Chapter DOC 328

DOC 328.22 DOC 328.22 Search and seizure; pat-down.

DOC 328.22(1) (1) General policy. A search of an offender, the offender’s living quarters or property, or seizure of the offender’s body contents may be made at any time, but only in accordance with this section. Strip searches or body cavity searches are prohibited. For purposes of this section, the mouth is not a body cavity.

DOC 328.22(2) (2) Justification. A search or seizure is appropriate and consistent with the goals and objectives of supervision under any of the following circumstances:

DOC 328.22(2)(a) (a) When an employee has reasonable grounds to believe the offender possesses contraband or evidence of a rule violation on or within his or her person or property.

DOC 328.22(2)(b) (b) With the consent of the offender, when a search or seizure is necessary to verify compliance with the rules.

DOC 328.22(2)(c) (c) When ordered by the court.

DOC 328.22(3) (3) Reasonable grounds. In deciding whether there are reasonable grounds to believe that an offender has used, possesses or is under the influence of an intoxicating substance, that an offender possesses contraband, or that an offender’s living quarters or property contain contraband or evidence of a rule violation, an employee may consider any of the following:

DOC 328.22(3)(a) (a) The observations of employees.

DOC 328.22(3)(b) (b) Information provided by informants. In evaluating the reliability of the information and the informant, the employee shall consider the following:

DOC 328.22(3)(b)1. 1. The detail, consistency, and corroboration of the information provided by the informant.

DOC 328.22(3)(b)2. 2. Whether the informant has provided reliable information in the past and whether the informant has reason to provide inaccurate information.

DOC 328.22(3)(c) (c) The activity of the offender.

DOC 328.22(3)(d) (d) Information provided by the offender.

DOC 328.22(3)(e) (e) The experience of the employee with that offender or in a similar circumstance.

DOC 328.22(3)(f) (f) Prior seizures of contraband from the offender.

DOC 328.22(4) (4) Informing the offender. Whenever possible before a search or seizure is conducted, an employee shall inform the offender of all of the following:

DOC 328.22(4)(a) (a) A search or seizure is about to occur.

DOC 328.22(4)(b) (b) The reason for the search or seizure.

DOC 328.22(4)(c) (c) The method for conducting the search or seizure.

DOC 328.22(4)(d) (d) The place where the search or seizure is to occur.

DOC 328.22(4)(e) (e) The consequences of not complying with the search or seizure.

DOC 328.22(5) (5) Pat down. A pat-down may be conducted at any time an employee has a reasonable concern that an offender may possess a weapon or other object which may be used as a weapon. After a pat-down, if the employee has reasonable grounds to believe that the offender may be in possession of a weapon or contraband, the employee may proceed with a personal search of the offender.

DOC 328.22(6) (6) Personal search.

DOC 328.22(6)(a) (a) Any staff member may conduct a personal search of an offender.

DOC 328.22(6)(b) (b) Every personal search shall be documented in the offender’s case record.

DOC 328.22(7) (7) Search of living quarters or property.

DOC 328.22(7)(a) (a) An agent shall obtain supervisory approval prior to any search under this subsection.

DOC 328.22(7)(b) (b) The employee who conducted the search shall complete a written report of every search of an offender’s living quarters or property. The report shall state all of the following:

DOC 328.22(7)(b)1. 1. The identity of the offender whose living quarters or property was searched.

DOC 328.22(7)(b)2. 2. The identity of any employee who conducted the search and any other persons present during the search.

DOC 328.22(7)(b)3. 3. The date, time, and place of the search.

DOC 328.22(7)(b)4. 4. The reason for conducting the search.

DOC 328.22(7)(b)5. 5. Any items seized pursuant to the search with documentation of chain of custody.

DOC 328.22(7)(b)6. 6. Whether any damage was done to the premises or property during the search.

DOC 328.22(7)(c) (c) During searches an employee may read business records and personal mail of offenders. The employee may not read any privileged legal materials, including any communication between an offender and an attorney, or any materials prepared in anticipation of a lawsuit.

DOC 328.22(7)(d) (d) An employee may not forcibly enter any property to conduct a search.

DOC 328.22(8) (8) Seizure of body contents.

DOC 328.22(8)(a) (a) Only licensed or certified medical staff may take a blood or stool sample.

DOC 328.22(8)(b) (b) When the agent or supervisor requires the collection of a urine specimen to be observed, an employee of the same sex as the offender shall observe and collect the urine specimen.

DOC 328.22(8)(c) (c) Any trained employee may conduct breathalyzer tests or collect hair or other physical material samples.

DOC 328.22(8)(d) (d) A report of a test on a specimen of an offender’s urine, breath, blood, stool, hair, fingernails, saliva, semen, or other identifying physical material produced by the offender may be presented as evidence in a revocation hearing. The expert who made the findings need not be called as a witness in a hearing or proceeding under this chapter, ch. DOC 331, or ch. HA 2.

DOC 328.22 History History: CR 10-126: cr. Register June 2013 No. 690, eff. 7-1-13.

DOC 328.23 DOC 328.23 Contraband.

DOC 328.23(1) (1) Any employee who reasonably believes that an item in an offender’s possession is contraband may seize the item, whether or not the employee believes a violation of the offender’s rules or conditions of supervision has occurred. Any items seized must be documented with chain of custody.

DOC 328.23(2) (2) The supervisor shall dispose of seized contraband after all proceedings in which it may be required have been completed. Disposition shall be as follows:

DOC 328.23(2)(a) (a) All confiscated currency, whose true owner cannot be determined, shall be placed in the general fund.

DOC 328.23(2)(b) (b) Checks and other negotiable instruments shall be returned to the maker. If it is not possible to determine an address for the maker of the check, the check shall be destroyed.

DOC 328.23(2)(c) (c) U.S. bonds and other securities shall be held in the department’s cashier’s office, and upon proof of ownership, the item shall be returned to the owner.

DOC 328.23(2)(d) (d) Property items shall be returned at the offender’s expense to the owner if the owner is known unless the owner transferred the property in an unauthorized manner. Property items which an offender is not permitted to possess and which are not illegal may be transferred to another person at the offender’s expense. Property items of inherent value which were not returned to the owner shall be sold through the department’s purchasing officer and money received shall be placed in the general fund.

DOC 328.23(2)(e) (e) Intoxicating substances, such as alcohol or controlled substances, shall be disposed of in accordance with division policy.

DOC 328.23(2)(f) (f) Firearms not required for use as evidence shall be disposed of in accordance with s. 968.20, Stats.

DOC 328.23(2)(g) (g) Any item originally assigned as property of the state shall be returned to service.

DOC 328.23 History History: CR 10-126: cr. Register June 2013 No. 690, eff. 7-1-13.

DOC 328.24 DOC 328.24 Absconding.

DOC 328.24(1) (1) If an offender absconds, an employee shall issue an apprehension request.

DOC 328.24(2) (2) If an offender committed under s. 961.47 (1), Stats., absconds and is not located within 90 days, an employee shall request that the committing court issue a capias ordering apprehension of the offender, vacating the order committing the offender to the custody of the department, or relieve the department of further responsibility for the offender. Following court action, the agent shall cancel the apprehension request.

DOC 328.24(3) (3) Once the offender is apprehended and becomes available, an employee shall conduct a violation investigation and make a determination regarding disposition. The employee shall also cancel the apprehension request.

DOC 328.24 History History: CR 10-126: cr. Register June 2013 No. 690, eff. 7-1-13.

DOC 328.25 DOC 328.25 Tolled time.

DOC 328.25(1) (1) The department may toll all or any part of the period of time between the date of the violation and the date of an order of revocation or reinstatement is entered, subject to sentence credit for time the offender spent in custody pursuant to s. 973.155 (1), Stats. If the offender is subsequently reinstated rather than revoked, time shall be tolled only if the reinstatement order concludes that the offender did in fact violate the rules or conditions of his or her supervision.

DOC 328.25(2) (2) A division of hearings and appeals administrative law judge or the secretary shall determine the amount of time to be tolled.

DOC 328.25 History History: CR 10-126: cr. Register June 2013 No. 690, eff. 7-1-13.

DOC 328.26 DOC 328.26 Reinstatement.

DOC 328.26(1) (1) The department may reinstate an offender upon the offender’s request and written admission of a violation of the rules or conditions of supervision sufficient to warrant revocation.

DOC 328.26(2) (2) 

DOC 328.26(2)(a) (a) The request under sub. (1) shall acknowledge both of the following:

DOC 328.26(2)(a)1. 1. The date of the violation.

DOC 328.26(2)(a)2. 2. The offender’s awareness that the period between the date of violation and the date of reinstatement or revocation may be tolled.

DOC 328.26(2)(b) (b) An offender’s request for reinstatement and written admission shall be submitted to the regional chief to determine whether reinstatement is appropriate.

DOC 328.26(2)(c) (c) A copy of the regional chief’s decision, including the reasons for it, shall be sent to the offender and the original returned to the agent.

DOC 328.26(2)(d) (d) If the regional chief determines that reinstatement should not occur, the revocation process may be initiated in accordance with s. DOC 331.03.

DOC 328.26 History History: CR 10-126: cr. Register June 2013 No. 690, eff. 7-1-13.

DOC 328.27 DOC 328.27 Custody and detention. Whenever feasible, an employee shall rely on law enforcement authorities to take an offender into custody. When law enforcement assistance is not available, the employee shall decide whether to disengage and issue an apprehension request or take the offender into custody in accordance with this section.

DOC 328.27(1) (1) Custody order. An agent shall order an offender into custody if the offender is alleged to have been involved in assaultive or dangerous conduct. A regional chief may permit exceptions to this subsection.

DOC 328.27(2) (2) Detention. An offender may be taken into custody and detained for one of the following purposes:

DOC 328.27(2)(a) (a) For investigation of an alleged violation of a rule or condition of supervision.

DOC 328.27(2)(b) (b) After an alleged violation to determine whether to commence revocation proceedings.

DOC 328.27(2)(c) (c) For disciplinary purposes.

DOC 328.27(2)(d) (d) To prevent a possible violation by the offender.

DOC 328.27(2)(e) (e) Pending placement in a program as an alternative to revocation.

DOC 328.27(3) (3) Length of detention. An offender may be detained in accordance with one or more of the following:

DOC 328.27(3)(a) (a) Except as provided in sub. (6) and (7), an agent may authorize the detention of an offender under sub. (1) or (2) for a maximum of 5 working days.

DOC 328.27(3)(b) (b) A supervisor may approve additional detention for a maximum of 5 working days.

DOC 328.27(3)(c) (c) A regional chief may approve detention for an additional 5 working days.

DOC 328.27(3)(d) (d) The administrator may authorize detention beyond the foregoing time limits.

DOC 328.27(3)(e) (e) An offender detained under sub. (2) (c) may be detained with supervisory approval for only a maximum of 5 working days.

DOC 328.27(3)(f) (f) This subsection does not apply to detentions pending final revocation which are authorized by an agent’s immediate supervisor under s. DOC 331.05 (7) when a preliminary hearing is not held pursuant to s. DOC 331.05 (2).

DOC 328.27(4) (4) Custody decisions. Custody decisions during revocation proceedings shall be made in accordance with s. DOC 331.05 (7).

DOC 328.27(5) (5) Detention in a state correctional facility. The department may detain an offender on parole, extended supervision, or on felony probation with an imposed and stayed sentence in a state correctional institution including a probation and parole holding facility pending revocation proceedings.