968.24 Annotation
Terry and this section apply to confrontations between the police and citizens in public places only. For private residences and hotels, in the absence of a warrant, the police must have probable cause and exigent circumstances or consent to justify an entry. Reasonable suspicion is not a prerequisite to an officer's seeking consent to enter a private dwelling. State v. Stout,
2002 WI App 41,
250 Wis. 2d 768,
641 N.W.2d 474,
01-0904.
968.24 Annotation
To perform a protective search for weapons, an officer must have reasonable suspicion that a person may be armed and dangerous. A court may consider an officer's belief that his, her, or another's safety is threatened in finding reasonable suspicion, but such a belief is not a prerequisite to a valid search. There is no per se rule justifying a search any time an individual places his or her hands in his or her pockets contrary to police orders. The defendant's hand movements must be considered under the totality of the circumstances of the case. State v. Kyles,
2004 WI 15,
269 Wis. 2d 1,
675 N.W.2d 449,
02-1540.
968.24 Annotation
Weaving within a single traffic lane does not alone give rise to the reasonable suspicion necessary to conduct an investigative stop of a vehicle. The reasonableness of a stop must be determined based on the totality of the facts and circumstances. State v. Post,
2007 WI 60,
301 Wis. 2d 1,
733 N.W.2d 634,
05-2778.
968.24 Annotation
The potential availability of an innocent explanation does not prohibit an investigative stop. If any reasonable inference of wrongful conduct can be objectively discerned, notwithstanding the existence of other innocent inferences that could be drawn, the officers have the right to temporarily detain the individual for the purpose of inquiry. State v. Limon,
2008 WI App 77,
312 Wis. 2d 174,
751 N.W.2d 877,
07-1578.
968.24 Annotation
When a person who is temporarily detained for investigation pursuant to a Terry stop is then moved to another location, courts conduct a two-part inquiry: First, was the person moved within the vicinity of the stop? Second, was the purpose in moving the person within the vicinity reasonable? Ten miles is too distant a transportation to be within the vicinity so long as the temporary detention is supported by no more than a reasonable suspicion. In order for the transporting of a defendant to a hospital that was not in the vicinity of the stop to have been lawful, it must have been supported by probable cause to arrest or by a reasonable exercise of the community caretaker function. State v. Blatterman,
2015 WI 46,
362 Wis. 2d 138,
864 N.W.2d 26,
13-2107.
968.24 Annotation
Although this section and s. 345.22 pertain only to crimes and violations of traffic regulations, neither statute forecloses traffic stops to enforce non-traffic civil forfeiture offenses. State v. Iverson,
2015 WI 101,
365 Wis. 2d 302,
871 N.W.2d 661,
14-0515.
968.24 Annotation
The statement in
Popke, 2009 WI 37, that “a police officer may . . . conduct a traffic stop when, under the totality of the circumstances, he or she has grounds to reasonably suspect that a crime or traffic violation has been or will be committed," did not purport to circumscribe the universe of possible scenarios within which traffic stops permissibly may occur, or to make such limits contingent on whether the legislature has titled a particular law a “traffic regulation." A reasonable suspicion that a violation of the littering statute, s. 287.81, a non-traffic civil forfeiture offense, had occurred justified a brief and limited traffic stop. The more onerous standard of probable cause would also therefore justify a traffic stop. State v. Iverson,
2015 WI 101,
365 Wis. 2d 302,
871 N.W.2d 661,
14-0515.
968.24 Annotation
The principles of
Terry permit a state to require a suspect to disclose his or her name in the course of a
Terry stop and allow imposing criminal penalties for failing to do so. Hiibel v. Sixth Judicial District Court of Nevada, Humboldt County,
542 U.S. 177,
124 S. Ct. 2451,
159 L. Ed. 2d 292 (2004).
968.24 Annotation
When the defendant's refusal to disclose his name was not based on any articulated real and appreciable fear that his name would be used to incriminate him, or that it would furnish a link in the chain of evidence needed to prosecute him, application of a criminal statute requiring disclosure of the person's name when the police officer reasonably suspected the person had committed a crime did not violate the protection against self-incrimination. Hiibel v. Sixth Judicial District Court of Nevada, Humboldt County,
542 U.S. 177,
124 S. Ct. 2451,
159 L. Ed. 2d 292 (2004).
968.24 Annotation
Cell Phone Tips of Crime and `Reasonable Suspicion.' Andregg. Wis. Law. June 2005.
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.
968.255(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)(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. A physician, physician assistant, or registered nurse acting under this section, the employer of any such person, and any health care facility where the search is conducted have immunity from civil or criminal liability under s.
895.535.
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(1b)(a)2.
2. A violation of any of the following if it is a Class E, F, G, H, or I felony:
968.26(1b)(a)2.a.
a. Section
940.04,
940.11,
940.19 (2),
(4),
(5), or
(6),
940.195 (2),
(4),
(5), or
(6),
940.20,
940.201,
940.203,
940.205,
940.207,
940.208,
940.22 (2),
940.225 (3),
940.29,
940.302 (2) (c),
940.32,
941.32,
941.38 (2),
942.09 (2),
943.10,
943.205,
943.32 (1),
946.43,
946.44,
946.47,
946.48,
948.02 (3),
948.03 (2) (b) or
(c),
(3), or
(4),
948.04,
948.055,
948.095,
948.10 (1) (a),
948.11,
948.13 (2) (a),
948.14,
948.20,
948.23 (1),
(2), or
(3) (c) 2. or
3., or
948.30 (1).
968.26(1b)(a)5.
5. Any conduct that is prohibited by state law and punishable by fine or imprisonment or both if the individual who allegedly participated in the conduct was a law enforcement officer; a correctional officer; or a state probation, parole, or extended supervision officer and the individual was engaged in his or her official duties at the time of the alleged conduct.
968.26(1m)
(1m) 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)(a)(a) Except as provided in sub.
(5), the extent to which the judge may proceed in an examination under sub.
(1m) or
(2) is within the judge's discretion.
968.26(3)(c)
(c) 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.
968.26(3)(d)
(d) 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(4)(a)(a) The judge may enter a secrecy order upon a showing of good cause by the district attorney. A secrecy order under this paragraph may apply to only the judge, a district attorney or other prosecuting attorney who participates in a proceeding under this section, law enforcement personnel admitted to a proceeding under this section, an interpreter who participates in a proceeding under this section, or a reporter who makes or transcribes a record of a proceeding under this section. No secrecy order under this section may apply to any other person.
968.26(4)(b)
(b) If a judge enters a secrecy order under par.
(a), the judge shall terminate that secrecy order if any person applies to the judge for the termination and establishes that the good cause shown under par.
(a) no longer exists. If a judge terminates a secrecy order entered under par.
(a), the identity of the subject of the proceeding under this section may not be disclosed without the subject's consent, except as provided in par.
(c).
968.26(4)(c)
(c) If a criminal complaint is filed following a proceeding in which the judge entered a secrecy order, the order is terminated at the initial appearance and s.
971.23 governs disclosure of information from a proceeding under this section.
968.26(4)(d)
(d) Any person who violates a secrecy order entered under par.
(a) is subject to a fine not to exceed $10,000 or imprisonment not to exceed 9 months, or both.
968.26(5)(a)1.1. Except as provided in subd.
2., no proceeding may last longer than the following:
968.26(5)(a)1.a.
a. If the proceeding begins under sub.
(1m), 6 months beginning on the day the district attorney requests the judge to convene the proceeding.
968.26(5)(a)1.b.
b. If the proceeding begins under sub.
(2), 6 months beginning on the day the district attorney forwards under sub.
(2) (b) to a judge all reports, records and case files, and an explanation of his or her refusal.
