application, made as soon as practicable but no later than 48 hours, that the contents were otherwise intercepted in accordance with
ss. 968.28 to
968.37 or
18 USC 2510 to
2520 or by a like statute.
968.29 Annotation
Evidence of intercepted oral or wire communications can be introduced only if the interception was authorized under s. 968.30; consent by one party to the communication is not sufficient. State ex rel. Arnold v. County Court,
51 Wis. 2d 434,
187 N.W.2d 354.
968.29 Annotation
Although one-party consent tapes are lawful, they are not authorized by ss. 968.28 to 968.33 [, 1985 stats.] and therefore the contents cannot be admitted as evidence in chief, but s. 968.29 (3) does not prohibit giving such tapes to the state. State v. Waste Management of Wisconsin, Inc.
81 Wis. 2d 555,
261 N.W.2d 147.
968.29 Annotation
Although a taped telephone conversation was obtained without a court order, the defendant opened the door to the tape's admission by extensive reference to the tape transcript during his case-in-chief. State v. Albrecht,
184 Wis. 2d 287,
516 N.W.2d 776 (Ct. App. 1994).
968.29 Annotation
Sub. (2) authorizes prosecutors to include intercepted communications in a criminal complaint. A prosecutor is a law enforcement officer under sub. (2), and preparation of complaints is within the prosecutor's official duties. State v. Gilmore,
193 Wis. 2d 403,
535 N.W.2d 21 (Ct. App. 1995).
968.29 Annotation
The state may incorporate intercepted communications in a criminal complaint if the complaint is filed under seal. Unilateral public disclosure of such communications in a complaint while not authorized does not subject the communication to suppression, but may entitle the defendant to remedies under s. 968.31. State v. Gilmore,
201 Wis. 2d 820,
549 N.W.2d 401 (1996).
968.29 Annotation
The state may use one-party consent recordings of criminal activity, the disclosure of which is not authorized under sub. (3) (b), if the evidence inadvertently falls within the "plain hearing" of law enforcement officers conducting authorized surveillance. State v. Gil,
208 Wis. 2d 531,
561 N.W.2d 760 (Ct. App. 1997).
968.29 Annotation
Since interception by government agents of an informant's telephone call was exclusively done by federal agents and was lawful under federal law, Wisconsin law did not govern its admissibility into evidence in a federal prosecution, notwithstanding that the telephone call may have been a privileged communication under Wisconsin law. United States v. Beni,
397 F. Supp. 1086.
968.30
968.30
Procedure for interception of wire, electronic or oral communications. 968.30(1)
(1) Each application for an order authorizing or approving the interception of a wire, electronic or oral communication shall be made in writing upon oath or affirmation to the court and shall state the applicant's authority to make the application and may be upon personal knowledge or information and belief. Each application shall include the following information:
968.30(1)(a)
(a) The identity of the investigative or law enforcement officer making the application, and the officers authorizing the application.
968.30(1)(b)
(b) A full and complete statement of the facts and circumstances relied upon by the applicant, to justify the applicant's belief that an order should be issued, including:
968.30(1)(b)1.
1. Details of the particular offense that has been, is being, or is about to be committed;
968.30(1)(b)2.
2. A particular description of the nature and location of the facilities from which or the place where the communication is to be intercepted;
968.30(1)(b)3.
3. A particular description of the type of communications sought to be intercepted; and
968.30(1)(b)4.
4. The identity of the person, if known, committing the offense and whose communications are to be intercepted.
968.30(1)(c)
(c) A full and complete statement whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous.
968.30(1)(d)
(d) A statement of the period of time for which the interception is required to be maintained. If the nature of the investigation is such that the authorization for interception should not automatically terminate when the described type of communication has been obtained, a particular description of facts establishing probable cause to believe that additional communications for the same type will occur thereafter.
968.30(1)(e)
(e) A full and complete statement of the facts concerning all previous applications known to the individual authorizing and making the application, made to any court for authorization to intercept, or for approval of interceptions of, wire, electronic or oral communications involving any of the same persons, facilities or places specified in the application, and the action taken by the court on each such application; and
968.30(1)(f)
(f) Where the application is for the extension of an order, a statement setting forth the results thus far obtained from the interception, or a reasonable explanation of the failure to obtain such results.
968.30(2)
(2) The court may require the applicant to furnish additional testimony or documentary evidence under oath or affirmation in support of the application. Oral testimony shall be reduced to writing.
968.30(3)
(3) Upon the application the court may enter an ex parte order, as requested or as modified, authorizing or approving interception of wire, electronic or oral communications, if the court determines on the basis of the facts submitted by the applicant that all of the following exist:
968.30(3)(a)
(a) There is probable cause for belief that an individual is committing, has committed, or is about to commit a particular offense enumerated in
s. 968.28.
968.30(3)(b)
(b) There is probable cause for belief that particular communications concerning that offense will be obtained through such interception.
968.30(3)(c)
(c) Other investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous.
968.30(3)(d)
(d) There is probable cause for belief that the facilities from which, or the place where, the wire, electronic or oral communications are to be intercepted are being used, or are about to be used, in connection with the commission of the offense, or are leased to, listed in the name of, or commonly used by the person.
968.30(4)
(4) Each order authorizing or approving the interception of any wire, electronic or oral communication shall specify:
