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.
968.26(5)(a)2.
2. The period under subd.
1. may be extended only if a majority of judicial administrative district chief judges find good cause for the extension and identification of the vote of each judge is available to the public. The period under subd.
1. may be extended an unlimited number of times, but each extension may be for no more than 6 months and, for each extension, a majority of judicial administrative district chief judges must find good cause and the identification of the vote of each judge must be available to the public.
968.26(5)(b)
(b) A proceeding may not investigate a crime that was not part of the original request under sub.
(1m) or complaint under sub.
(2) (a), whichever is appropriate, unless a majority of judicial administrative district chief judges find good cause to add specified crimes and the identification of the vote of each judge is available to the public. An unlimited number of specified crimes may be added but, for each addition of a specified crime, a majority of judicial administrative district chief judges must find good cause and the identification of the vote of each judge must be available to the public.
968.26(5)(c)
(c) A judge may issue a search warrant relating to a proceeding under this section only if the judge is not presiding over that proceeding.
968.26(6)
(6) Records reflecting the costs of an investigation and proceedings under sub.
(3) are subject to the provisions of subch.
II of ch. 19. If a request to inspect or copy a record is received, but no record exists, then, notwithstanding s.
19.35 (1) (L), the recipient of the request shall provide a summary amount of the costs.
968.26(7)
(7) If property was seized during a proceeding under this section, the judge shall, at the close of the proceeding, order notice as he or she determines to be adequate to all persons who have or may have an interest in the property.
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. It does not invest in the John Doe judge an investigatory power that properly can be exercised only by members of the executive branch of government. The judge considers the testimony presented, utilizes his or her training in constitutional and criminal law and in courtroom procedure in determining the need to subpoena witnesses requested by the district attorney, in presiding at the examination of witnesses, and in determining probable cause, and ensures procedural fairness. The John Doe judge must conduct himself or herself as a neutral and detached magistrate in determining probable cause, which is the basic function of the proceeding. 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.
