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.
968.205(3)(b)
(b) No person who is notified under
par. (a) does either of the following within 90 days after the date on which the person received the notice:
968.205(3)(b)2.
2. Submits a written request to preserve the biological material to the law enforcement agency or district attorney.
968.205(3)(c)
(c) No other provision of federal or state law requires the law enforcement agency to preserve the biological material.
968.205(4)
(4) A notice provided under
sub. (3) (a) shall clearly inform the recipient that the biological material will be destroyed unless, within 90 days after the date on which the person receives the notice, either a motion for testing of the material is filed under
s. 974.07 (2) or a written request to preserve the material is submitted to the law enforcement agency.
968.205(5)
(5) If, after providing notice under
sub. (3) (a) of its intent to destroy biological material, a law enforcement agency receives a written request to preserve the material, the law enforcement agency shall preserve the material until the discharge date of the person who made the request or on whose behalf the request was made, subject to a court order issued under
s. 974.07 (7),
(9) (a), or
(10) (a) 5., unless the court orders destruction or transfer of the biological material under
s. 974.07 (9) (b) or
(10) (a) 5.
968.205 History
History: 2001 a. 16.
968.21
968.21
Search warrant; secrecy. A search warrant shall be issued with all practicable secrecy, and the complaint, affidavit or testimony upon which it is based shall not be filed with the clerk or made public in any way until the search warrant is executed.
968.22
968.22
Effect of technical irregularities. No evidence seized under a search warrant shall be suppressed because of technical irregularities not affecting the substantial rights of the defendant.
968.22 Annotation
The incorrect identification of a building's address in a warrant was a technical error and did not render the resulting search unreasonable when the search made was of the building identified by the informant, which was otherwise correctly identified in the warrant. State v. Nicholson,
174 Wis. 2d 542,
497 N.W.2d 791 (Ct. App. 1993).
968.22 Note
NOTE: See also the notes to Article I, section 11 of the Wisconsin constitution.
968.23
968.23
Forms. The following forms for use under this chapter are illustrative and not mandatory:
STATE OF WISCONSIN,
.... County.
AFFIDAVIT OR COMPLAINT.
In the .... court of the .... of ....
A. B., being duly sworn, says that on the .... day of ...., A. D., .... (year), in said county, in and upon certain premises in the (city, town or village) of .... in said county, occupied by .... and more particularly described as follows: (describe the premises) there are now located and concealed certain things, to wit: (describe the things to be searched for) (possessed for the purpose of evading or violating the laws of the state of Wisconsin and contrary to section .... of the Wisconsin statutes) (or, which things were stolen from their true owner, in violation of section .... of the Wisconsin statutes) (or, which things were used in the commission of (or may constitute evidence of) a crime to wit: (describe crime) committed in violation of section .... of the Wisconsin statutes).
The facts tending to establish the grounds for issuing a search warrant are as follows: (set forth evidentiary facts showing probable cause for issuance of warrant).
Wherefore, the said A. B. prays that a search warrant be issued to search such premises for the said property, and to bring the same, if found, and the person in whose possession the same is found, before the said court (or, before the .... court for .... County), to be dealt with according to law.
(Signed) A. B.
Subscribed and sworn to before me this .... day of ...., .... (year)
...., Judge of the .... Court.
STATE OF WISCONSIN,
.... County.
SEARCH WARRANT.
In the .... court of the .... of ....
THE STATE OF WISCONSIN, To the sheriff or any constable or any peace officer of said county:
Whereas, A. B. has this day complained (in writing) to the said court upon oath that on the .... day of ...., A. D., .... (year), in said county, in and upon certain premises in the (city, town or village) of .... in said county, occupied by .... .... and more particularly described as follows: (describe the premises) there are now located and concealed certain things, to wit: (describe the things to be searched for) (possessed for the purpose of evading or violating the laws of the state of Wisconsin and contrary to section .... of the Wisconsin statutes) (or, which things were stolen from their true owner, in violation of section .... of the Wisconsin statutes) (or which things were used in the commission of (or, may constitute evidence of) a crime, to wit: (describe crime) committed in violation of section .... of the Wisconsin statutes) and prayed that a search warrant be issued to search said premises for said property.
Now, therefore, in the name of the state of Wisconsin you are commanded forthwith to search the said premises for said things, and if the same or any portion thereof are found, to bring the same and the person in whose possession the same are found, and return this warrant within 48 hours before the said court (or, before the .... court for .... County), to be dealt with according to law.
Dated this .... day of ...., .... (year)
...., Judge of the .... Court.
