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).
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).
968.14
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).
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).
968.16
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 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.
968.20(1m)(a)1.
1. "Crime" includes an act committed by a juvenile or incompetent adult which would have been a crime if the act had been committed by a competent adult.
968.20(1m)(b)
(b) If the seized property is a dangerous weapon or ammunition, the property shall not be returned to any person who committed a crime involving the use of the dangerous weapon or the ammunition. The property may be returned to the rightful owner under this section if the owner had no prior knowledge of and gave no consent to the commission of the crime. Property which may not be returned to an owner under this subsection shall be disposed of under
subs. (3) and
(4).
968.20(2)
(2) Property not required for evidence or use in further investigation, unless contraband or property covered under
sub. (1m) or
(1r) or
s. 173.12 or
968.205, may be returned by the officer to the person from whom it was seized without the requirement of a hearing.
968.20(3)(a)(a) First class cities shall dispose of dangerous weapons or ammunition seized 12 months after taking possession of them if the owner, authorized under
sub. (1m), has not requested their return and if the dangerous weapon or ammunition is not required for evidence or use in further investigation and has not been disposed of pursuant to a court order at the completion of a criminal action or proceeding. Disposition procedures shall be established by ordinance or resolution and may include provisions authorizing an attempt to return to the rightful owner any dangerous weapons or ammunition which appear to be stolen or are reported stolen. If enacted, any such provision shall include a presumption that if the dangerous weapons or ammunition appear to be or are reported stolen an attempt will be made to return the dangerous weapons or ammunition to the authorized rightful owner. If the return of a seized dangerous weapon other than a firearm is not requested by its rightful owner under
sub. (1) and is not returned by the officer under
sub. (2), the city shall safely dispose of the dangerous weapon or, if the dangerous weapon is a motor vehicle, as defined in
s. 340.01 (35), sell the motor vehicle following the procedure under
s. 973.075 (4) or authorize a law enforcement agency to retain and use the motor vehicle. If the return of a seized firearm or ammunition is not requested by its authorized rightful owner under
sub. (1) and is not returned by the officer under
sub. (2), the seized firearm or ammunition shall be shipped to and become property of the state crime laboratories. A person designated by the department of justice may destroy any material for which the laboratory has no use or arrange for the exchange of material with other public agencies. In lieu of destruction, shoulder weapons for which the laboratories have no use shall be turned over to the department of natural resources for sale and distribution of proceeds under
s. 29.934.
968.20(3)(b)
(b) Except as provided in
par. (a) or
sub. (1m) or
(4), a city, village, town or county or other custodian of a seized dangerous weapon or ammunition, if the dangerous weapon or ammunition is not required for evidence or use in further investigation and has not been disposed of pursuant to a court order at the completion of a criminal action or proceeding, shall make reasonable efforts to notify all persons who have or may have an authorized rightful interest in the dangerous weapon or ammunition of the application requirements under
sub. (1). If, within 30 days after the notice, an application under
sub. (1) is not made and the seized dangerous weapon or ammunition is not returned by the officer under
sub. (2), the city, village, town or county or other custodian may retain the dangerous weapon or ammunition and authorize its use by a law enforcement agency, except that a dangerous weapon used in the commission of a homicide or a handgun, as defined in
s. 175.35 (1) (b), may not be retained. If a dangerous weapon other than a firearm is not so retained, the city, village, town or county or other custodian shall safely dispose of the dangerous weapon or, if the dangerous weapon is a motor vehicle, as defined in
s. 340.01 (35), sell the motor vehicle following the procedure under
s. 973.075 (4). If a firearm or ammunition is not so retained, the city, village, town or county or other custodian shall ship it to the state crime laboratories and it is then the property of the laboratories. A person designated by the department of justice may destroy any material for which the laboratories have no use or arrange for the exchange of material with other public agencies. In lieu of destruction, shoulder weapons for which the laboratory has no use shall be turned over to the department of natural resources for sale and distribution of proceeds under
s. 29.934.
968.20(4)
(4) Any property seized, other than property covered under
s. 968.205, that poses a danger to life or other property in storage, transportation or use and that is not required for evidence or further investigation shall be safely disposed of upon command of the person in whose custody they are committed. The city, village, town or county shall by ordinance or resolution establish disposal procedures. Procedures may include provisions authorizing an attempt to return to the rightful owner substances which have a commercial value in normal business usage and do not pose an immediate threat to life or property. If enacted, any such provision shall include a presumption that if the substance appears to be or is reported stolen an attempt will be made to return the substance to the rightful owner.
968.20 Annotation
A claimant of seized property has the burden of showing that it is not contraband and is not needed as evidence in a possible retrial. Money may be applied to the payment of counsel fees. Welter v. Sauk County Clerk of Court,
53 Wis. 2d 178,
191 N.W.2d 852 (1971).
968.20 Annotation
Under sub. (1m) (b), "rightful owner" refers to an innocent person who owned a firearm or ammunition at the time an offense was committed. State v. Williams,
148 Wis. 2d 852,
436 N.W.2d 924 (Ct. App. 1989).
968.20 Annotation
Whether explicit photographs seized during the execution of a search warrant were contraband is discussed. In re Return of Property in State v. Benhoff,
185 Wis. 2d 600,
518 N.W.2d 307 (Ct. App. 1994).
968.20 Annotation
In the event that the district attorney elects not to bring a forfeiture action against seized property, a person seeking the return of the property may do so under this section, not s. 961.55 (3). Jones v. State,
226 Wis. 2d 565,
594 N.W.2d 738 (1999).
968.20 Annotation
The definition of contraband in s. 968.13 applies to this section. The burden is on the state to prove by the greater weight of the credible evidence that property is contraband not subject to return under this section. Jones v. State,
226 Wis. 2d 565,
594 N.W.2d 738 (1999).
968.20 Annotation
The term "use" in sub. (1m) (b) requires more than than the mere fact that a firearm is with a person. It must be part of the crime in some way. State v. Perez, 2000 WI App 115,
235 Wis. 2d 238,
612 N.W.2d 374.
968.20 Annotation
This section establishes an in rem proceeding to establish true ownership of property. It does not authorize granting a money judgment to the rightful owner when seized property is missing or mistakenly returned to another as a judgment in an in rem proceeding is valid only against the property and not against a defendant or a defendant's assets. City of Milwaukee v. Glass, 2001 WI 61,
243 Wis. 2d 636,
628 N.W.2d 343.
968.20 Annotation
Sub. (1m) (b) prohibits the return of a dangerous weapon to a person convicted of carrying a concealed and dangerous weapon. State v. Perez, 2001 WI 79,
244 Wis. 2d 532,
628 N.W.2d 820.
968.20 Annotation
Sub. (1m) (b) is subject to the excessive fines clause of the 8th amendment. State v. Bergquist, 2002 WI App 39,
250 Wis. 2d 792,
641 N.W.2d 179.
968.20 Annotation
Due process does not require states to give detailed instructions to owners who seek the return of lawfully seized property no longer needed in a police interrogation or criminal proceeding. West Covina v. Perkins,
525 U.S. 234, 142 L.Ed. 2d 636 (1999).
968.20 Annotation
This section applies although a criminal action has not been commenced; the property owner has the burden of moving for the return of the property. Supreme Video, Inc. v. Schulz,
808 F. Supp. 1380 (1992).
968.205
968.205
Preservation of certain evidence. 968.205(1)(a)
(a) "Custody" means actual custody of a person under a sentence of imprisonment, custody of a probationer, parolee, or person on extended supervision by the department of corrections, actual or constructive custody of a person pursuant to a dispositional order under
ch. 938, supervision of a person, whether in institutional care or on conditional release, pursuant to a commitment order under
s. 971.17 and supervision of a person under
ch. 980, whether in detention before trial or while in institutional care or on supervised release pursuant to a commitment order.
968.205(1)(b)
(b) "Discharge date" means the date on which a person is released or discharged from custody that resulted from a criminal action, a delinquency proceeding under
ch. 938, or a commitment proceeding under
s. 971.17 or
ch. 980 or, if the person is serving consecutive sentences of imprisonment, the date on which the person is released or discharged from custody under all of the sentences.
968.205(2)
(2) Except as provided in
sub. (3), if physical evidence that is in the possession of a law enforcement agency includes any biological material that was collected in connection with a criminal investigation that resulted in a criminal conviction, delinquency adjudication, or commitment under
s. 971.17 or
980.06, the law enforcement agency shall preserve the physical evidence until every person in custody as a result of the conviction, adjudication, or commitment has reached his or her discharge date.
968.205(3)
(3) Subject to
sub. (5), a law enforcement agency may destroy biological material before the expiration of the time period specified in
sub. (2) if all of the following apply:
968.205(3)(a)
(a) The law enforcement agency sends a notice of its intent to destroy the biological material to all persons who remain in custody as a result of the criminal conviction, delinquency adjudication, or commitment, and to either the attorney of record for each person in custody or the state public defender.
