Chapter 968

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:

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 History History: 1971 c. 219; 1979 c. 81; 1995 a. 11, 448; 2015 a. 183.

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. State v. Jones, 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.

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

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 the defendant’s 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 two inches, and put the defendant 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 App 270, 240 Wis. 2d 15, 622 N.W.2d 1, 99-2537.

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, 117 S. Ct. 1416, 137 L. Ed. 2d 615 (1997).

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

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 a search warrant is timely if it is in compliance with sub. (1) and if the probable cause that led to its issuance still exists at the time of its execution. The defense has the burden of proof in a 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.

968.15 Annotation The deadline to execute a search warrant in sub. (1) applies to the search of the places, and seizure of the items, designated in the search warrant and does not apply to later, off-site analysis of those items that is also authorized in the warrant. However, in some cases, the later, off-site analysis of seized items can be challenged as unreasonably delayed under the 4th amendment. State v. Drachenberg, 2023 WI App 61, 409 Wis. 2d 738, 998 N.W.2d 566, 22-2060.

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).

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

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 five 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 five-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 six 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 this section and s. 968.15 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 this section or s. 968.15. 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 frozen or seized.

968.20(1) (1) Any person claiming the right to possession of property frozen or seized under s. 971.109 or 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 returned under s. 961.55 (3) or 973.075 (5), forfeited under s. 961.555 or 973.076, or subject to restitution under s. 973.20. 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, or for restitution under s. 973.20.

968.20(1m) (1m) 

968.20(1m)(a) (a) In this subsection:

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)(a)2. 2. “Dangerous weapon” has the meaning given in s. 939.22 (10).

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) (d)

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.