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.
History: 1993 a. 486
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).
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
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.
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.
History: 1971 c. 298
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
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
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
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
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.
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.
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.
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 s. 173.21 (4)
, returned if the court finds any of the following:
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.
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.
All proceedings and investigations in which it might be required have been completed.
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 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
, whichever is appropriate, or for restitution under s. 973.20
“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.
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.
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.
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:
The district attorney has affirmatively declined to file charges in connection with the seizure against the person.
All charges filed in connection with the seizure against the person have been dismissed.
Ten months have passed since the seizure and no charges in connection with the seizure have been filed against the person.
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.
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.
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.
Property which may not be returned to an owner under this subsection shall be disposed of under subs. (3)
Property not required for evidence or use in further investigation, unless contraband or property covered under sub. (1m)
or s. 173.12
, may be returned by the officer to the person from whom it was seized without the requirement of a hearing.
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
Except as provided in par. (a)
or sub. (1m)
, 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
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.
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
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).
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).
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
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
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
Sub. (1m) (b) forbids returning weapons to one who committed a crime involving their use; it does not require that the defendant be convicted of that crime. Agreeing to a crime being read in at the time of sentencing constitutes an admission of having committed the crime. When charged with possession of a firearm by a person ordered not to possess a firearm under an injunction, a defendant need not have them literally in his hands or on premises that he occupies but must have the right to possess them. Not having contact with the weapons for several years did not establish lack of possession, especially when the defendant was allowing the firearms to appreciate for later sale. State v. Kueny, 2006 WI App 197
, 296 Wis. 2d 658
, 724 N.W. 2d 399
When the defendant's conduct resulting in his conviction for disorderly conduct involved the use of a single firearm, the circuit court properly denied the defendant's motion for the return of that gun under sub. (1m) (b). However, with respect to other guns and ammunition that were seized following the incident, those items were not used in the commission of the disorderly conduct offense and sub. (1m) (b) did not bar their return. State v. Leonard, 2015 WI App 57
, 364 Wis. 2d 491
, 868 N.W.2d 186
Nothing in this section provides a creditor with the right to obtain a debtor's property in a proceeding under this section. A circuit court does not have the inherent authority to take property unassociated with the crime at issue and allocate that property to itself or others solely because the police happened to have seized the unassociated property at the time of arrest. This section does not provide for equitable relief. State v. Branch, 2015 WI App 65
, 364 Wis. 2d 582
, 869 N.W.2d 542
A law enforcement agency may not retain unclaimed contraband money for its own use. In the absence of an asset forfeiture proceeding initiated by the state or a judicial determination that the money constitutes contraband, a local law enforcement agency should dispose of the money as unclaimed property under s. 59.66 (2). OAG 10-09
Due process does not require states to give detailed instructions to owners who seek the return of lawfully seized property no longer needed in a police interrogation or criminal proceeding. West Covina v. Perkins, 525 U.S. 234
, 119 S. Ct. 678
, 142 L .Ed. 2d 636 (1999).
This section applies although a criminal action has not been commenced; the property owner has the burden of moving for the return of the property. Supreme Video, Inc. v. Schulz, 808 F. Supp. 1380
Preservation of certain evidence. 968.205(1)(a)
“Custody" means actual custody of a person under a sentence of imprisonment, custody of a probationer, parolee, or person on extended supervision by the department of corrections, actual or constructive custody of a person pursuant to a dispositional order under ch. 938
, supervision of a person, whether in institutional care or on conditional release, pursuant to a commitment order under s. 971.17
and supervision of a person under ch. 980
, whether in detention before trial or while in institutional care or on supervised release pursuant to a commitment order.
“Discharge date" means the date on which a person is released or discharged from custody that resulted from a criminal action, a delinquency proceeding under ch. 938
, or a commitment proceeding under s. 971.17
or ch. 980
or, if the person is serving consecutive sentences of imprisonment, the date on which the person is released or discharged from custody under all of the sentences.
Except as provided in sub. (3)
, if physical evidence that is in the possession of a law enforcement agency includes any biological material that was collected in connection with a criminal investigation that resulted in a criminal conviction, delinquency adjudication, or commitment under s. 971.17
and the biological material is from a victim of the offense that was the subject of the criminal investigation or may reasonably be used to incriminate or exculpate any person for the offense, the law enforcement agency shall preserve the physical evidence until every person in custody as a result of the conviction, adjudication, or commitment has reached his or her discharge date.
A law enforcement agency shall retain evidence to which sub. (2)
applies in an amount and manner sufficient to develop a deoxyribonucleic acid profile, as defined in s. 939.74 (2d) (a)
, from the biological material contained in or included on the evidence.
Subject to sub. (5)
, a law enforcement agency may destroy evidence that includes biological material before the expiration of the time period specified in sub. (2)
if all of the following apply:
The law enforcement agency sends a notice of its intent to destroy the evidence to all persons who remain in custody as a result of the criminal conviction, delinquency adjudication, or commitment, and to either the attorney of record for each person in custody or the state public defender.
No person who is notified under par. (a)
does either of the following within 90 days after the date on which the person received the notice:
Submits a written request for retention of the evidence to the law enforcement agency.
No other provision of federal or state law requires the law enforcement agency to retain the evidence.
A notice provided under sub. (3) (a)
shall clearly inform the recipient that the evidence will be destroyed unless, within 90 days after the date on which the person receives the notice, either a motion for testing of the evidence is filed under s. 974.07 (2)
or a written request for retention of the evidence is submitted to the law enforcement agency.
If, after providing notice under sub. (3) (a)
of its intent to destroy evidence, a law enforcement agency receives a written request for retention of the evidence, the law enforcement agency shall retain the evidence until the discharge date of the person who made the request or on whose behalf the request was made, subject to a court order issued under s. 974.07 (7)
, (9) (a)
, or (10) (a) 5.
, unless the court orders destruction or transfer of the evidence under s. 974.07 (9) (b)
or (10) (a) 5.
History: 2001 a. 16
; 2005 a. 60
Search warrant; secrecy.
A search warrant shall be issued with all practicable secrecy, and the complaint, affidavit or testimony upon which it is based shall not be filed with the clerk or made public in any way until the search warrant is executed.
Effect of technical irregularities.
No evidence seized under a search warrant shall be suppressed because of technical irregularities not affecting the substantial rights of the defendant.
The incorrect identification of a building's address in a warrant was a technical error and did not render the resulting search unreasonable when the search made was of the building identified by the informant, which was otherwise correctly identified in the warrant. State v. Nicholson, 174 Wis. 2d 542
, 497 N.W.2d 791
(Ct. App. 1993).
Mistakes on the face of a warrant were a technical irregularity under this section and the warrant met the 4th amendment standard of reasonableness when although the warrant identified the car to be searched incorrectly two times, the executing officer attached and incorporated an affidavit that correctly identified the car 3 times, describing the correct color, make, model, and style of the car along with the correct license plate, and the information was based on the executing officer's personal knowledge from prior encounters. State v. Rogers, 2008 WI App 176
, 315 Wis. 2d 60
, 762 N.W.2d 795
The following forms for use under this chapter are illustrative and not mandatory:
STATE OF WISCONSIN,
AFFIDAVIT OR COMPLAINT.
In the .... court of the .... of ....