Chapter 968

968.075(5)(e) (e) Notwithstanding s. 968.07 (1), a law enforcement officer shall arrest and take a person into custody if the officer has reasonable grounds to believe that the person has violated par. (a).

968.075(6) (6) Conditional release. A person arrested and taken into custody for a domestic abuse incident is eligible for conditional release. Unless there is a waiver under sub. (5) (c), as part of the conditions of any such release that occurs during the 72 hours immediately following such an arrest, the person shall be required to comply with the requirements under sub. (5) (a) and to sign the acknowledgment under sub. (5) (b). The arrested person’s release shall be conditioned upon his or her signed agreement to refrain from any threats or acts of domestic abuse against the alleged victim or other person.

968.075(6m) (6m) Officer immunity. A law enforcement officer is immune from civil and criminal liability arising out of a decision by the officer to arrest or not arrest an alleged offender, if the decision is made in a good faith effort to comply with this section.

968.075(7) (7) Prosecution policies. Each district attorney’s office shall develop, adopt and implement written policies encouraging the prosecution of domestic abuse offenses. The policies shall include, but not be limited to, the following:

968.075(7)(a) (a) A policy indicating that a prosecutor’s decision not to prosecute a domestic abuse incident should not be based:

968.075(7)(a)1. 1. Solely upon the absence of visible indications of injury or impairment;

968.075(7)(a)2. 2. Upon the victim’s consent to any subsequent prosecution of the other person involved in the incident; or

968.075(7)(a)3. 3. Upon the relationship of the persons involved in the incident.

968.075(7)(b) (b) A policy indicating that when any domestic abuse incident is reported to the district attorney’s office, including a report made under sub. (4), a charging decision by the district attorney should, absent extraordinary circumstances, be made not later than 2 weeks after the district attorney has received notice of the incident.

968.075(8) (8) Education and training. Any education and training by the law enforcement agency relating to the handling of domestic abuse complaints shall stress enforcement of criminal laws in domestic abuse incidents and protection of the alleged victim. Law enforcement agencies and community organizations with expertise in the recognition and handling of domestic abuse incidents shall cooperate in all aspects of the training.

968.075(9) (9) Annual report.

968.075(9)(a) (a) Each district attorney shall submit an annual report to the department of justice listing all of the following:

968.075(9)(a)1. 1. The number of arrests for domestic abuse incidents in his or her county as compiled and furnished by the law enforcement agencies within the county.

968.075(9)(a)1m. 1m. The number of responses law enforcement made that involved a domestic abuse incident that did not result in an arrest.

968.075(9)(a)2. 2. The number of subsequent prosecutions and convictions of the persons arrested for domestic abuse incidents.

968.075(9)(b) (b) The listing of the number of arrests, prosecutions and convictions under par. (a) shall include categories by statutory reference to the offense involved and include totals for all categories.

968.075 History History: 1987 a. 346; 1989 a. 293; 1993 a. 319; 1995 a. 304; 2005 a. 104; 2011 a. 267; 2013 a. 168 s. 20; 2013 a. 323; 2015 a. 352.

968.075 Note NOTE: 1987 Wis. Act 346, which created this section, states the legislative intent and purpose in section 1.

968.075 Annotation Questions by an officer prior to an arrest to determine which spouse was the primary physical aggressor under sub. (3) (a) 1. b. were investigatory, and Miranda, 384 U.S. 436 (1966), warnings were not required when the defendant was not deprived of freedom or questioned in a coercive environment. State v. Leprich, 160 Wis. 2d 472, 465 N.W.2d 844 (Ct. App. 1991).

968.075 Annotation Warrantless arrest and detention for bail jumping, s. 946.49, is authorized if probable cause exists that the arrestee violated the contact prohibition in sub. (5) (a) 1. after being released under ch. 969. 78 Atty. Gen. 177.

968.075 Annotation This section applies to roommates living in university residence halls, whether privately or state owned. If criteria requiring arrest under sub. (2) exist, a law enforcement officer must make a custodial arrest. 79 Atty. Gen. 109.

968.075 Annotation A Prosecutor’s View of Elder Abuse. Hanrahan. Wis. Law. Sept. 2000.

968.08 968.08 Release by law enforcement officer of arrested person. A law enforcement officer having custody of a person arrested without a warrant may release the person arrested without requiring the person to appear before a judge if the law enforcement officer is satisfied that there are insufficient grounds for the issuance of a criminal complaint against the person arrested.

968.08 History History: 1993 a. 486.

968.085 968.085 Citation; nature; issuance; release of accused.

968.085(1) (1) Nature. A citation under this section is a directive, issued by a law enforcement officer, that a person appear in court and answer criminal charges. A citation is not a criminal complaint and may not be used as a substitute for a criminal complaint.

968.085(2) (2) Authority to issue; effect. Except as provided in sub. (8), a law enforcement officer may issue a citation to any person whom he or she has reasonable grounds to believe has committed a misdemeanor. A citation may be issued in the field or at the headquarters or precinct station of the officer instead of or subsequent to a lawful arrest. If a citation is issued, the person cited shall be released on his or her own recognizance. In determining whether to issue a citation, the law enforcement officer may consider whether:

968.085(2)(a) (a) The accused has given proper identification.

968.085(2)(b) (b) The accused is willing to sign the citation.

968.085(2)(c) (c) The accused appears to represent a danger of harm to himself or herself, another person or property.

968.085(2)(d) (d) The accused can show sufficient evidence of ties to the community.

968.085(2)(e) (e) The accused has previously failed to appear or failed to respond to a citation.

968.085(2)(f) (f) Arrest or further detention appears necessary to carry out legitimate investigative action in accordance with law enforcement agency policies.

968.085(3) (3) Contents. The citation shall do all of the following:

968.085(3)(a) (a) Identify the offense and section which the person is alleged to have violated, including the date, and if material, identify the property and other persons involved.

968.085(3)(b) (b) Contain the name and address of the person cited, or other identification if that cannot be ascertained.

968.085(3)(c) (c) Identify the officer issuing the citation.

968.085(3)(d) (d) Direct the person cited to appear for his or her initial appearance in a designated court, at a designated time and date.

968.085(4) (4) Service. A copy of the citation shall be delivered to the person cited, and the original must be filed with the district attorney.

968.085(5) (5) Review by district attorney. If the district attorney declines to prosecute, he or she shall notify the law enforcement agency which issued the citation. The law enforcement agency shall attempt to notify the person cited that he or she will not be charged and is not required to appear as directed in the citation.

968.085(6) (6) Citation no bar to criminal summons or warrant. The prior issuance of a citation does not bar the issuance of a summons or a warrant for the same offense.

968.085(7) (7) Preparation of form. The judicial conference shall prescribe the form and content of the citation under s. 758.171.

968.085(8) (8) Inapplicability to certain domestic abuse cases. A law enforcement officer may not issue a citation to a person for an offense if the officer is required to arrest the person for that offense under s. 968.075 (2).

968.085 History History: 1983 a. 433; 2005 a. 104.

968.09 968.09 Warrant on failure to appear.

968.09(1) (1) When a defendant or a witness fails to appear before the court as required, or violates a term of the defendant’s or witness’s bond or the defendant’s or witness’s probation, if any, the court may issue a bench warrant for the defendant’s or witness’s arrest which shall direct that the defendant or witness be brought before the court without unreasonable delay. The court shall state on the record at the time of issuance of the bench warrant the reason therefor.

968.09(2) (2) Prior to the defendant’s appearance in court after the defendant’s arrest under sub. (1), ch. 969 shall not apply.

968.09 History History: 1971 c. 298; 1993 a. 486.

968.09 Annotation A bench warrant may be directed to all law enforcement officers in the state without regard to whether the defendant is charged with a violation of a state statute or county ordinance. The form of the warrant should be as suggested by s. 968.04 (3) (a) 7. 62 Atty. Gen. 208.

968.10 968.10 Searches and seizures; when authorized. A search of a person, object or place may be made and things may be seized when the search is made:

968.10(1) (1) Incident to a lawful arrest;

968.10(2) (2) With consent;

968.10(3) (3) Pursuant to a valid search warrant;

968.10(4) (4) With the authority and within the scope of a right of lawful inspection;

968.10(5) (5) Pursuant to a search during an authorized temporary questioning as provided in s. 968.25; or

968.10(6) (6) As otherwise authorized by law.

968.10 Note NOTE: See the notes to article I, section 11, of the Wisconsin Constitution.

968.11 968.11 Scope of search incident to lawful arrest. When a lawful arrest is made, a law enforcement officer may reasonably search the person arrested and an area within such person’s immediate presence for the purpose of:

968.11(1) (1) Protecting the officer from attack;

968.11(2) (2) Preventing the person from escaping;

968.11(3) (3) Discovering and seizing the fruits of the crime; or

968.11(4) (4) Discovering and seizing any instruments, articles or things which may have been used in the commission of, or which may constitute evidence of, the offense.

968.11 Annotation The holding of Gant, 556 U.S. 332 (2009), that Belton, 453 U.S. 454 (1981), does not authorize a vehicle search incident to a recent occupant’s arrest after the arrestee has been secured and cannot access the interior of the vehicle is adopted as the proper interpretation of the Wisconsin Constitution’s protection against unreasonable searches and seizures. State v. Dearborn, 2010 WI 84, 327 Wis. 2d 252, 786 N.W.2d 97, 07-1894.

968.11 Note NOTE: See also the notes to article I, section 11, of the Wisconsin Constitution.

968.12 968.12 Search warrant.

968.12(1) (1) Description and issuance. A search warrant is an order signed by a judge directing a law enforcement officer to conduct a search of a designated person, a designated object or a designated place for the purpose of seizing designated property or kinds of property. A judge shall issue a search warrant if probable cause is shown.

968.12(2) (2) Warrant upon affidavit. A search warrant may be based upon sworn complaint or affidavit, or testimony recorded by a phonographic reporter or under sub. (3) (d), showing probable cause therefor. The complaint, affidavit or testimony may be upon information and belief. The person requesting the warrant may swear to the complaint or affidavit before a notarial officer authorized under ch. 140 to take acknowledgments or before a judge, or a judge may place a person under oath via telephone, radio, or other means of electronic communication, without the requirement of face-to-face contact, to swear to the complaint or affidavit. The judge shall indicate on the search warrant that the person so swore to the complaint or affidavit.

968.12(3) (3) Warrant upon oral testimony.

968.12(3)(a) (a) General rule. A search warrant may be based upon sworn oral testimony communicated to the judge by telephone, radio or other means of electronic communication, under the procedure prescribed in this subsection.

968.12(3)(b) (b) Application and issuance.

968.12(3)(b)1. 1. ‘Duplicate originals.’ The person who is requesting the warrant may prepare a duplicate original warrant and read the duplicate original warrant, verbatim, to the judge. The judge shall enter, verbatim, what is read on the original warrant. The judge may direct that the warrant be modified. If the judge determines that there is probable cause for the warrant, the judge shall order the issuance of a warrant by directing the person requesting the warrant to sign the judge’s name on the duplicate original warrant. In addition, the person shall sign his or her own name on the duplicate original warrant. The judge shall immediately sign the original warrant and enter on the face of the original warrant the exact time when the warrant was ordered to be issued.

968.12(3)(b)2. 2. ‘Electronic transmission.’ The person who is requesting the warrant may sign his or her own name on the warrant and transmit it to the judge. The judge may modify the warrant. If the judge determines that there is probable cause for the warrant, the judge shall order the issuance of a warrant by signing the warrant and entering on the face of the warrant the exact time when the warrant was ordered to be issued. The judge shall immediately transmit the signed warrant to the person who requested it.

968.12(3)(c) (c) Probable cause. The finding of probable cause for a warrant upon oral testimony shall be based on the same kind of evidence as is sufficient for a warrant upon affidavit.

968.12(3)(d) (d) Recording and certification of testimony. When a caller informs the judge that the purpose of the call is to request a warrant, the judge shall place under oath each person whose testimony forms a basis of the application and each person applying for the warrant. The judge or requesting person shall arrange for all sworn testimony to be recorded either by a court reporter or by means of a voice recording device. The judge shall have the record transcribed. The transcript, certified as accurate by the judge or reporter, as appropriate, shall be filed with the court.

968.12(3)(e) (e) Contents. The contents of a warrant upon oral testimony shall be the same as the contents of a warrant upon affidavit.

968.12(3)(f) (f) Entry of time of execution. The person who executes the warrant shall enter the exact time of execution on the face of the duplicate original warrant.

968.12(4) (4) Location of search. A search warrant may authorize a search to be conducted anywhere in the state and may be executed pursuant to its terms anywhere in the state.

968.12(5) (5) Signatures. In this section, a person requesting a warrant and a judge issuing a warrant may sign by using an electronic signature, a handwritten signature, or a handwritten signature that is electronically imaged.

968.12 History History: 1971 c. 298; 1983 a. 443; Sup. Ct. Order, 141 Wis. 2d xiii (1987); Sup. Ct. Order No. 14-03, 2016 WI 29, 368 Wis. 2d xiii; 2017 a. 261; Sup. Ct. Order No. 19-01, 2019 WI 44, 386 Wis. 2d xvii; 2019 a. 125; 2021 a. 65.

968.12 Note Judicial Council Note, 1988: Sub. (2) is amended to eliminate the preference for written affidavits as the basis for search warrants. Telephoned testimony allows faster response and the transcribed record is no less adequate for review.

968.12 Note Sub. (3) (a) is amended to eliminate the preference for written affidavits as the basis for search warrants. Telephoned testimony allows faster response and the transcribed record is no less adequate for review.

968.12 Note Sub. (3) (c) is amended to eliminate the preference for written affidavits as the basis for search warrants. Telephoned testimony allows faster response and the transcribed record is no less adequate for review.

968.12 Note Sub. (3) (d) is amended to authorize that the testimony be recorded either by a stenographic reporter or a voice recording device. [Re Order effective Jan. 1, 1988]

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.

968.12 Annotation The purpose of an oath or affirmation is to impress upon the swearing individual an appropriate sense of obligation to tell the truth. The statutes do not invoke specific, mandated language or formulaic procedures in the administration of an oath or affirmation. The oath or affirmation requirement is an issue of substance, not form. State v. Moeser, 2022 WI 76, 405 Wis. 2d 1, 982 N.W.2d 45, 19-2184.

968.12 Note NOTE: See also the notes to article I, section 11, of the Wisconsin Constitution.

968.13 968.13 Search warrant; property subject to seizure.

968.13(1) (1) A search warrant may authorize the seizure of the following: