968.12 Annotation
Specific statutory authorization was not necessary for a judge to issue an order that authorized the procedures used to track the defendant's cell phone because the order was supported by probable cause. Nonetheless, the order did comply with the spirit of this section and s. 968.135. State v. Tate,
2014 WI 89,
357 Wis. 2d 172,
849 N.W.2d 798,
12-0336.
968.12 Annotation
A search warrant issued for the placement and use of a global positioning system (GPS) tracking device is not a warrant issued “for the purpose of seizing designated property or kinds of property” under sub. (1) and s. 968.13 and is therefore not subject to the requirements of s. 968.15 or 968.17. State v. Pinder,
2018 WI 106,
384 Wis. 2d 416,
919 N.W.2d 568,
17-0208.
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 or of a violation of s.
346.63 or a local ordinance in conformity therewith.
968.13(1)(c)
(c) Anything other than documents which may constitute evidence of any crime or of a violation of s.
346.63 or a local ordinance in conformity therewith.
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),
97-3306.
968.13 Annotation
Future electronic data generated by a global positioning system (GPS) tracking device is not “electronic data” under the control of the individual as the term is used in sub. (2). State v. Pinder,
2018 WI 106,
384 Wis. 2d 416,
919 N.W.2d 568,
17-0208.
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).
968.135 Annotation
This section protects the interests of persons whose documents are sought in addition to protecting the interests of the person on whom a subpoena is served. The defendant had standing to challenge subpoenas issued to produce her bank records. A person has standing to seek judicial intervention when that person has a personal stake in the outcome and is directly affected by the issues in controversy. State v. Popenhagen,
2008 WI 55,
309 Wis. 2d 601,
749 N.W.2d 611,
06-1114.
968.135 Annotation
This section encompasses a motion to suppress documents in violation of this section and to suppress statements directly derived from those documents. The circuit court has discretion to suppress or allow evidence obtained in violation of a statute that does not specifically require suppression of evidence obtained contrary to the statute, depending on the facts and circumstances of the case and the objectives of the statute. State v. Popenhagen,
2008 WI 55,
309 Wis. 2d 601,
749 N.W.2d 611,
06-1114.
968.135 Annotation
If a person were permitted to bring a motion to quash the subpoena for bank documents unlawfully obtained but not permitted to bring a motion to suppress incriminating statements derived directly from the unlawfully obtained bank documents, the person would not get the full benefit of the protections of the statute, and the underlying objectives of the statute would be defeated. State v. Popenhagen,
2008 WI 55,
309 Wis. 2d 601,
749 N.W.2d 611,
06-1114.
968.135 Annotation
Specific statutory authorization was not necessary for a judge to issue an order that authorized the procedures used to track the defendant's cell phone because the order was supported by probable cause. Nonetheless, the order did comply with the spirit of this section and s. 968.12. State v. Tate,
2014 WI 89,
357 Wis. 2d 172,
849 N.W.2d 798,
12-0336.
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),
96-2243.
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).
968.15
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 sub. (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).
968.15 Annotation
Law enforcement's failure to return an order and inventory within the confines of this section and s. 968.17 did not render the execution of the order unreasonable. The timely return of a warrant is a ministerial duty that does not affect the validity of the search absent prejudice to the defendant. State v. Sveum,
2010 WI 92,
328 Wis. 2d 369,
787 N.W.2d 317,
08-0658.
968.15 Annotation
A search warrant issued for the placement and use of a global positioning system (GPS) tracking device is not a warrant issued “for the purpose of seizing designated property or kinds of property” under ss. 968.12 (1) and 968.13 and is therefore not subject to the requirements of this section or s. 968.17. State v. Pinder,
2018 WI 106,
384 Wis. 2d 416,
919 N.W.2d 568,
17-0208.
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).
968.17
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).
968.17 Annotation
Law enforcement's failure to return an order and inventory within the confines of s. 968.15 and this section did not render the execution of the order unreasonable. The timely return of a warrant is a ministerial duty that does not affect the validity of the search absent prejudice to the defendant. State v. Sveum,
2010 WI 92,
328 Wis. 2d 369;
787 N.W.2d 317,
08-0658.
968.17 Annotation
A search warrant issued for the placement and use of a global positioning system (GPS) tracking device is not a warrant issued “for the purpose of seizing designated property or kinds of property” under ss. 968.12 (1) and 968.13 and is therefore not subject to the requirements of s. 968.15 or this section. State v. Pinder,
2018 WI 106,
384 Wis. 2d 416,
919 N.W.2d 568,
17-0208.
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, except for an animal taken into custody under s.
173.13 (1) or withheld from its owner under s.
173.21 (1) (a), 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, except that a court may commence a hearing, on its own initiative, to return property seized under s.
968.26. If an initial appearance under s.
970.01 is scheduled, the application for the return of the property shall be filed within 120 days of the initial appearance.
968.20(1g)
(1g) The court shall order such notice as it deems adequate to be given the district attorney and, unless notice was provided under s.
968.26 (7), to all persons who have or may have an interest in the property. The court shall hold a hearing to hear all claims to its true ownership. Except for a hearing commenced by the court, the hearing shall occur no more than 30 days after a motion is filed except that either party may, by agreement or for good cause, move the court for one extension of no more than 10 days. Any motion may be supported by affidavits or other submissions. 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.
173.21 (4) or
968.205, returned if the court finds any of the following:
968.20(1g)(a)
(a) It is likely that the final judgment will be that the state must return the property to the claimant and the property is not reasonably needed as evidence or for other investigatory reasons or, if needed, satisfactory arrangements can be made for its return for subsequent use.
968.20(1g)(am)
(am) The property is the only reasonable means for a defendant to pay for legal representation in the forfeiture or criminal proceeding, the property is not likely to be needed for payment of victim compensation, restitution, or fines, and the property is not reasonably needed as evidence or for other investigatory reasons. If the court makes this finding, it may order the return of funds or property sufficient to obtain legal counsel but less than the total amount seized and require an accounting.
968.20(1g)(b)
(b) All proceedings and investigations in which it might be required have been completed.
968.20(1h)
(1h) If a court orders property returned under sub.
(1g), the court shall order the person not to sell, transfer, assign, or otherwise encumber the property until the court orders the property either returned under s.
961.55 (3) or
973.075 (5) or forfeited under s.
961.555 or
973.076. If the person is subsequently convicted of or found to have committed the offense, the court shall order the person to surrender the returned property for proceedings under s.
961.555 or
973.076, whichever is appropriate.
968.20(1m)(a)1.
1. “Crime" includes an act committed by a juvenile or by an adult who is adjudicated incompetent that 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.
968.20(1m)(c)
(c) Subject to par.
(d), seized property that is a dangerous weapon or ammunition 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.
968.20(1m)(d)1.1. If the seized property is a firearm, the property has not been returned under this section, and a person claiming the right to possession of the firearm has applied for its return under sub.
(1), the court shall order a hearing under sub.
(1) to occur within 20 business days after the person applies for the return. If, at the hearing, all conditions under sub.
(1) have been met and the person is not prohibited from possessing a firearm under state or federal law as determined by using information provided under s.
165.63, the court shall, within 5 days of the completion of the hearing and using a return of firearms form developed by the director of state courts, order the property returned if one of the following has occurred:
968.20(1m)(d)1.a.
a. The district attorney has affirmatively declined to file charges in connection with the seizure against the person.
968.20(1m)(d)1.b.
b. All charges filed in connection with the seizure against the person have been dismissed.
968.20(1m)(d)1.c.
c. Ten months have passed since the seizure and no charges in connection with the seizure have been filed against the person.
968.20(1m)(d)1.d.
d. The trial court has reached final disposition for all charges in connection with the seizure and the person has not been adjudged guilty, or not guilty by reason of mental disease or defect, of a crime in connection with the seizure.
968.20(1m)(d)1.e.
e. The person has established that he or she had no prior knowledge of and gave no consent to the commission of the activity that led to the seizure.
968.20(1m)(d)2.
2. If an entity holding a seized firearm receives a return of firearms form, the entity shall return the firearm within 10 business days of receiving the form unless the entity determines that the person who would receive the firearm is prohibited from possessing a firearm under state or federal law. The entity shall use the information provided under s.
165.63 to aid in making the determination under this subdivision.
968.20(1m)(e)
(e) 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 or for use under s.
29.938.
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 or for use under s.
29.938.
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),
97-3306.
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),
97-3306.
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,
99-2389.
