968.24 Note
NOTE: See also the notes to Article I, section 11, of 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
An investigatory stop-and-frisk for the sole purpose of discovering a suspect's identity was lawful under the facts of the case. State v. Flynn,
92 Wis. 2d 427,
285 N.W.2d 710 (1979).
968.25 Annotation
This section permits an officer to search the passenger compartment of a vehicle for weapons if an individual who recently occupied the vehicle is stopped under s. 968.24 and the officer "reasonably suspects that he or another is in danger of physical injury." State v. Moretto,
144 Wis. 2d 171,
423 N.W.2d 841 (1988).
968.25 Annotation
Although
Terry provides only for an officer to conduct a carefully limited search of the outer clothing in an attempt to discover weapons that might be used to assault him or her, under the circumstances of this case, the search was properly broadened to encompass the opening of the defendant's purse, which was essentially an extension of her person where the purse was accessible by her. State v. Limon,
2008 WI App 77,
312 Wis. 2d 174,
751 N.W.2d 877,
07-1578.
968.25 Annotation
Terry tempered or torpedoed? The new law of stop and frisk. Lewis. WBB Aug. 1988.
968.25 Note
NOTE: See also the notes to Article I, section 11, of the Wisconsin Constitution.
968.255(1)(a)3.
3. A person 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. A person 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)(a)5.
5. A person arrested or otherwise lawfully detained or taken into custody, if the person will be incarcerated, imprisoned, or otherwise detained in a jail or prison with one or more other persons. Subject to
subd. 3., for the purpose of this subdivision, "detainee" does not include a juvenile who is taken into custody under
s. 938.19 and held in custody under
s. 938.209.
968.255(1)(ag)
(ag) "Jail" includes municipal prisons and rehabilitation facilities established under
s. 59.53 (8) by whatever name they are known, but does not include lockup facilities.
968.255(1)(ar)
(ar) "Lockup facilities" means those facilities of a temporary place of detention at a police station that are used exclusively to hold persons under arrest until they can be brought before a court and that are not used to hold persons pending trial who have appeared in court or have been committed to imprisonment for nonpayment of fines or forfeitures.
968.255(1)(b)
(b) "Strip search" means a search in which a detainee's genitals, pubic area, buttock or anus, or a female detainee's breast, is uncovered and either is exposed to view or is touched by a person conducting the search, except that if the detainee is a person defined in
par. (a) 5., "strip search" means a search in which a detainee's genitals, pubic area, buttock or anus, or a female detainee's breast, is uncovered and exposed to view but is not touched by a person conducting the search unless the touching is necessary to gain the detainee's cooperation with the search or unless the touching is necessary to assist a disabled detainee's cooperation with the search.
968.255(2)
(2) No person may conduct a strip search unless all of the following apply:
968.255(2)(am)
(am) The person conducting the search is of the same sex as the detainee, unless the search is a body cavity search conducted under
sub. (3).
968.255(2)(ar)
(ar) The detainee will be incarcerated, imprisoned, or otherwise detained in the jail or prison where the search is conducted for not less than 12 hours. This paragraph applies only to a detainee who meets the definition in
sub. (1) (a) 5.
968.255(2)(b)
(b) The detainee 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 detainee is concealing a weapon.
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 detainee.
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) Each law enforcement agency, as defined in
s. 165.83 (1) (b), and each facility where a strip search may be conducted pursuant to this section, shall establish written policies and procedures concerning strip searches which at least meet the minimum requirements of this section and shall provide annual training regarding the policies and procedures to any employee or agent of the agency or facility who may conduct a strip search.
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(7)(b)
(b) Is placed in or transferred to a juvenile correctional facility, as defined in
s. 938.02 (10p), or a secured residential care center for children and youth, as defined in
s. 938.02 (15g).
968.255 Annotation
A visual body cavity search is more intrusive than a strip search. It is not objectively reasonable for police to conclude that consent to a strip search includes consent to scrutiny of body cavities. State v. Wallace,
2002 WI App 61,
251 Wis. 2d 625,
642 N.W.2d 549,
00-3524.
968.255 Annotation
This section is a regulatory statute aimed at controlling law enforcement officers' conduct via criminal penalties. It does not mention probable cause and authorizes no motions to quash or limit the search. When there was no violation of any constitutional right but merely of the statute itself, the violation of the statute provided no basis for a suppression motion. State v. Minett,
2014 WI App 40,
353 Wis. 2d 484,
846 N.W.2d 831,
13-0634.
968.255 Annotation
Intrusive searches of the mouth, nose, or ears are not covered by sub. (3). However, searches of those body orifices should be conducted by medical personnel to comply with the 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. 968.26(1)(1) If a district attorney requests a judge to convene a proceeding to determine whether a crime has been committed in the court's jurisdiction, the judge shall convene a proceeding described under
sub. (3) and shall subpoena and examine any witnesses the district attorney identifies.
968.26(2)(a)(a) Except in
par. (am), in this subsection, "district attorney" includes a prosecutor to whom the judge has referred the complaint under
par. (am).
968.26(2)(am)
(am) If a person who is not a district attorney complains to a judge that he or she has reason to believe that a crime has been committed within the judge's jurisdiction, the judge shall refer the complaint to the district attorney or, if the complaint may relate to the conduct of the district attorney, to another prosecutor under
s. 978.045.
968.26(2)(b)
(b) If a district attorney receives a referral under
par. (am), the district attorney shall, within 90 days of receiving the referral, issue charges or refuse to issue charges. If the district attorney refuses to issue charges, the district attorney shall forward to the judge in whose jurisdiction the crime has allegedly been committed all law enforcement investigative reports on the matter that are in the custody of the district attorney, his or her records and case files on the matter, and a written explanation why he or she refused to issue charges. The judge may require a law enforcement agency to provide to him or her any investigative reports that the law enforcement agency has on the matter. The judge shall convene a proceeding as described under
sub. (3) if he or she determines that a proceeding is necessary to determine if a crime has been committed. When determining if a proceeding is necessary, the judge may consider the law enforcement investigative reports, the records and case files of the district attorney, and any other written records that the judge finds relevant.
968.26(2)(c)
(c) In a proceeding convened under
par. (b), the judge shall subpoena and examine under oath the complainant and any witnesses that the judge determines to be necessary and appropriate to ascertain whether a crime has been committed and by whom committed. The judge shall consider the credibility of testimony in support of and opposed to the person's complaint.
968.26(2)(d)
(d) In a proceeding convened under
par. (b), the judge may issue a criminal complaint if the judge finds sufficient credible evidence to warrant a prosecution of the complaint. The judge shall consider, in addition to any testimony under
par. (c), the law enforcement investigative reports, the records and case files of the district attorney, and any other written reports that the judge finds relevant.
968.26(3)
(3) The extent to which the judge may proceed in an examination under
sub. (1) or
(2) 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. 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 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 (1973).
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 (1974).
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 (1971).
968.26 Annotation
No restriction under the 4th or 5th amendment precludes 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 (1977).
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 (1977).
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 721,
546 N.W.2d 406 (1996),
93-2445.
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 605,
571 N.W.2d 385 (1997),
96-2361.
968.26 Annotation
A nonlawyer's questioning of a witness on the state's behalf at a John Doe hearing even if constituting the unauthorized practice of law did not require exclusion of the testimony at trial. State v. Noble,
2002 WI 64,
253 Wis. 2d 206,
646 N.W.2d 38,
99-3271.
968.26 Annotation
Article VII, Section 5 (3), read together with ss. 808.03 (2) and 809.51 (1) is sufficiently broad in scope to permit the court of appeals to exercise supervisory jurisdiction over the actions of a judge presiding over a John Doe proceeding. When rendering judicial decisions in the context of a John Doe proceeding, the judge must create a record for possible review. On review of a petition for a writ stemming from a secret John Doe proceeding, the court of appeals may seal parts of a record in order to comply with existing secrecy orders issued by the John Doe judge. Unnamed Persons Numbers 1, 2, and 3 v. State,
2003 WI 30,
260 Wis. 2d 653,
660 N.W.2d 260,
01-3220.
968.26 Annotation
A John Doe judge must have the authority to disqualify counsel, and may permit argument by counsel when necessary to ensure procedural fairness. Unnamed Persons Numbers 1, 2, and 3 v. State,
2003 WI 30,
260 Wis. 2d 653,
660 N.W.2d 260,
01-3220.
968.26 Annotation
The John Doe judge erred as a matter of law by requiring an oath of secrecy from a witness's counsel when a secrecy order was in effect. Individual Subpoenaed to Appear at Waukesha County John Doe Case No. 2003 JD 001 v. Davis,
2005 WI 70,
281 Wis. 2d 431,
697 N.W.2d 803,
04-1804.
968.26 Annotation
The circuit judge erred when in reviewing a John Doe petition he reviewed police reports containing information casting doubt on assertions in the petition and explained that his review of the petition and the police reports led him to conclude that the petitioner failed to allege facts sufficient to raise a reasonable belief that a crime has been committed. This section does not permit this sort of analysis at the threshold stage of determining whether a petition contains reason to believe that a crime has been committed. Williams v. Fiedler,
2005 WI App 91,
282 Wis. 2d 486,
698 N.W.2d 294,
04-0175.
968.26 Annotation
A John Doe judge has exclusive authority to subpoena witnesses in a John Doe proceeding based upon the language of this section. Hipp v. Circuit Court for Milwaukee County,
2008 WI 67,
310 Wis. 2d 342,
750 N.W.2d 837,
07-0230.
968.26 Annotation
The judge in a John Doe hearing is not required to examine all the witnesses a complainant produces and to issue subpoenas to all the witnesses a complainant wishes to produce. This section extends judicial discretion in a John Doe hearing not only to the scope of a witness's examination, but also to whether a witness need testify at all. Robins v. Madden,
2009 WI 46,
317 Wis. 2d 364,
766 N.W.2d 542,
07-1526.
968.26 AnnotationUnder sub. (3), as revised by
2009 Wis. Act 24, a John Doe judge must potentially undertake four inquiries: 1) decide whether to refer the John Doe complaint to the district attorney in the first instance; 2) decide whether it is necessary to conduct any additional proceedings if the district attorney chooses not to issue charges; 3) determine what, if any, witnesses to subpoena and examine if additional proceedings are deemed necessary; and 4) decide whether to issue a criminal complaint if the judge finds that the additional proceedings have produced sufficient credible evidence to warrant prosecution. Naseer v. Miller,
2010 WI App 142,
329 Wis. 2d 724,
793 N.W.2d 209,
09-2578.
968.26 AnnotationUnder the statute, as amended by
2009 Wis. Act 24, a judge has a mandatory duty to refer a John Doe complaint to the district attorney only if the four corners of the complaint provide a sufficient factual basis to establish an objective reason to believe that a crime has been committed in the judge's jurisdiction, the same as under the prior statute. Naseer v. Miller,
2010 WI App 142,
329 Wis. 2d 724,
793 N.W.2d 209,
09-2578.
968.26 Annotation
Applicable law allows electronic transmission of certain confidential case information among clerks of circuit court, county sheriff's offices, and the Department of Justice through electronic interfaces involving the Department of Administration's Office of Justice Assistance, specifically including electronic data messages about an arrest warrant if the warrant was issued in John Doe proceedings that have been sealed under this section.
OAG 2-10.
968.26 Annotation
Limits of judge's authority in presiding over or conducting John Doe proceedings are discussed.
76 Atty. Gen. 217.
968.265
968.265
Lie detector tests; sexual assault victims. 968.265(2)
(2) If a person reports to a law enforcement officer that he or she was the victim of an offense under
s. 940.22 (2),
940.225,
948.02 (1) or
(2), or
948.085, no law enforcement officer may in connection with the report order, request, or suggest that the person submit to a test using a lie detector, or provide the person information regarding tests using lie detectors unless the person requests information regarding tests using lie detectors.
968.265(3)
(3) If a person reports to a district attorney that he or she was the victim of an offense under
s. 940.22 (2),
940.225,
948.02 (1) or
(2), or
948.085, no district attorney may do any of the following in connection with the report:
968.265(3)(a)
(a) Order that the person submit to a test using a lie detector.
968.265(3)(b)
(b) Suggest or request that the person submit to a test using a lie detector without first providing the person with notice and an explanation of his or her right not to submit to such a test.
968.265 History
History: 2003 a. 224;
2005 a. 277.
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:
